Page No.# 1/9 vs Punjab And Sind Bank Of Assam
2025 Latest Caselaw 5831 Gua

Gauhati High Court

Page No.# 1/9 vs Punjab And Sind Bank Of Assam on 27 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                    Page No.# 1/9

GAHC010099312025




                                                             2025:GAU-AS:8820

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : CRP(IO)/198/2025

         RUHUL AMIN
         S/O BAPJAN ALI, R/O JAPORIGOG, NAYANPUR, HOUSE NO. 6, P.O.- DISPUR,
         P.S.- DISPUR, DIST- KAMRUP (M), GUWAHATI, ASSAM, PIN-781005. ALSO
         R/O VILL- BHEHBARI, P.O.- GURMOW, P.S.- RANGIA, DIST- KAMRUP,
         ASSAM, PIN-781365



         VERSUS

         PUNJAB AND SIND BANK OF ASSAM, MALIGAON BRANCH AND 2 ORS.
         REPRESENTED BY ITS BRANCH MANAGER, PANDAV NAGAR, BORIPARA,
         MALIGAON, GUWAHATI-781012

         2:MUKULUDDIN AHMED
          S/O LATE MAMTAZ ALI
          R/O HOUSE NO. 6
          BYE LANE NO. 2
          JAPORIGOG
          NAYANPUR
          GUWAHATI
          DIST- KAMRUP (M)
         ASSAM
          PIN-781005

         3:M/S A.M. CONSTRUCTION
         A PARTNERSHIP FIRM
          REPRESENTED BY ITS PARTNERS
          HOUSE NO. 6
          BYE LANE NO. 2
          JAPORIGOG
          NAYANPUR
          GUWAHATI
          DIST- KAMRUP (M)
                                                                       Page No.# 2/9

          ASSAM
          PIN-78100

            For the Petitioner(s)        : Mr. B. Hussain, Advocate
            For the Respondent(s)   : Mr. M. Sharma, Advocate

                 Date of Hearing             : 27.06.2025


                 Date of Judgment             : 27.06.2025




                                BEFORE
                 HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                           JUDGMENT AND ORDER (ORAL)

Heard Mr. B. Hussain, the learned counsel appearing on behalf of the Petitioner and Mr. M. Sharma, the learned counsel appearing on behalf of the respondent No.1.

2. The petitioner herein has invoked the supervisory jurisdiction of this Court challenging the order dated 07.03.2025 whereby the application filed under Section 5 of the Limitation Act, 1963 for condoning the delay in not filing the written statement on 27.02.2024 and further application seeking permission to file the written statement by recalling the order dated 27.02.2024 were rejected.

3. This Court has duly perused the Debt Recovery Tribunal (Procedure) Rules, 1993 (for short 'the Rules of 1993') wherein the procedure for filing the application have been stipulated in Rule 4 and 5. For the purpose of filing the written statement and other documents by the defendant or filing a Page No.# 3/9

reply by the applicant to the written statement, Rule 12 of the Rules of 1993 stipulate the manner.

4. It is seen from Sub-Rule (1) of Rule 12 of the Rules of 1993 that the defendant may within a period of 30 days from the date of service of summons, file two complete sets of written statement including claim for set- off or counter claim, if any, along with the documents in paper book form. Sub-Rule (3) of Rule 12 of the Rules of 1993 further stipulates that if the defendant fails to file the written statement of his defence, including claim, for set off or counter claim under Sub-Rule (1), if any, within the period of 30 days, the Presiding Officer may in exceptional cases and special circumstances to be recorded in writing extend the period by such further period not exceeding 15 days. Sub-Rule (7) of Rule 12 of the Rules of 1993 stipulates that if the defendant or the applicant as the case may be fails to file the written statement or reply as specified in the forgoing Sub-Rules of Rule 12 of the Rules of 1993, the Tribunal may proceed forthwith to pass an order on the application as it thinks fit.

5. In the backdrop of the procedure stipulated in Rule 12 of the Rules of 1993, let this Court duly take note of the order dated 27.02.2024. It appears from the said order that on 28.11.2023, the petitioner herein was represented by a proxy counsel by filing Vakalatnama and sought for time for filing written statement cum evidence on affidavit, which was permitted. Thereupon, the matter was fixed on 11.01.2024 however no written statement was filed by the petitioner and other defendants. Again when the matter was listed on 27.02.2024, the written statement cum evidence on Page No.# 4/9

affidavit was not filed by the petitioner and other defendants and it is under such circumstances, the right of the petitioner and other defendants to submit the written statement cum affidavit of witnesses was closed.

6. This Court further takes note of the reasons assigned by the petitioner as to why the written statement cum affidavits of witnesses could not be filed as mentioned by the petitioner in the application seeking recall of the order dated 27.02.2024. A perusal of the said application filed by the petitioner reveals that the petitioner had taken a loan of Rs.35,00,000/- from the respondent No.1 herein on 13.04.2015 and the said loan was repayable in 252 EMIs i.e. 21 years till 2036. Upon coming to learn about the case, on the basis of the paper publication, the petitioner herein appointed an advocate to defend his case who appeared on 28.11.2023 and assured the petitioner that steps would be taken accordingly. The petitioner accordingly was under the assumption that the said counsel would take due steps. However, when the petitioner went to the respondent No.1 to discuss about a one-time settlement, it was informed to the petitioner that the proceedings which was pending before the learned Debt Recovery Tribunal was at the stage of hearing. Upon coming to learn about the said, the petitioner made inquiry and learnt that on 27.02.2024, the petitioner along with two others, were debarred from filing their written statement and it is under such circumstances, on 01.05.2024, two applications were filed. One application was for condonation of delay and the other was for recalling the order dated 27.02.2024 thereby permitting the petitioner to file the written statement.

