Appeal No. 3 of 2002 (TA No. 209 of 2002). Case: United Bank of India Vs Shri Balai Chandra Das and Ors.. Kolkatta Debt Recovery Tribunals
| Case Number | Appeal No. 3 of 2002 (TA No. 209 of 2002) |
| Counsel | For Appellant: A.K. Roy Chowdhury, Adv. and For Respondents: S.K. Mitra and Aloka Mitra, Advs. |
| Judges | D.C. Thakur, Presiding Officer |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order 9, Rule 13; Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 22(2) and 26; Debts Recovery Tribunal (Procedure) Rules, 1993 - Rules 5A(2) and 7(2); Constitution of India - Articles 124, 141 and 227 |
| Citation | III (2004) BC 10 |
| Judgement Date | January 16, 2003 |
| Court | Kolkatta Debt Recovery Tribunals |
Judgment:
D.C. Thakur, Presiding Officer
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Mr. A.K. Roy Chowdhury, the learned Advocate appears for the appellant.
Mr. S.K. Mitra, the Learned Advocate along with Mrs. Aloka Mitra appears for the respondent certificate holder Bank.
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The appeal preferred by the certificate debtor against the impugned order made and passed on Friday, September 6, 2002 in TRP-56 of 2002, has been taken up for consideration with the Miscellaneous Application No. 41 of 1999 arising out of the judgment and order both made on May 6, 1997 passed by the learned Presiding Officer in OA No. 4 of 1994. The reason for the analogous hearing of both the appeal preferred as well as the Miscellaneous Application moved on July 13, 1999 is that since the judgment and order which were both made on May 6, 1997 by the Learned Presiding Officer in the above case preferred by the applicant Bank for the recovery of a sum of Rs. 13,71,457.54 p. against the said appellant and other, has been bad in law, the issue standing for determination is that the present recovery proceeding is being illegally conducted, because such one has been so far conducted pursuant to the impugned certificate of recovery issued.
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The recovery proceeding becomes, in a word, illegal; both the appeal and miscellaneous application need to be heard together because the basis of the recovery proceeding which has been subjected to the severe challenge therein is specifically the certificate of recovery, alleged to be illegal and intended to be set aside, which is ordinarily issued by the learned Presiding Officer, in case the person or persons against whom judgment has been pronounced have failed to pay the amount ordered to be paid within the prescribed time limit.
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Factually speaking, the judgment was passed on May 6, 1997. The application for recalling the order or judgment was moved on July 30, 1999. The said application for setting aside has been moved after a period of more than two years. That application has been moved by the applicant/appellant under Clause (g) of Sub-section (2) of Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which reads as follows:
The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:
............. (g) setting aside any order of dismissal of any application for defaulter any order passed by it ex parte.
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Though the said applicant/appellant has derived his knowledge about the delivery of judgment and passing of an order for payment on May 6, 1996 from the Notice of Demand dated January 22, 1998 from the learned Recovery Officer of the transferring Tribunal No. 1 conducted in connection with the recovery proceeding being RP No. 197 of 1997, instead of preferring an appeal against such ex parte judgment about which there has been laid down the remedial provision in Sub-section (2), Section 96 of the Code of Civil Procedure (hereinafter called the 'Code') which reads as follows-
An appeal may lie from an original decree passed ex parte
the miscellaneous application, which has been preferred for setting aside or recalling an illegal erroneous judgment and order is appearing to be labelled as an application under Clause (g) of Sub-section (2) of Section 22 of the said Act; and it is truly comparable with that under Rule 13 of Order IX of the First Schedule to the Code of Civil Procedure, laying down the following:
Setting aside decree ex parte against defendant--In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.
Explanation.--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.
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Though in Section 22 of the present Act, no time limit has been prescribed for making such an application, Section 24 of the said Act prescribes an action to be commenced within the prescribed period and has also been found in conferring the power of condoning a delay committed in preferring any application for commencing an action within the timelimit, by way of adopting, pari materia and enforcing the Limitation Act, 1963 as a whole. Section 24 confers the power of condonation, does not prescribe any timelimit as has been prescribed by Section 3 of the Limitation Act, 1963 in conjunction with the First Schedule to the Act of 1963 [Act No. XXXVI of 1963], appearing to be a 'general' one.
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So, for such purpose this Tribunal ought to have taken help from the Limitation Act, 1963, so far as the timelimit for making and filing an application under Order 9 Rule 13 of the First Schedule to the Code of Civil...
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