M.A. Nos. 15 and 16 of 2001 in T.A. No. 01 of 2002. Case: Nopani and Sons Pvt. Ltd. Vs UCO Bank and Ors.. Kolkatta Debt Recovery Tribunals
| Case Number | M.A. Nos. 15 and 16 of 2001 in T.A. No. 01 of 2002 |
| Counsel | For Appellant: Bimal Kumar Chatterjee, P. Pal, Advs. for the Misc. Applicant/Certificate debtor No. 4 in M.A. 15/2001 and Opp. Party/ defendant No. 5 in M.A. 16/2001, Bimal Kumar Chatterjee, L.N. Seth and N. Srinivas, Advs. for the Misc. Applicant/Certificate Debtor No. 5 in M.A. 16/2001 and Opp. Party/defendant No. 5 in M.A. 15/2001 and For ... |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 3, 19(7), 19(22) and 22(2); Code of Civil Procedure (CPC) (Amendment) Act, 2002 - Section 12A; Code of Civil Procedure, 1908 (CPC) - Sections 11, 114, 151 and 152 - Order 18 - Rules 2(3A) - Order 21 - Order 22 - Order 23, Rule 3; Code of Civil Procedure (CPC)(... |
| Citation | III (2005) BC 59 |
| Judgement Date | April 01, 2005 |
| Court | Kolkatta Debt Recovery Tribunals |
Judgment:
D.C. Thakur, Presiding Officer
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The parties, who have once entered into a compromise or a settlement, should not be permitted into receding or resiling from the said compromise in one pretext or another. Moreover, the attitude of any party departing from any compromise, which has already been recorded by a Court, should be examined and verified by the said Court on the basis of its sacrosanct record maintained in connection with a proceeding earlier conducted by itself. The task of carefully scrutinising the action pattern of a party that he or she has not signed the joint compromise petition filed before a Court regarding such compromise nor has appointed or engaged any pleader to act for his behalf in the said compromise before the said Court has been judicially assigned to the said Court as a well established method of procedure for the above type of scrutinisation, particularly in the context of the different authorities propounded by the Indian judicial system. Historically speaking, the leading case of Byram Pestonji Gariwala v. Union of India, (1992) 1 SCC31: AIR 1991 SC 2234, has been described as an authority for the preposition that in spite of the 1976 amendment in Order 23 Rule 3 of Code of Civil Procedure, 1908 (Act No. V of 1908) requiring agreement or compromise between the parties to be in writing and signed by the said parties, the implied authority of a Counsel engaged in the thick of the proceedings in Court, to compromise or agree on matters relating to the parties has not been perhaps taken away. Neither the decision in the case of Byram Pestony Gariwala (supra) nor any other authority cited before the Trial Court dispenses with the need of agreement or compromise, that has been very much on its record, being proved to be satisfaction of the itself. It is, for the above reason, the Hon'ble Justice R.C. Lahoti observed inter alia, in the case of D.P. Chadha v. Triyugi Narain Mishra and Ors., I (2001) SLT 13=2001 (2) SCC 221, the following: In order to be satisfied whether the compromise recorded has been genuine and voluntarily entered into by the disputing party, a direction to be issued upon the same disputing party to appear in person before the Court and to verify the compromise under dispute has been indispensable.
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What has been stated above has been found to take place in connection with the two different miscellaneous applications respectively preferred by the defendant Nos. 4 and 5. For convenience, it should be mentioned that the application preferred by the defendant No. 4, which was in fact duly verified by one Shri Raj Kumar More, in the capacity of a legal advisor of the said defendant, was preferred on March 8, 2001 before the learned transferring Tribunal, after praying therein that the Certificate of Recovery, after bearing No. 25 of 1995, be henceforth rectified, after deleting the name of the said petitioner-defendant as well as the said certificate so issued against the said defendant be withdrawn against the said applicant-defendant and others. In the said application, the above applicant-defendant has raised its specific objection to that it has been a signatory to the joint petition of compromise in connection with which Order No. 10 has been passed the said learned Tribunal on April 3, 1995. In the said application, the said applicant-defendant has categorically and vehemently objected to be bound by the said order for a number of reasons like, no appearance has been duly made on its behalf in T.A. No. 22 of 1994, after the transfer by operation of law of the suit bearing No. 457, in connection with which one plaint alongwith thirty-three annexures has been presented by the opposite party/certificate holder Bank on August 9, 198S before the Hon'ble Justice C.K Banerjee (as His Lordship was then), one of the Justices of the Hon'ble High Court at Kolkata, (ordinary original jurisdiction) for a decree of Rs. 8,70,06,172.56 p, against the applicant-defendant Nos. 1 and 3 jointly and severally as well as a decree for Rs. 4 crores against the applicant-defendant Nos. 4 and 5 jointly and severally and a common decree for interest from August 1, 1985 till filing of the suit as well as interim interest and interest on judgment at the rate of 17.5% p.a. against all the defendants, from the said Hon'ble Court to the above learned transferring Tribunal, the above non-appearance of the said applicant-defendants further caused to be made owing to notices that have been claimed to be not received by the said defendants from the above transferring Tribunal, etc. The said defendant further states that it has never appointed, authorised and empowered M/s. P. Basu and Co. Advocates or Mr. K. Hameed, Advocate to represent and act for such applicant-defendant before the said learned Tribunal. Lastly, it has been seriously contended by the said applicant-defendant that as it has never been the signatory to the joint petition of compromise, the terms of settlements contained in the said petition, that have been very much recorded in the order made on April 3, 1995 are by not binding upon itself. In the said application, the said applicant-defendant has also challenged the illegality of the Certificate No. 25 of 1995, because the said certificate has been issued on the basis of the consent order to which it has never been a party nor a signatory.