7. Objections thereagainst were filed stating inter alia that the grounds Page No.# 5/9

which were stipulated were not sufficient and genuine grounds.

8. The learned Presiding Officer of the Debt Recovery Tribunal, Guwahati on the basis of the written objection was of the opinion that the statements made in the application for condonation of delay was concocted and accordingly rejected the application filed under Section 5 of the Limitation Act, 1963 as well as the application seeking recall of the order dated 27.02.2024 and it is under such circumstances the present proceedings have been initiated.

9. The learned counsel appearing on behalf of the petitioner submitted that there was no fault on the part of the petitioner. Rather, the petitioner was taken for a ride by the counsel who represented the petitioner who was entrusted to do the needful on behalf of the petitioner before the learned Debt Recovery Tribunal, Guwahati. Further to that, he submitted that the petitioner has a valid defence in the said proceedings and on account of the fault of the counsel, the petitioner should not suffer. In addition to that, the learned counsel submitted on instructions that the petitioner is not adverse to having an out of Court settlement in the matter.

10. Mr. M. Sharma, the learned counsel appearing on behalf of the respondent No.1 questioned the very maintainability of the application on the ground that there is an appellate remedy available. He further submitted that the statements which have been made in the said application seeking recall are incorrect statements and is nothing but a clever ruse played by the petitioner before the learned Debt Recovery Tribunal as well as before this Page No.# 6/9

Court. He therefore submitted that the present application is required to be dismissed.

11. This Court have heard the learned counsels appearing on behalf of the petitioners and have given an anxious consideration to the matter. This Court further in detail perused the impugned order passed on 07.03.2025 in I.A. No. 274/2024 and I.A. No.275/2024. It is seen from the impugned order that the learned Presiding Officer did not discuss but merely came to opined after recording the contents of the pleadings filed that what had been stated by the petitioner was a concocted story. There was no reason also assigned in that regard as to why the learned Tribunal arrived at the said opinion.

12. From a perusal of Rule 12 of the Rules of 1993 more particularly, Sub- Rule (7) it appears that if the defendant in the said proceedings do not file the reply, the Tribunal has the jurisdiction to proceed forthwith to pass an order on the application as it thinks fit. In the instant case, what the learned Tribunal has done as would appear from the order dated 27.02.2024 that the defendants were debarred from filing the written statement cum affidavits of witnesses and fix the matter for hearing.

13. This Court inquired with the learned counsel appearing on behalf of the respondent No.1 as to whether there is any evidence which is required to be adduced on the said application. The learned counsel submitted that the affidavits of witnesses are required to be filed at the time of filing the application itself, which is the norm. Similarly while filing the written statement, the affidavit of the witnesses is/are required to be simultaneously Page No.# 7/9

filed with the written statement. In that regard, he referred to Rule 12(6) of the Rules of 1993 insofar as the written statement of the defendant is concerned.

14. This Court further enquired with the learned counsel appearing on behalf of the respondent No.1 as to whether the Rules of 1993 do not permit cross-examination to the defendant of the applicant witnesses, if in proceedings the defendant is debarred from filing the written statement more so, when the proviso to Sub-Rule (9) of Rule 12 of the Rules of 1993 does not bar so. This aspect has been duly dealt with taking into account that it is also the submission of the learned counsel appearing on behalf of the petitioner that the learned Presiding Officer, Debt Recovery Tribunal is proceeding with the disposal of the said proceedings even without permitting the petitioner to file an application for cross-examination of the applicant witnesses.

15. This Court having perused the materials on record and taking into account the grounds and reasons stated therein is of the opinion that as the learned Presiding Officer has not assigned any reasons in the impugned order dated 07.03.2025 and have merely stated that the petitioner's case is concocted and further taking into account the grounds and reasons stated in the application is of the opinion that as the Rules of Procedure are always subservient to the interest of justice and right to file a defence being a substantive right, a further opportunity should be granted to the petitioner to file his written statement along with the affidavits of witnesses.

Page No.# 8/9

16. This Court however duly takes note of that the applicant who is the respondent No.1 herein is also required to be compensated taking into account that on account of these applications being filed by the petitioner, the proceedings pending before the learned Debt Recovery Tribunal have been delayed.

17. Accordingly, this Court therefore disposes of the instant application with the following observations and directions.

(i) This Court interferes with the order dated 07.03.2025 passed in I.A. No. 274/2024 and I.A. No. 275/2024 on the ground that the said order is without reasons.

(ii) This Court further permits the petitioner, who is the defendant No.1 in the O.A No.283/2023 to submit his written statement along with the affidavit of witnesses on 23.07.2025.

(iii) This Court imposes a cost of Rs. 50,000/- upon the petitioner who is the defendant No.1 in O.A. No. 283/2023, which shall be deposited before the learned Tribunal on the date of filing of the written statement along with the affidavit of witnesses. The deposit of Rs.50,000/- shall be a condition precedent for acceptance of the written statement cum affidavit of witnesses.

(iv) The applicant/the respondent No. 1 herein shall be at liberty to file application for withdrawal of the said amount of Rs.50,000/- and the learned Page No.# 9/9

Tribunal shall pass appropriate orders.

JUDGE

Comparing Assistant