O.A. No. 12 of 2003. Case: State Bank of India Vs Aakarshak Supply Pvt. Ltd. and Ors.. Kolkatta Debt Recovery Tribunals
| Case Number | O.A. No. 12 of 2003 |
| Counsel | For Appellant: Udayan Sen and N.C. Kuila, Advs. and For Respondents: None |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Companies Act, 1956; Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 19(1), 19(5), 19(7), 19(12), 19(20) and 22(2); Code of Civil Procedure, 1908 (CPC) - Section 34 - Order 8, Rules 1, 5, 5(2) and 10 - Order 9, Rule 13 - Order 19, Rule 13; Banking Regulation Act, 1949 - Sections 21, 21A, 35A and 41; Debts Recovery... |
| Citation | I (2006) BC 103 |
| Judgement Date | May 31, 2005 |
| Court | Kolkatta Debt Recovery Tribunals |
Judgment:
D.C. Thakur, Presiding Officer
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The applicant Bank has, through its claim application filed on Thursday, March 27, 2003, tended to allege that in spite of the repeated reminders the defendant No. 1 has not cleared the due amount of itself which has been disbursed for the very reason of enabling the said defendant to enjoy the various sanctioned facilities; through the same application the Bank has also afforded to establish that the disbursement of the loan amount to the defendant No. 1, a registered Small Scale Unit, has been made possible only after it has been provided with the security and collateral security undertaken by the other six defendants standing as the guarantors in relation to the said defendant. In case the said application is read and examined for a moment, it shall be further established that such enjoyment by the defendant No. 1 has been an enjoyment in a corporate style and manner; after disclosing materially that the registration of charge, under the relevant provisions of the Companies Act, 1956 (Act No. 1 of 1956) with the Registrar of Companies, has also been made on behalf of the said defendant to provide the due protection to the various security arrangements of the Bank.
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As the applicant Bank had not been paid its demanded amount of Rs. 29,48,978.93 P. either jointly or severally by each of the seven defendants sued by itself, an application was registered on the aforementioned day and date before this Tribunal under Sub-section (1) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. (Act 51 of 1993). After being prima facie satisfied with the contents of the said claim application, this Tribunal had been pleased to issue the summons being the synonym of the legal process upon each of the seven defendants. Since no appearance was made, either through the learned Advocate or through the legal representative, by those defendants, the necessary paper publication was also made for the purpose of procuring the appearance of those defendants. Such arrangement has also been failed to give rise to any prospected result; then the Bank approached this Tribunal on Wednesday, September 10, 2003 for the very purpose of the protection to be afforded in respect of its secured assets. That day, this Tribunal had been pleased to grant ad interim reliefs to itself ex parte; such reliefs were granted to the Bank under Sub-section (12) of Section 19 of the said Act, though with a specific opportunity given to each of the above defendants to show cause or causes as to why the order made that day would not be made absolute against themselves. Amongst the reliefs may be mentioned the appointment of a Receiver that was, pursuant to the prayer made on behalf of the Bank, allowed. Against the said ex parte order, this Tribunal has been unable to have in its possession any affidavit-in-opposition from the defendants. The defendants have been given as many as seven times the opportunities for taking part in the present proceeding. From the record maintained by this Tribunal, it appears that on Wednesday, March 17, 2004 one Mr. Gopal Dikshit, claiming himself to be the father of the defendant No. 5, who is actually Mr. Bonty Sharma, has appeared in person and as the legal representative of the said defendant and the other defendants. That was the solitary occasion when a representative, whose credentials have not been established or proved, has appeared on behalf of those defendants. Even that Mr. Dikshit was given the opportunity for making his appearance before this Tribunal. Be it necessarily noted that on Wednesday, March 17, 2004 Mr. Dikshit has assured this judicial body of that the defendants would liquidate the entire amount subject to the condition that the amount shall be judicially determined by this Tribunal. It has not been proved before this Tribunal that under which capacity the above submission has been made. Even with keeping in mind the above anomalous facts this Tribunal has given further opportunity to the above non-appearing, non-participating defendants to take part to be characterised by the presentation of the written statement.
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It is well settled that any written statement shall necessarily be received by any judicial body as a counter pleading in a proceeding before itself. The written statement is like its counter part the mouth-piece of its author. It is also well settled that the written statement has been assigned in the field of pleading the character of a pleading to contain the specific denials of the plaint allegation or application allegation. To present the written statement in a suit or a proceeding has always been the right of a person sued or impleaded by the actor. The written statement has the only aim of denying what has been brought against the author of itself in the form of an allegation in the text of a plaint. It is with the above object Rule 1 has been incorporated in the body of Order 8 of the First Schedule to the Code of Civil Procedure, 1908 (Act 5 of 1908). It is with the similar object the Legislators have enacted and incorporated Sub-section (5) into the body of Section 19 of the present Act also to be received as the Act to regulate the entire proceeding judicially before a Tribunal to be set up under itself. In other words, the defendant or the defendants who are usually sued by a Bank or a financial institution shall have compulsorily the right of presenting the written statement, otherwise the very object of natural justice would be frustrated and defeated.
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What has been said shall...
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