Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20522 of 2012 ====================================================== 1. Manish Singh S/O Late Ajit Kumar Singh R/O L-40, Road No. 20, Shri Krishna Nagar, P.S.- Budha Colony, Distt.- Patna-1 2. Saroj Balal Singh W/O Late Ajit Kumar Singh R/O L-40, Road No. 20, Shri Krishna Nagar, P.S.- Budha Colony, Patna Versus 1. United Commercial Bank, Frazer Road, Lic Building, Patna-1 Through The Branch Manager 2. The Debt Recovery Tribunal, At Bank'S Road, Patna Through The Registrar .... .... Petitioner/s .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.20865 of 2012 ====================================================== 1. M/S Nav Nirman Builders,29 M.I.G. Bharhut Nagar Satna ,M.P. Through Its Managing Partner Manish Singh 2. Manish Singh Late Ajit Kumar Singh L40 Road No. 20 Shri Krishna Nagar, P.S. Budha Colony, Patna 3. Saroj Bala Singh W/O Late Ajit Kumar Singh L-40 Road No. 20 Shri Krishna Nagar, P.S. Budha Colony, Patna .... .... Petitioner/s Versus 1. United Commercial Bank Frazer Road L.I.C. Building Patna Through The Branch Manager 2. The Debt Recovery Tribunal, At Bank'S Road Patna Through The Registrar 3. Kumar Sanjeev Dhananjay Prasad,Partner Of M/S Nav Nirman Builders, Bharhut Nagar Satna ,M.P. Resident Of Plot No. 40 Road No. 20 Sri Krishna Nagar, P.S. Budha Colony, Patna .... .... Respondent/s ====================================================== Appearance : (In CWJC No.20522 of 2012) For the Petitioner/s : Mr. Kaushalendera Kumar Sinha Mr. Rajendra Prasad For the Respondent/s : Mrs. Nilu Agrawal Mr. Avinash Kumar (In CWJC No.20865 of 2012) For the Petitioner/s : Mr. Kaushalendra Kumar Sinha Mr. Rajendra Prasad For the Respondent/s : Mrs. Nilu Agrawal Mr. Avinash Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA Patna High Court CWJC No.20522 of 2012 (2) dt.08-03-2013 2 ORAL ORDER 2 08-03-2013 Heard learned counsel for the petitioners and learned counsel for the respondent United Commercial Bank in both the writ applications. The two petitioners of C.W.J.C. No.20522 of 2012 are also petitioners in C.W.J.C. No.20865 of 2012, in which petitioner No.1 is in fact the managing partner and the facts relevant for the
Decision
disposal of the writ petitions are precisely the same and they have, accordingly, been heard together and are being disposed of by this common order. In view of the nature of the order proposed to be passed in the matter, I do not intend to deal with the facts in detail. Suffice it to say that the original application (O.A. No.192/2011) and original application (O.A. No.191/2011) both were filed before the Debts Recovery Tribunal, Patna on 5.8.2011 by the respondent Bank for recovery of Rs.60,78,054 and Rs. 15,49,572/- along with the pendente lite and future interest at contractual rate from 1.7. 2011 till full and final realization with cost and expenses. In both the matters notices were issued by the Registrar. Pursuant to the said notices, two of the defendants appeared on 11.5.2012 and when the matter was put up before the Registrar, a Patna High Court CWJC No.20522 of 2012 (2) dt.08-03-2013 3 prayer was made on behalf of defendants to supply the copies of the original applications as they had not received the same and the counsel for the applicant was directed to provide the said copies of the original applications immediately. From the order sheet of both the cases, it is evident that the copies of the original applications were supplied to learned counsel for the defendants on 3.7.2012 and a prayer was made for time for filing written statement. The matter was directed to be put up on 3.8.2012 by the Registrar. On 3.8.2012, the Registrar directed the matter to be put up before the Presiding Officer of the D.R.T. on 24.8.2012. Both the matters were thereafter placed, for the first time, before the Presiding Officer, DRT who in his order dated 24.8.2012 noted as follows:- “None for the parties are present on call. The defendant Nos. 2 and 4 have only filed their vakalatnama. On filing of vakalatnama by defendant No.2 who is the proprietor of defendant No.1, notice is sufficient for defendant No.1. The defendant No.2 & 4 did not file their WS nor filed time petition for filing of WS. Hence, the defence of defendant No. 1, 2 & 4 is hereby closed. In spite of registered notice & substituted Patna High Court CWJC No.20522 of 2012 (2) dt.08-03-2013 4 service through paper publication, defendant no.3 has not appeared in the case. Hence, the defendant No.3 is proceeded ex parte. Perused the case record. Reserved for orders.” Thereafter, the judgment was pronounced on 28.8.2012 in which it was noted at the top that none of the parties were present. However, in paragraph Nos. 11 and 7 respectively of the judgment in those two cases it was noted: “arguments were heard”. It is also stated in the judgment that in response to the summons sent by the Tribunal the defendants appeared but despite being given several chances failed to file their written statements and hence their defences were closed. On the aforesaid facts, learned counsel for the petitioners submits that the judgment has not only been passed in complete violation of the procedure prescribed in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Debts Recovery Tribunal (Procedure) Rules, 1993, but the same is