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Like the applicant-defendant No. 4, the defendant No. 5 also preferred the same type of application on the day and date mentioned above before the said learned Tribunal alleging therein the grounds, described hereinabove, taken by the applicant-defendant No. 4; but only with the solitary difference being in the form of a different person, proved to have affirmed the affidavit. In other words, the said application was actually preferred before the said Tribunal on March 8, 2001, after being affirmed by Shri Kamal Singh Bhutoria as one of the directors of the said defendant, a corporate entity.
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When this Tribunal had been set up under Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. LI of 1993), the above pending applications were transferred by the earlier Tribunal to itself; after receiving all the records maintained in connection with TA No. 22 of 1994, which had been renumbered as TA No. 1 of 2002, this Tribunal had been pleased to issue summons upon both the certificate-holder applicant Bank as well as the five defendants/certificate debtors brought by itself on record on August 9, 1985. In response to the summons so issued by this Tribunal, the opposite party/certificate holder Bank made its appearance through its learned Advocate on Tuesday, March 26, 2002; and a prayer for an extension of time to file the written objection to the above pending applications was made that day on its behalf.
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On May 13, 2002, two separate affidavits-in-opposition, affirmed by Mr. Provanjan Kumar Halder, in the capacity of the Senior Manager as well as a principal Officer of the said Bank have been filed before this Tribunal. At paragraph No. 3 of each of the objections, the following common objection as to the maintainability of the above applications have been specifically taken by the said Bank:
"At the very outset I deny each and every allegations made in the said Misc. Application and submit the following for proper adjudication of the matter--
(a) That the said Misc. Application has been filed only to delay and defeat the recovery proceedings initiated by virtue of a certificate issued by this learned Tribunal (the then Unit - 1) on a Joint Compromise Petition filed on behalf of the parties.
(b) The petitioner of the said Misc. Application and the defendant No. 1 Company are the Group of Companies of Nopanys particularly of Sarbashree Bimal Kumar Nopany and Shew Parsad Nopany the original defendant Nos. 2 and 3 respectively.
(c) On being approached by the said Bimal Kumar Nopany for an amicable settlement of the suit the plaintiff upon considering the pros and cons of the matter had agreed to settle the disputes between the Bank and the defendants including the Misc. Applicant herein duly represented by the said Bimal Kumar Nopany.
(d) Accordingly, the Joint Compromise Petition was filed before this learned Tribunal (the then Unit-1) on the basis of which a Certificate was issued.
(e) Since the Certificate Debtors failed to repay their dues in terms of the said compromise on an application of the certificate holder Bank this learned Tribunal on 26th June, 2000 passed an Order whereby the certificate debtors were injuncted from dealing with any of their properties including Premises No. 11, Rowdon Street, Kolkata being one of the mortgaged properties owned by Nopany Sons Pvt. Ltd. and Hanuman Industries India Pvt. Ltd. the said original defendant Nos. 4 and 5.
(f) Immediately, thereafter, the Misc. Applicant has taken out the instant Misc. Application to defeat the realisation of the certificate amount.
(g) The certificate holder Bank states that from the cause title of the plaint it would be evident that the original defendant No. 1 and the original defendant Nos. 4 and 5 are carrying on business and having their Registered Office at the same premises being No. 12, Govt. Place (East), Kolkata-700069.
(h) It is respectfully submitted that to lift the corporate veil, this learned Tribunal should direct an inquiry by the CBI Authority or any other Investigation Bureau of Govt. of India to ascertain the nature and character of the business activities of the certificate debtors including the certificate debtors Company to protect the interest of certificate holder, a nationalised Bank having an outstanding of more than Rs. 15 crores.
(i) It is further submitted that an order of inquiry as against the deponent who have affirmed the said Joint Compromise Petition also be made to ascertain the relationship between certificate debtors Companies and the said deponent at the time of...
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