Saroj Devi (Now Deceased) Through ... vs Bank Of India & Ors.
2013 Latest Caselaw 3596 Del

$~10
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Decided on: 14.08.2013
+                  W.P.(C) 3710/2013, C.M. APPL.6941/2013
       SAROJ DEVI (NOW DECEASED) THROUGH L.RS
                                                 ..... Petitioner
                     Through : Sh. K.K. Jha, Advocate and Sh.
                     Rameshwar Prasad, LR.

                          versus

       BANK OF INDIA & ORS                ..... Respondents

Through : Sh. S.V. Tyagi, Advocate, for Bank of India.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

1. The present Writ Petition questions an order of the Debts Recovery Appellate Tribunal (DRAT) dated 12.12.2012 in M.A. 426/2012. The DRAT rejected the petitioner's appeal, which in turn had questioned the Debt Recovery Tribunal's (DRT's) order refusing the request for an enquiry into the petitioner's indigence in respect of payment of Court Fees, in support of the Counter Claim preferred.

2. The brief facts are that the original borrower, Smt. Saroj Devi was impleaded as defendant/respondent in recovery proceedings filed by the Bank of India (BOI) before the DRT. The said borrower

W.P.(C)3710/2013 Page 1 apparently had been proceeded against ex-parte and the bank's petition was decreed on merits. The borrower appealed to the DRAT, by filing M.A. No. 273/2001. Before the DRAT, the borrower had contended that she was indigent and unable to pay the Court Fees. The DRAT permitted the enquiry and after considering the report of the Registrar of the Tribunal, allowed the legal representatives of Smt. Saroj Devi, (who had died by then), to prosecute the appeal as indigent persons. This is evident from the following order of the DRAT, made on 16.02.2006:

"Present: Mr. Rajeeve Mehra, counsel for the appellants.

Mr. H.S. Kohli, counsel for the 1st respondent-bank.

On the question of payment of court fee enabling the LRs of late Mrs. Saroj Devi to prosecute the appeal, the Registrar of this Tribunal was directed to make enquiry and submit a report enabling this Court permitting the appeal to be prosecuted as indigent person. The Registrar has submitted his report. On a perusal of the report, it would appear that the late Saroj Devi had gold ornaments worth Rs.50,000/- and also an insurance policy of more than Rs. 28,000/-.

However, during course of hearing this matter, the Ld. Counsel for the appellants has brought to my notice a communication received from the Life Insurance Corporation of India, Vasant Vihar Branch, New Delhi indicating that the late Saroj Devi paid her instalments only upto December, 1993. Thereafter, she failed to pay the instalment which has resulted in lapsing of the policy. Counsel pleaded in view of this reality, the LRs of late Saroj Devi may be permitted to prosecute the appeal as indigent persons.

W.P.(C)3710/2013 Page 2 Counsel for the respondent-bank though opposed this application, in the facts and circumstances of the case, the request made on behalf of the LRs of late Saroj Devi is accepted and they are permitted to prosecute the appeal on behalf of the deceased Saroj Devi only.

Since the hurdle of payment of court fee is over, let the other miscellaneous applications come up for hearing on 27.4.2006. In the meantime, steps, if any to amend the cause title of the appeal be taken by the counsel for appellants.

Sd/-"

3. The DRAT eventually remitted the matter for hearing and disposal on merits by the DRT. Before the latter, the legal representatives moved an application seeking leave to file counter claim. They also moved an application for being declared indigent, i.e. I.A. No. 625/2012. The DRT rejected the request by order dated 30.08.2012; this was challenged before the DRAT which in turn dismissed the petitioner's appeal; stating as follows:

"A perusal of the order dated 16.2.2006 of this Tribunal passed in Appeal No.171/2001 nowhere shows that the present appellants or Smt. Saroj Devi was held to be an indigent person. The learned Tribunal below has relied upon the order of this Tribunal dated 9.6.2008 passed in Miscellaneous Application No.220/2005 filed in O.A.

No.3/2002 (DRT, Jaipur) as referred to above, wherein it has already been held by this Tribunal that there is no provision in the RDDBFI Act for treating an applicant to be an indigent person and to exempt him from payment of required fee. I am also of the considered view that mere permitting the appellants to prosecute an appeal without holding them indigent does not confer any right

W.P.(C)3710/2013 Page 3 upon them to prosecute a counter claim without paying the required fee. Since section 22 of the RDDBFI Act specifically provides that the DRT of this Appellate Tribunal shall not be bound by the procedure laid down by the CPC, the appellants cannot be declared as indigent under the provisions of Order XXXIII CPC. In my opinion, the order impugned does not appear to be suffering with any illegality or infirmity and as such this appeal, being devoid of any force, is not entitled to be admitted and is liable to be dismissed in limine.

The appeal is accordingly dismissed."

4. Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which was relied upon by the DRAT in impugned order reads as follows:

"22. Procedure and powers of the Tribunal and the Appellate Tribunal.

(1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908 ), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings.

(2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908 ), while trying a suit, in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any person and examining him on oath;

W.P.(C)3710/2013 Page 4

(b) requiring the discovery and production of documents;

(c) receiving evidence on affidavits;

(d) issuing cornmissions for the examination of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for default or deciding it ex parte;

(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;

(h) any other matter which may be prescribed.

(3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860 ) and the Tribunal or the Appellate Tribunal shall be deemed to be a civil court for all the purposes, of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974 )."

5. The petitioner's argument is that though Section 22 states that the Tribunals constituted under the 1993 Act are not bound by the Civil Procedure Code (CPC), that by itself would not imply the inapplicability of the principles embodied in that enactment. Learned counsel highlighted the fact that Section 22 itself required that principles of natural justice have to be followed.

6. Learned counsel for the bank submitted that the liberty granted

W.P.(C)3710/2013 Page 5 by the DRAT originally to the borrower cannot be taken advantage of by the LRs and that there is nothing wrong in the impugned order.

7. A facial reading of the section 22 would indicate that it is only to remove the shackles which otherwise would be placed on the Court by CPC by expressly stating that the Tribunal is free to devise its own procedure. At the same time, that cannot be read to mean that the procedure so adopted should be a limiting or constraining one, denying access to justice. Had the 1993 Act not been brought into force, the petitioner's right to prefer a counter claim and also the claim to be an indigent person would have been unquestionable in view of the Section 33 of the CPC. The mere circumstances that the Act was brought into force to speed up trials in a certain category of claims would not mean that the right which otherwise existed with the litigant to prefer counter claims or make such other claims and at the same time seek the relief of not having to pay the Court Fee in the first instance, on account of indigence, is lost. Such a construction of the statute would not only be limiting access to justice but would in fact result in discrimination.

8. In view of the above discussion, the Court is of the opinion that the petitioner's application for being declared an indigent should be considered by the DRT which should undertake the same process or adopt the same procedure as was done when Smt. Saroj Devi's application was enquired into by DRAT. The only difference is that DRT registry would have to undertake this task and submit the report. The matter is accordingly remitted to DRT. All rights and contentions of the parties are expressly reserved. The petition is allowed in the

W.P.(C)3710/2013 Page 6 above terms.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) AUGUST 14, 2013 'ajk'

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