Debt Recovery Appellate Tribunal - Mumbai
Ravindra And Anr. vs Bank Of Maharashtra And Anr. on 29 January, 2004
Equivalent citations: III(2005)BC1
ORDER
Pratibha Upasani, J. (Chairperson)
1. This Misc. appeal is filed by the appellants Mr. Ravindra Liladhar Rathi and Mr. Rajendra Liladhar Rathi/legal representatives of the original defendant No. 2 Mr. Liladhar Gopilal Rathi, being aggrieved by the order dated 30.7.2002 passed by the learned Presiding Officer of the Debts Recovery Tribunal, Nagpur in Interlocutory Application No. 376/2002 in Original Application No. 161/2001. By the impugned order, the learned Presiding Officer allowed the application made by the applicant Bank namely Bank of Maharashtra to bring on record the legal representatives of the deceased defendant No. 2 Liladhar Gopilal Rathi.
2. Few facts, which are required to be stated, are as follows:
The applicant Bank filed Special Civil Suit No. 573/1995 in the Court of Civil Judge, Senior Division, Nagpur against defendant Nos. 1 to 3 for recovery of Rs. 21,56,992-04 ps. The matter got protracted there only without the defendants filing their written statement in the Civil Court. The matter was then transferred to Debts Recovery Tribunal, Mumbai and was retransferred to the Debts Recovery Tribunal, Nagpur, where it was numbered as Original Application No. 161/2001. When the matter was pending before the Debts Recovery Tribunal, Mumbai, the summons sent to defendant No. 2 was returned with endorsement that the defendant No. 2 had expired. Subsequently after inquiry about legal heirs of defendant No. 2, the applicant Bank came up with the application praying that the Bank be permitted to implead the legal representatives of deceased defendant No. 2 namely Shri Rajendra Rathi and Mr. Ravi Rathi. It was mentioned that Mr. Rajendra Rathi was already on record as defendant No. 3. However, since it was necessary to also implead Mr. Ravi Rathi to the proceedings and Rajendra Rathi in his capacity and status as legal representative of deceased defendant No. 2 Liladhar Gopilal Rathi, application came to be made by the Bank.
3. The defendants filed their reply opposing this application on the ground that defendant No. 2 died on 7.8.1999 and the application for bringing on record legal representatives of deceased defendant No. 2 was made in the month of April 2002 and that there was no application for condonation of delay and hence, the application was barred by limitation. It was, therefore, prayed that the application be rejected.
4. The learned Presiding Officer of the Debts Recovery Tribunal, Nagpur after hearing both the sides and after considering the material placed before him came to the conclusion that as far as proceedings before the Debts Recovery Tribunal were concerned, concept of abatement was not applicable, The learned Presiding Officer also held that Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act states that the Tribunal and Appellate Tribunal are not bound by the procedure laid down by the Code of Civil Procedure, 1908 but are guided by the principles of natural justice and that provisions embodied in Order 22 Rule 4(3) of CPC were not applicable to the proceedings before the Debts Recovery Tribunal. He further observed that if these provisions contained in Order 22, Rule 4 of C.P.C. are made applicable to proceedings before these Tribunals then it will be highly detrimental to the claimant Banks and financial institutions. Holding this, the learned Presiding Officer allowed the application made by the Bank. Being aggrieved, the present Misc. appeal is filed by the appellants.
5. I have heard Ms. Kumud Singh for the appellants and Mr. Puranik for the respondent No. 1 Bank. I have also gone through the proceedings including the impugned order and in my view, though the final order passed by the learned Presiding Officer, allowing the application made by the Bank is correct, reasons given by the learned Presiding Officer for allowing the said application are erroneous for the reasons stated below:
It is true that Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act lays down that the Tribunal and Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, but shall be guided by the principles of natural justice. The findings given by the learned Presiding Officer to arrive at the conclusion is that concept of abatement is not applicable to the proceedings before the Debts Recovery Tribunal and that if the provisions of Order 22 Rule 4(3) are applied to these proceedings, it would be highly detrimental to the claimant Banks and financial institutions is improper, and in my view, is an erroneous finding. There is no reason to arrive at such a finding. As far as provisions of Limitation Act are concerned, Section 24 of the RDB Act lays down that provisions of the Limitation Act, 1963 shall, as far as may be, apply to the application made to the Tribunal. Thus, when party to the proceedings dies and if cause of action survives, legal representatives and heirs of the deceased are to be brought on record within a period of 90 days. If that is not done the suit automatically abates. So application for setting aside the abatement has to be made within two months thereafter and if there is delay, it is to be accompanied by application for condonation of delay. Now, in the present case at hand, we have to see the chronology of events and come to the conclusion whether the Debts Recovery Tribunal has rightly allowed the application of the Bank or not.
6. It is an admitted fact that the original defendant No. 2 expired on 7.8.1999. The contention of the applicant Bank is that they learnt about the death of the defendant No. 2 some time in March, 2002 and filed the application for bringing on record the legal representatives/heirs of the defendant No. 2 in the month of April, 2002. It is also an admitted fact that no application for condonation of delay was filed by the Bank. It is their contention that in fact there was no delay and application was made well within time. It is contended that the respondent No. 3 Shri Rajendra Liladhar Rathi was arraigned as party defendant No. 3 and, therefore, there was no question of abatement of the suit.
7. It is true that the defendant No. 3 Shri Rajendra Liladhar Rathi was already a party before the Court as party defendant No. 3 and, therefore, there was no question of abatement of the suit.
Mr. Puranik argued that such an application could not be said to be made within the prescribed period. He submitted that in the present case at hand, the residuary Article 137 of the Limitation Act, which says that such an application has to be made within three years of the death of the party. Mr. Puranik relied upon judgment of Justice B.V. Chavan, 1994(2) Bom. C.R. 92, Yadav Mahadeo Munne and Ors. v. Zibal s/o Tukaramji Irkhade (Deceased) by Legal Representatives and Anr. I have gone through the said judgment. In paragraph 9 to the said judgment, the learned Judge has held that the long standing legal position is that if one of the heirs of deceased defendant is brought on record, then he represents estate of the deceased for the purpose of the suit and in such circumstance, the suit does not abate even if the other legal representatives of the deceased are not brought on record. He has further observed that necessary sequel of this legal position is that if after the death of one of the parties, some of the legal representatives are brought on record within limitation or as in the present case they are already on record, then the suit does not abate as they represent the estate of the deceased and in such circumstances, the application to bring the remaining legal representatives on record is not governed by Articles 120 and 121 of Limitation Act, 1963 but that it would be governed by Article 137 of the Limitation Act. He has further observed that this is because some of the legal representatives are already on record the suit does not abate and, therefore, the question of the suit getting abated and the requirement of getting the abatement set aside does not arise in such circumstances. Consequently, Articles 120 and 121 of Limitation Act do not come into picture and the residuary Article 137 of the Limitation Act, which provides limitation of three years, would come into operation.
I am in agreement with the submissions made by Mr. Puranik that record reveals that application for bringing the legal heirs on record was made by the applicant Bank in April 2002 i.e. three years from the date of death of the defendant No. 2 (though the Bank has claimed that it learnt about death of defendant No. 2 in March, 2002 and ultimately proceeded to make application for bringing legal representatives of deceased on record in April 2002).
In view of the aforesaid discussion, I uphold the impugned order of the learned Presiding Officer but on different grounds and for different reasons. In view of this, the appeal will have to be dismissed. Hence, following order is passed:
ORDER Misc. Appeal No. 375/2002 is dismissed.