also in violation of the principles of natural justice which the Tribunal is required to follow in terms of Section 22 (1) of the Act. It is submitted by learned counsel for the petitioners that the petitioners had not filed the written statement after Patna High Court CWJC No.20522 of 2012 (2) dt.08-03-2013 5 receiving the copies of the original applications on 3.7.2012, but thereafter on the very next day the matter was referred to the Presiding Officer, D.R.T. by the Registrar who on the very first day not only closed the defence but without notifying and fixing any date of hearing of the application reserved the matter for orders simply by perusing the case record. It is submitted that the applicant Bank was also not present on the said date and thus the decision is purely on perusal of the records of the case by the Presiding Officer without the benefit of any submissions of learned counsel for any of the parties and at the same time a wrong statement is made in the judgment that “the arguments were heard”. Learned counsel for the respondent Bank, on the other hand, submits that the notices were duly sent to the petitioner- defendants by the D.R.T. in terms of Rule 11 of the Rules under which the copy of the application and paper books are to be sent by registered post to the defendants but the petitioners did not file their written statements although they had appeared on 29.2.2012 and 20.3.2012. Thus, it is submitted that they had sufficient time to file their written statements and they cannot be permitted to take the plea that the copies of the original applications have not been served upon them earlier. Learned counsel also submits that apart Patna High Court CWJC No.20522 of 2012 (2) dt.08-03-2013 6 from the same, the petitioners have alternative remedy of filing an appeal against the judgment of the Tribunal before the Debts Recovery Appellate Tribunal and they should not be permitted to side track the statutory remedy available to them. So far as the question of alternative remedy is concerned, the law is settled on the point that the mere existence of alternative statutory remedy is not a complete bar to entertain a writ petition if violation of the principle of natural justice is alleged, apart from other grounds, as has been laid down by the Apex Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & others: (1998) 8 SCC 1. In the present matter, I find that the Presiding Officer of the DRT on the very first day when the matter was put up before him on finding that the petitioners had not filed their written statements nor filed a time petition for filing of written statement had closed their defence and thereafter reserved the case for orders without hearing even the learned counsel for the applicant in the matter as neither of the parties were present. In my view, if the defence of the petitioner was closed on 24.8.2012, it was incumbent upon the respondent Tribunal to have fixed a date for hearing the matter and the mere fact that the defence of the petitioners was closed did not disentitle them to Patna High Court CWJC No.20522 of 2012 (2) dt.08-03-2013 7 argue the matter on the basis of the pleadings on the record. Moreover, under Rule 13 of the Debts Recovery Tribunal (Procedure) Rules, 1993, it is provided that the Tribunal shall notify the parties the date and place of hearing of the application in such a manner as the Presiding Officer may by general or special order direct. Nothing has been brought on the record by the respondents to show that any such date of hearing was notified to the petitioners, rather it is evident from the order dated 24.8.2012 passed in both the cases that no date of hearing was notified and on the very first date when the matter was put up before the Presiding Officer he has proceeded to reserve the case for orders without hearing the parties. Thus, there can hardly be any doubt that there is a gross violation of the principles of natural justice in the matter. That being so, the challenge to the maintainability of the writ petition on the ground of availability of alternative statutory remedy must fail. The same also is a good ground for quashing the judgment and the consequential certificates dated 28.8.2012 in both the original applications (O.A. No.192/2011 and 191/2011). Before closing the matter, this Court is surprised to note the manner in which the Presiding Officer of DRT, Patna is Patna High Court CWJC No.20522 of 2012 (2) dt.08-03-2013 8 proceeding in different cases, of which the present two matters are burning examples. If the applicant is also not present, it is quite ununderstandable how the Court will proceed to pass a judgment in the matter. In such circumstances either the application could have been dismissed in default of prosecution or the matter could have been fixed for hearing on another date. Not only that the Tribunal has proceeded to record in its judgment that “arguments were heard”, whereas it is evident from the order sheet itself that none of the parties was present and the judgment was reserved without hearing any of the parties. Both the writ applications are, accordingly, allowed with the aforesaid observations and directions and the matter is remanded to the Debts Recovery Tribunal, Patna to proceed afresh in accordance with law. (Ramesh Kumar Datta, J) V.P.Sinha/-