M.A. No. 6 of 2002 DRT-III. Case: Dr. Gautam Basu Vs United Bank of India. Kolkatta Debt Recovery Tribunals
| Case Number | M.A. No. 6 of 2002 DRT-III |
| Counsel | For Appellant: Hirak Mitter, Sr. Adv. and Sanjukta Roy, Adv. and For Respondents: A.K. Dhandania, Sr. Adv., R.N. Das and P.Pal, Advs. |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 24; Limitation Act, 1963 - Section 5; Code of Civil Procedure, 1908 (CPC) - Order 22, Rules 3 and 4 - Order 9, Rule 13 |
| Citation | IV (2004) BC 77 |
| Judgement Date | April 02, 2003 |
| Court | Kolkatta Debt Recovery Tribunals |
Judgment:
D.C. Thakur, Presiding Officer
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The Miscellaneous Applicant preferred on Wednesday, November 18, 2002 two applications being respectively for setting aside and/ or recalling the ex parte order dated July 7, 1999 and the certificate of recovery bearing No, 69 of 1997 dated August 9, 1999 issued on the basis of that ex parte order; and also for condonation of delay in preferring the said application. Thereafter, the said applicant has also filed one supplementary affidavit containing the new developments being subsequent to the filing of the above two applications.
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The respondent/certificate holder Bank has also filed three objections in respect of the above ones, after service or those upon the Miscellaneous Applicant and other necessary parties.
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The Miscellaneous Applicant has also filed one affidavit-in-reply (hereinafter for short called the 'reply') to the written objections of the said respondent/certificate holder Bank.
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Thereafter, the certificate holder/respondent-Bank has made one application along with the annexures. There has also been filed one affidavit by Mr. Dilip Kr. Dey, the licensed clerk in the employment of M/s. S.N. Sen and Co., being the Advocate for the applicant-Bank along with one annexure being marked with the letter 'A' for identification.
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During the hearing of the said application, one certificate issued on Friday, February 14, 2003 by the Deputy Sheriff of the Hon'ble High Court at Kolkata along with the seal of Sheriff of Kolkata was submitted on behalf of the respondent/certificate holder Bank before this Tribunal. The said certificate was accepted by the Tribunal
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The application was preferred on November 18, 2002 by the said applicant when the recovery proceeding, on the basis of the certificate of recovery issued, was being conducted against each of the certificate debtors.
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The grievance ventilated in the above application has been in respect of the alleged bringing on record by way of the illegal substitution of the said applicant in place of the deceased certificate debtor No. 4, the insertion of his name in the said certificate and also the order of attachment of the properties being situate at 110, Kumar Para Lane, Kasba being claimed to be the self-required property of the said petitioner together with his wife and one Dr. Jhumur Gupta, which has also been claimed to be not inherited by the said applicant from the erstwhile defendant No. 4; nor being the fruit of the estate of the deceased certificate debtor/defendant No. 4, late Bhuvan Mohan Bose. in that application, an illegal order for issuing a notice of demand upon the said applicant has also been tended to be challenged vehemently on the ground of being both erroneous in law and fact.
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At paragraph No. 11 of the said petition, the purported order of the Recovery Officer dated August 23, 2002, the notice of demand dated November 11, 2002 and the order of attachment dated November 11, 2002 have been expressly claimed to be "bad in law" and hence, "liable to be recalled and or cancelled or set aside."
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In that application read alongwith the supplementary affidavit, the applicant contends that before Monday, November 14, 2002 he had no knowledge of both the original TA No. 8 of 1997 which was previously the commercial Cause Suit No. 245 of 1986 when it was pending before the Hon'ble High Court at Kolkata; and the certificate of recovery issued on August 9, 1999 by the learned transferring Tribunal for a certificate amount of Rs. 10,53,836.53 p. issued on the oasis of the final order, passed in that T.A. Application, on July 7, 1999, though ex parte against each of the four defendants, (later becoming the certificate debtors), because he was never substituted in place of the deceased defendant No. 4 who was such defendant, which the final order was passed ex parte on July 7, 1999; nor he was connected in any way with the commercial transaction with the Banker of the defendant No. 1.
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According to the said applicant, the knowledge as to the present recovery proceeding conducted against each of those four defendants as the certificate debtors was gathered by him on Monday, November 14, 2002, when the Joint Receivers visited the premises No. 110, Kumar Para Lane, P.O. Kasba, Kolkata and affixed the purported order of attachment on the conspicuous portion thereof in his absence and when the said applicant was served with a notice of demand issued upon him.
