Case: Zairemthanga, Presiding Officer Vs State Bank of India and Anr.. Guwahati Debt Recovery Tribunals
|Party Name:||Zairemthanga, Presiding Officer Vs State Bank of India and Anr.|
|Judges:||S.K. Mohapatra, Presiding Officer|
|Issue:||Recovery of Debts Due To Banks and Financial Institutions Act, 1993 - Sections 22, 22(c), 26, 26(2)|
|Citation:||I (2007) BC 34|
|Judgement Date:||August 23, 2005|
|Court:||Guwahati Debt Recovery Tribunals|
S.K. Mohapatra, Presiding Officer
This miscellaneous application has been filed on 12th January, 2005 under Section 22(c) read with Section 26 of Recovery of the Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred as "RDDBFI Act") with prayer for withdrawal/cancellation/modification of judgment dated 25th April, 2001 and certificate dated 30th April, 2001 passed in Original Application No. 69 of 1998.
The precise contention of applicant, who was defendant No. 2 in Original Application 69 of 1998 is that:
(i) He was guarantor for initial loan of Rs. 5 lacs, which has been repaid.
(ii) That subsequently in 1990 the loan was enhanced to 15 lacs and fresh separate loan agreements, in respect of Rs. 15 lacs were executed on 19th February, 1990.
(ii) Defendant No. 2 was not connected with the aforesaid fresh agreement for Rs. 15 lacs and, therefore, no certificate can be issued against him.
(iv) That there is clear error in the aforesaid judgment and certificate issued against the appellant.
The first question to be decided is whether the impugned certificate, issued by my learned predecessor in 2001, can be withdrawn/cancellcd/correcled under Section 26(2) of RDDBFI Act.
Section 26(2) of the RDDBFI Act envisages as under:
Notwithstanding the issue of a certificate to a Recovery Officer, the Presiding Officer shall have power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate by sending intimation to the Recovery Officer.
Admittedly, no appeal has been filed against the impugned judgment and, therefore, the certificate, dated 30th April, 2001, is clearly enforceable and has since attained finality.
In that view of the fact, it is pertinent to refer to the decision of the ease of S. Ravi v. Indian Bank III (2003) BC 112: 2002(2) I.S.J. (Banking) 337. wherein it was observed as follows:
Presiding Officer under Section 26 has the power to withdraw the certificate. The power in my opinion is limited. They do not enlarge the scope of review as if fresh suit or appeal is being decided....
If the order is set aside in appeal, withdrawal is contemplated. Secondly, in case of settlement or adjustment inter se the parties after the decree is passed, certificate can be withdrawn. In no other eventuality, Presiding Officer can withdraw his own certificate which has the effect of finality of determination of 'debt'.
It is thus seen that certificate...
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