Schaefco International And ... vs Hdfc Bank And Others
2013 Latest Caselaw 3191 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                       DECIDED ON: 24th July, 2013

+     W.P.(C) 4621/2013
      SCHAEFCO INTERNATIONAL
      AND OTHERS                                ..... Petitioners
                 Through : Mr. Hashmat Nabi, Adv.

                          versus

      HDFC BANK AND OTHERS                ..... Respondents

Through : Mr. Kunal Tandon and Ms.Nidhi Jain, Advs.

CORAM:

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

% MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) Cav. Nos. 627/2013, 628/2013 & 629/2013

Since there is representation on behalf of the respondents,

the caveats stand discharged.

CM 10595/2013(exemption)

Allowed, subject to all just exceptions.

The application stands disposed off.

W.P.(C) 4621/2013 & CM 10594/2013(stay)

1. The petitioner is aggrieved by an order dated 31st May, 2013

passed by the Debt Recovery Appellate Tribunal (DRAT). The

DRAT upheld the appeal by which the Debt Recovery Tribunal (DRT)

WPC4621.13 Page 1 refused to receive the petitioners' counter-claim.

2. The respondent Bank had initiated the proceedings before the

DRT for recovery of amounts allegedly advanced to the petitioners.

The account was declared NPA by the Bank as on 1st May, 2010.

Thereafter, the Bank proceeded to take action. In the meanwhile, it

proceeded for recovery of the amount in terms of the Recovery of

Debts Due to Banks and Financial Institutions Act 1993. The

petitioners filed their counter-affidavit/written statement on 23rd

December, 2011. Subsequently, on 6th August, 2012, they sought to

move a counter-claim along with application IA 588/2012. The DRT

refused to receive the counter-claim and rejected the application. This

necessitated an appeal to the DRAT which, by the impugned order,

rejected it.

3. Learned counsel urges that the impugned order is ex facie

erroneous. It is submitted that there was no delay in presenting the

counter-claim since the Bank, i.e. the respondent unduly delayed the

proceedings. It is sought to be highlighted that the Bank took

considerable time in exhibiting the documents filed with the claim and

the affidavit. In the circumstances, the petitioners could not be faulted

WPC4621.13 Page 2 for presenting the counter-claim on 6th August, 2012.

4. This Court has considered the materials on record. The notice

under the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 was issued on 23 rd

February, 2011. The petitioners had submitted that on 16th April,

2010 the account was declared an NPA. Therefore, they were acutely

aware of the fact that there was a cause to agitate their grievances.

The opportunity for filing the counter-claim concededly arose in 2011

when the Bank presented the claim before the Tribunal. The petitioner

did not prefer the counter-claim at the time it chose to file the written

statement or soon thereafter.

5. The DRAT in its impugned order had discussed the various

points in time when a counter-claim can be placed on record under

Order VIII Rule 6A CPC. The Tribunal also took notice of binding

decisions of the Supreme Court reported as Mahender Kumar v. State

of Madhya Pradesh, AIR 1997 SC 1395 and the subsequent judgment

in Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003 SC 2508.

The Tribunal took note of the fact that the law enables a defendant to

place on record a counter-claim to avoid multiplicity. At the same

WPC4621.13 Page 3 time, it chose to exercise discretion in not receiving the counter-claim

stating that having regard to the stage of proceedings, such course

would be inappropriate.

6. This Court is unpersuaded by the petitioner's submission that

the Tribunal's order is unjustified in the circumstances. The facts

narrated would disclose that the written statement was filed after about

five months of the preferring of the claim. The petitioner chose not to

prefer the counter-claim even though the cause for agitating grievance

articulated in the counter-claim existed at that time. It chose to file the

counter-claim much later by which the proceedings have got

underway. We are informed that the recording of the evidence by the

Bank had been concluded by the Tribunal at that stage. In these

circumstances, the Court is satisfied that there is no illegality or

irregularity in the order challenged.

The writ petition is dismissed.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) JULY 24, 2013/'sn'

WPC4621.13 Page 4