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Another ground of objection to that ex parte order and the certificate of recovery has been expressly taken by the said applicant on the ground of that the said ex parte order being first a nullity and void on the ground of abatement of the said claim case as against the said deceased defendant, late Bhuban Bose, being later the certificate debtor No. 4 for want of the statutory substitution of the said defendant by the present applicant within the prescribed time limit from the date of death of the said defendant taking place on February 18, 1987, which as a matter of fact occurred during the pendency of the said commercial suit before the said Hon'ble Court.
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Since both the order and the certificate of recovery issued on the basis of the said order are void and nullity because of being respectively passed and issued against the said dead person, the Recovery Officer lacks the jurisdiction to conduct the present recovery proceeding.
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The other point of objection has been taken by the said applicant on the ground of that he has been brought on record in place and instead of the said deceased defendant, of whom he claims to be one of the legal surviving heirs, during the recovery proceeding and without giving him an opportunity of being heard; thus, causing the marked violation to occur with the traditional doctrine of natural justice.
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Another objection of the serious nature is that such officer has exceeded the jurisdiction vested in him; and has tended to usurp or interfere with that of the Presiding Officer of this Tribunal by way of executing the necessary amendment or correction or modification of the certificate of recovery issued on August 9, 1999; and lastly, has been round violating grossly the provisions contained in Sections 26 and 27 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, [Act. No. LI of 1993].
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It shall not be immaterial to mention, here, of that the application, as preferred by the said applicant has not been labeled with any legal provision under which it has been intended to be made.
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Before dealing with the nature and contents of the said application, it is being highly necessary to refer to the factual background leading to the rise of the present one.
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For such purpose. April 18, 1986 is the relevant day and date when the respondent applicant/certificate holder Bank did present, one plaint against the Calcutta Electric Lamp Works Ltd., (hereinafter being referred to as the defendant No 1), which was known at the commercial parlance as the manufacturer of high class electric lamp, If one looks at the Exhibit No, 29, Page 93 of the Evidence-on-Affidavit, and four others, including the deceased defendant No. 4 (who was incidentally the director-in-charge of the said defendant company; and was also empowered and authorised by the said company to sign and execute, on its behalf any or all papers, documents, letters, etc. being necessary in connection with any loan from the company's banker, namely, the College Street Branch of the applicant-Bank and also to use and affix the common seal of the company on the Loan A/cs., being an authorization made by the company on the basis of one Resolution adopted on April 28, 1982 in the meeting of the Board of Directors of itself), before the Hon'ble Justice R.N. Pyne, one of the Justices of the Hon'ble High Court at Kolkata claiming thereafter for a decree for Rs. 10,53,836.53 p against the defendant Nos. 1, 2, 3 and 4 jointly and severally; and also for a decree against the defendant No. 5 being the State of West Bengal for Rs. 1,73,901.46 p.
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Thus, the applicant/respondent Bank instituted such commercial cause Suit No. 245 of 1986 by way of presenting the said plaint along with the twenty-five annexures before the said Hon'ble Court at its original side jurisdiction. At that time, since the present Act was neither enacted nor any Tribunal was set up under Section 3 of itself for the reason of dealing with such commercial suit, the applicant/respondent-Bank chose the available ordinary forum of civil nature against those defendants/certificate-debtors and instituted the said suit before the Hon'ble High Court at Kolkata by way of presenting the above plaint in connection therewith.
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Thereafter by operation of law, the said suit stood transferred on January 16, 1997 before the learned transferring Tribunal before which the said suit stood renumbered as TA No. 8 of 1997.
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In accordance with the provisions contained in Section 31 of the Recovery of Debts Due to Bank's and Financial Institutions Act, 1993, the said Tribunal was pleased by its order made on March 11, 1997 to issue the respective notices upon both the applicant/ respondent-Bank and the defendants-cum-certificate debtors to appear in person or through the Lawyers or agents to be appointed by those parties before itself on September 3, 1997.
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Again, on February 3, 1998, it revealed from the record maintained in that TA No. 8 of 1997 the envelopes sent to the defendant Nos. 1 to 4 had also returned unserved with the necessary remarks 'Not known' by the postal authorities, whereas Mr. R.C. Ghosh, the learned Advocate appeared on behalf of the State defendant without any power from the latter.
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On that day, the learned transferring Tribunal was pleased by its order No. 4 to direct the following:
Record is put up as per previous order.
Learned Lawyer, Mr. R.N. Das is present on behalf of the applicant-Bank with power jointly with Learned Lawyer, Ms. Snigdha Sinha,
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