Bhabatosh Mishra vs Icici Bank Ltd.
2023 Latest Caselaw 3774 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                              W.P.(C) No. 20805 of 2022

Bhabatosh Mishra                    .....                                            Petitioner
                                                                 Mr. Tuna Sahu, Advocate
                                    Vs.
ICICI Bank Ltd., BBSR and           .....                                   Opposite Parties
others
                                                                 Mr. N.K. Dash, Advocate
            CORAM:
               DR. JUSTICE B.R. SARANGI
                   MR. JUSTICE M.S.RAMAN
                                              ORDER

19.04.2023

Order No. This matter is taken up through hybrid mode.

04.

2. Heard Mr. Tuna Sahu, learned counsel for the petitioner and Mr. N.K. Dash, learned counsel for the opposite party-Bank.

3. The petitioner has filed this writ petition seeking to quash the judgment and order dated 28.06.2022 passed by the D.R.A.T., Kolkata in Appeal No. 11 of 2019 with Diary No.34 of 2019 (arising out of O.A. No. 121 of 2015) under Annexure-1, and to issue direction to the Debts Recovery Tribunal, Cuttack to dispose of O.A. No. 121 of 2015 by granting opportunity of hearing to petitioner, within a stipulated time.

4. Mr. Tuna Sahu, learned counsel for the petitioner contended that the opposite party-bank filed O.A. No. 121 of 2015 before the Debts Recovery Tribunal, Cuttack for recovery of some amount from the petitioner, who was the opposite party before the Tribunal. As the Tribunal passed an ex- parte order as against the present petitioner, he filed an application for setting aside the said ex-parte order, which was allowed by the Tribunal. Against the said order, the bank preferred an appeal before the D.R.A.T., Kolkata. The D.R.A.T, Kolkata allowed the appeal by setting aside the

recall order passed by the Debts Recovery Tribunal Cuttack, which is impugned in the present writ petition. According to him, admittedly the petitioner is a loanee, who had availed a loan from the opposite party-bank, but due to non-payment of certain dues, the bank filed Original Application before the DRT, Cuttack. However, since written statement could not be filed by the petitioner before the Tribunal, the petitioner was set ex-parte and accordingly an ex-parte order was passed. When the petitioner came to know about such ex-parte order, he filed an application for setting aside the ex-parte order. The DRT, Cuttack allowed the application filed by the petitioner and restored the Original Application for hearing. At this stage, the opposite party-bank approached the DRAT, Kolkata for setting aside the recall order, which was allowed by the DRAT, Kolkata. As per the provisions contained in RDB Act, the DRT is to comply the principle of natural justice and by not giving opportunity of hearing to the petitioner, the Tribunal had not acted in consonance with the provisions contained under RDB Act. But the DRAT, Kolkata, in oblivious of this provision of the RDB Act, has passed the impugned judgment and order, which cannot be sustained in the eye of law.

5. Mr. N.K. Dash, learned counsel appearing for the opposite party-bank vehemently contended that since the petitioner had deliberately and willfully not paid the dues, the bank filed O.A. No. 121 of 2015 for recovery of the same. When the petitioner did not participate in the said proceeding, as a consequence thereof, by giving several opportunities, the DRT passed the ex-parte order. Subsequently, when the ex-parte order was set aside, the bank preferred appeal before the DRAT, Kolkata. On considering the contentions raised by both the parties, the DRAT, Kolkata passed the impugned order, which is well justified needs no interference by this Court at this stage.

6. Having heard learned counsel for the parties and after going through

the records, it appears that the petitioner is a loanee, who had availed loan from the opposite party-bank, but due to non-payment of certain dues, the bank filed O.A. No. 121 of 2015 before the DRT, Cuttack, wherein an ex- parte order was passed and coming to know of the same, the petitioner filed an application, for setting aside the ex-parte order, which was allowed by the DRT, Cuttack, but instead of participating in the proceeding before the DRT, Cuttack, the opposite party-bank carried the matter to the DRAT, Kolkata in appeal. But the DRAT, Kolkata committed gross error in passing the order impugned, which is apparent on the face of record without following the niceties of the law to the extent that the Tribunal has to pass an order in compliance to the principle of natural justice. Therefore, the impugned order passed by the DRAT, Kolkata is not sustainable in the eye of law.

7. In view of such position, this Court sets aside the judgment and order dated 28.06.2022 passed by the DRAT, Kolkata in Appeal No. 11 of 2019 with Diary No. 34 of 2019. As a result thereof, the Debts Recovery Tribunal, Cuttack shall decide O.A. No. 121 of 2015 by giving opportunity of hearing to both the parties, as expeditiously as possible, preferably within a period of four months from the date of communication of this order. It is made clear that both the parties have to assist the Tribunal for early disposal of the matter without asking for any unnecessary adjournment.

8. With the above observation and direction, the writ petition stands disposed of.

                                                (DR. B.R. SARANGI)
                                                     JUDGE


Arun                                               (M.S. RAMAN)
                                                      JUDGE