Writ Petition No. 983 of 2010. Case: Amit H. Jhaveri and Anr Vs Bank of Baroda and Ors. High Court of Bombay (India)
| Case Number | Writ Petition No. 983 of 2010 |
| Counsel | For Appellant: S.U. Kamdar, Sr. Adv., i/by Devanshu P. Desai, Adv. and For Respondents: D.D. Madon, Sr. Adv., with Simil Purohit i/by Juris Parmar Chambers, K.R. Chaudhari, A.I. Patel, AGP |
| Judges | P. B. Majmudar, J. and Anoop V. Mohta , J. |
| Issue | Recovery of Debts Due to Banks and Financial Institutions Act (51 of 1993) - Sections 2(g), 17; Negotiable Instruments Act (26 of 1881) - Section 80 |
| Citation | AIR 2011 Bom 11 |
| Judgement Date | October 12, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
P.B. Majmudar, J.
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Rule.
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Mr. Madon, learned Senior Counsel waives service on behalf of respondent No. 1 and Mr. Chaudhari, waives service for respondent No. 2. Leave to delete respondent No. 3 from the array of parties. With the consent of both the sides, the matter is heard finally and is disposed of by this judgment.
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By way of this petition, the petitioner has challenged the order passed by the Debts Recovery Appellate Tribunal, Mumbai, in Appeal No. 336 of 2006 with M. A. No. 1072 of 2009. The Appellate Tribunal by its judgment and order dated 12-1-2010 dismissed the appeal filed by the petitioners and confirmed the order passed by the Debt Recovery Tribunal, Mumbai.
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The respondent No. 1 Bank instituted a Suit bearing No. 194 of 1997 against the petitioners for recovery of the amount before the Original Side of this Court. In view of the enactment of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for the sake of brevity, hereinafter referred to as the Act), the said suit was subsequently transferred to Debts Recovery Tribunal, Mumbai. The Debts Recovery Tribunal, II, Mumbai, by its order dated 27-3-2006, allowed the Original Application filed by respondent No. 1 Bank and passed an order of recovery of Rs. 8,09,58,000/- with interest @ 18% p.a. from 27-12-1993 till full realization. Subsequently, the said order was reviewed by Debts Recovery Tribunal, II, Mumbai, in Review Application No. 14 of 2006 and the amount of recovery was modified to Rs. 11,20,14,000/- with interest @ 18% p.a. from 27-12-1993 till full realization. The original order as well as the order passed in review application, both were challenged by the petitioners by preferring an appeal bearing No. 336 of 2006 before the Appellate Tribunal. The contention of the petitioners before the Appellate Tribunal was that since the petitioners has not signed any documents and no documents were executed between the petitioners and respondent Bank, the proceedings before the Tribunal were not maintainable. The Appellate Tribunal rejected the said contention and dismissed the appeal filed by the petitioners, which order is challenged in the present petition.
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Mr. Kamdar, learned Senior Counsel appearing for the petitioners strenuously submitted that since no documents were executed by the petitioners, the transaction at the most, can be said to be fraudulent business transaction and in that view of the matter, the proceedings before the Debts Recovery Tribunal, were not maintainable. He further contended that the respondent-Bank should have filed appropriate suit for recovery of the amount, but the proceedings before the Debts Recovery Tribunal, were surely not maintainable, as this was not a routine business transaction by which the amount is borrowed by the petitioners. According to him, fraudulent business transaction resorted to by the petitioners, cannot be equated with a genuine business transaction and therefore, the provisions of the said Act, cannot be made applicable so far as facts of the present case are concerned. In order to lend credence to his submissions, he has relied upon certain judgments.
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Per contra, Mr. Madon, learned Senior Counsel appearing for respondent No. 1 Bank, submitted that the petitioners in connivance with the bank employees, fraudulently took financial benefits for the purpose of its business, by committing a fraud with the Bank. He further submitted that so far as bank employees are concerned, the respondent Bank cannot resort to any proceedings under the said Act, as the proceedings are required to be initiated for misappropriation of funds of the bank as per Service Rules. But since, the petitioners are the direct beneficiaries of the alleged fraudulent transaction and have utilized the money for its business, the proceedings before the Debts Recovery Tribunal, is maintainable.
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We have heard the learned counsel at length and have considered the rival submissions made on behalf of both the sides. It is required to be noted that the present petitioners operated Current Account No. 30124 with the respondent Bank at its Walkeshwar Branch, Mumbai. The appellant No. 2/defendant No. 2 was the sole proprietorship firm of appellant No. 1, which operated Overdraft Account No. 50070 with the same Branch of respondent No. 1 Bank. In para No. 4 of the plaint, it is averred as under:-
4. The 1st defendant used to procure deposits from various third parties for investment as short term deposits with the plaintiffs Walkeshwar Branch. The 1st defendant representing himself and as sole proprietor of defendant No. 2 herein would request the plaintiffs to prepay the amount of deposit without depositing duly discharged receipts with the plaintiffs and would have the amounts of deposit receipts credited to his account. The 1st defendants was given unauthorized Overdraft or Credit Balance to his account, which the 1st defendant would clear by ostensible premature repayment of some Time Deposits belonging to some Third Parties. The original time deposit receipts would remain with the parties whose funds were placed in the accounts of Defendant Nos. 1 and 2. On the due dates of time deposit receipts, the 1st defendant would provide...
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