R.J.Sujatha v. Indian Bank

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.4.2009CORAMTHE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HON'BLE MR.JUSTICE N.KIRUBAKARANWrit Petition No.30862 of 20081. R.J.Sujatha2. R.J.Subash Chandra Bose3. R.J.Harika4. R.J.Goyanka..PetitionersVs.1. Indian Bank Chittoor Branch rep. by its Chief Manager.2. V.Venkata Raman3. R.Padmini Gopinathan4. Debts Recovery Appellate Tribunal 4th Floor, Indian Bank Building Ethiraj Salai Chennai 600 002...RespondentsPetition under Article 226 of the Constitution of India prayingfor a writ of Certiorari for the relief as stated therein.For Petitioner : Mr.N.V.Srinivasan for M/s.N.V.S.AssociatesFor Respondent-1 : Mr.V.Lakshmi NarayananFor Respondents 2&3 : No appearanceO R D E R(Made by N.KIRUBAKARAN,J.)The writ petition has been preferred against the order of theDebt Recovery Appellate Tribunal dated 5.12.2008 in M.A.No.200 of2008, confirming the order of the Debt Recovery Tribunal, reviewingits earlier order with regard to abatement of the third respondent. https://hcservices.ecourts.gov.in/hcservices/

2. The facts which led to the filing of the writ petition arethat the respondent Indian Bank filed a suit in O.S.No.106 of 1988 onthe file of Additional Sub Judge, Chittoor and the said suit wasdecreed against the first defendant and dismissed against second andthird defendant. Aggrieved by the same, the Bank preferred an appealin A.S.No.1688 of 1991 on the file of the Andhra Pradesh High Court.By judgment dated 17.12.2003, the Andhra Pradesh High Court passed adecree against all the defendants. In the meanwhile, the Recovery ofDebts due to Banks and Financial Institutions Act, 1993 came intoforce and the Bank filed O.A.No.212 of 2004 under Sections 31 and 31Aof the DRT Act before the Debt Recovery Tribunal, Hyderabad, forpassing of final decree and recovery certificate.3. During the pendency of the said O.A., the third respondentJyothinathan died on 9.5.2007. Since no legal heirs of the thirddefendant were brought on record, the Debt Recovery Tribunaldismissed the O.A. against the third defendant on 29.1.2008 and thesaid order is extracted as follows:"Proceedings dated 18.12.2007 show that D-3 was expiredand the matter is posted for steps of D-3. No steps aretaken and as such claim against D-3 is abated. Bothcounsels represented that D-1 was already set exparteand D-2 filed written statement. Posted to 6.5.2008 forevidence."4. Subsequently, the matter was taken up on 9.7.2008 and thefollowing order was passed:"Both the counsel present. It is submitted by thecounsel for applicant that the present O.A. is filed onthe basis of decree passed by the civil Court as per theorders of the Hon'ble High Court. It is representedbefore this Tribunal that it is well settled law thatafter passing of a decree, if any JDR passes away, thequestion of abatement does not arise. Under thecircumstances, the order passed against D3 dated21.3.2008 is set aside. The counsel for the applicantis requested to verify the legal position. Forclarification on the legal issues, posted to 9.9.2008."Thus, the Tribunal recalled the docket order dated 29.1.2008 and setaside the abatement order passed against the third defendant.5. Aggrieved by the order of the Debt Recovery Tribunal,Hyderabad dated 9.7.2008, the legal heirs of the thirddefendant/deceased Jyothinathan, the petitioners herein, preferredM.A.No.200 of 2008. The Debt Recovery Appellate Tribunal, dismissedthe appeal holding that the question of abatement does not arise onaccount of death of any judgment debtor subsequent to the passing ofa decree and that the matter was again posted for clarification on https://hcservices.ecourts.gov.in/hcservices/ the legal issues again on 9.9.2008. Hence, present revision petitionhas been preferred against the order of the Debt Recovery AppellateTribunal.6. Mr.N.V.Srinivasan, learned counsel for the petitionercontended that the Tribunal, having dismissed the O.A. against thethird defendant as abated by order dated 29.1.2008, ought not to havereviewed the order on 9.7.2008. He further contended that if thepetition to bring legal heirs of the deceased third defendant was notfiled as per the Limitation Act, the proceedings abates. In thisregard, he relied on a judgment of the Apex Court in Union of Indiav. Ram Charan and Ors. [MANU/SC/0238/1963 = AIR 1964 SC 215], whereinthe appeal was dismissed as abated for not bringing the legalrepresentatives on record in time.7. On the other hand, Mr.V.Lakshmi Narayanan, learned counselfor the first respondent/Bank, supported the orders of the Tribunaland relied upon a decision of the Supreme Court in Ratna aliasRatnavati v. Syndicate Bank and Ors. [1995 (1) SCC 407], wherein, itis held as under:"A decree passed confers right and imposes liabilitieswhich are fixed until the decree is reversed or variedin appeal. The preliminary decree declares rights of theplaintiff and liabilities of the respective defendantsand they become final. The suit would not abate betweenthe date of preliminary decree and final decree."8. It has to be seen that the proceedings are governed byspecial statute, viz. the Recovery of Debts due to Banks andFinancial Institutions Act, 1993. The provisions of the Act overrideother laws, as per Section 34 of the Act. Section 22 of the Actspeaks about the procedure and powers of the Tribunal and AppellateTribunal. Section 22(1) states that the Tribunals shall not be boundby the procedure laid down by the Code of Civil Procedure, 1908 (5 of1980), but shall be guided by the principles of natural justice andthe Tribunal shall have powers to regulate their own procedure.Section 24 of the Act states about limitation and the same reads asunder:"The provisions of the Limitation Act, 1963 (36 of 1963)shall, as far as may be, apply to an application made toa Tribunal."Thus, the Code of Civil Procedure is not strictly applicable and theTribunals are guided by the principles of natural justice and theypossess powers to regulate own procedure.9. In view of special nature of the provisions of the Act, theDebt Recovery Tribunal rightly recalled its order of dismissal ofapplication against the third defendant as abated. The Debt RecoveryAppellate Tribunal also dismissed the appeal holding that subsequent https://hcservices.ecourts.gov.in/hcservices/ to the passing of a decree, the question of abatement does not ariseon account of the death of any judgment debtor.10. It has been held by the Apex Court in Uthirapathi v.V.Ashraf Ali [AIR 1988 SC 1168] as under:"In case of death of judgment debtor, the decree holdercould file an application to bring the legalrepresentatives of the judgment debtor on record at anytime. Of course, in case of death of judgment debtor,the Court can fix a reasonable time for the saidpurpose, the Court can dismiss the execution petitionfor default. In any event, the execution petitioncannot be dismissed as abated."11. In the instant case, the Debt Recovery Tribunal has merelypassed the order dated 29.1.2008, based on the earlier proceedingsand stated that the proceedings stands abated against the thirddefendant. However, in the presence of both the parties, the orderdated 29.1.2008 was recalled on 9.7.2008 on the ground that afterpassing of a decree, if the judgment debtor passes away, abatementdoes not arise. The Debt Recovery Appellate Tribunal also rightlydismissed the appeal stating that subsequent to the passing of thedecree, question of abatement does not arise on account of demise ofthe judgment debtor. The said finding of the Debt Recovery AppellateTribunal is sustainable. The judgment in Ratna alias Ratnavati v.Syndicate Bank and Ors. [1995 (1) SCC 407] is similar to the facts ofthis case and the dictum is squarely applicable to the instant case.12. As the grievance of the petitioners is that they have notbeen impleaded as legal heirs in the proceedings, liberty is given toboth the parties to approach the Tribunal and to file a petition forsubstitution of the legal heirs of the third defendant/deceasedJyothinathan in the above said proceedings. On filing of suchapplication, the same may be considered by the Debt RecoveryTribunal, on merits.The writ petition stands dismissed with the aforesaidobservation. However, there shall be no order as to costs.Consequently, M.P.Nos.2 to 4 shall stand dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkpl https://hcservices.ecourts.gov.in/hcservices/ ToThe RegistrarDebts Recovery Appellate Tribunal4th Floor, Indian Bank BuildingEthiraj Salai, Chennai 600 002.1 cc To M/s.N.V.S.Associates, Advocate, SR.16011.1 cc To Mr.V.Raghavachari, Advocate, SR.15687.W.P.No.30862 of 2008. KU(CO)RVL 30.04.2009