Debt Recovery Appellate Tribunal - Kolkata
Tapan Kumar Das vs State Bank Of India And Ors. on 1 September, 2006
Equivalent citations: I(2007)BC178
JUDGMENT
Arunabha Barua, J. (Chairperson)
1. The matter relates to an application by an appellant under Order 33 of the CPC for exemption from paying the requisite appeal fees treating him as an indigent person.
2. The long and short of the reasons that are made out to make this application for such exemption of fees is this.
3. The applicant/appellant was a managing partner of a registered partnership firm namely, "North Bengal Pharmaceutical Works" and he is also a technically qualified entrepreneur. He started his business well being encouraged by the Directorate of Cottage and Small Scale Industries, Government of West Bengal, to set up this pharmaceutical unit of industry financed by the West Bengal Financial Corporation (term loan), the District Industries Centre, Malda (seed money) and State Bank of India (working capital). His business was a need-based fund small scale unit and he was to execute the Government orders within due time. It is alleged that due to deliberate negative attitude of respondent No. 1-Bank for releasing the need based funds in spite of 100% security, the firm got blacklisted and penalized by confiscation of security deposit for non-execution of various orders by Government organizations which resulted in closing down of the said partnership business. It is further alleged that though with the help of District Industries Centre, Malda and higher authorities of the Cottage and Small Scale Industries, Government of West Bengal, the respondent No. 1 above named agreed to take the said partnership firm for rehabilitation under 'Nursing Programme', but ultimately the said programme became frustrated due to desperate refusal of reasonable, legitimate and need-based funds for smooth running of the said small scale unit, caused huge liability without recourse of payment resulting in closing down of the business. All these culminated in incurring huge loss and denting the goodwill of his business, also consequent mental distress and virtual starvation. The applicant was drained of all sources of his income and became an indigent person. The applicant has also a hefty counterclaim. He lives with his family and dependent on his only son who has only recently got a job. He has further stated that he has no immovable property of his own and only has some household movable articles worth Rs. 40,600/- only. He is therefore, an indigent person having no means at all to pay the requisite fees on the appeal. On 5th April, 2005 the petitioner moved an application under Order 33 of CPC before the D.R.T.-II praying for exemption of the required fees to be paid for the counter claim he made against the Bank but that was rejected on 8th April, 2005 and the D.R.T. duly passed the judgment/certificate against the applicant/appellant. Being aggrieved against that the applicant has intended to file this appeal without the fees for reasons aforesaid. The petitioner has relied upon a judgment of the Supreme Court in A.A. Haja Muniuddin v. Indian Railways , in support of his case.
4. The respondent-Bank has filed affidavit-in-opposition where it is mainly contended that the term "indigent person" does not find place in the RDDBFI Act of 1993 and Order 33 of CPC resorted to by petitioner is confined only, to "suit", that the petitioner did not earlier make any such application as an indigent person before the D.R.T. or before the Hon'ble High Court, that the petitioner-appellant is not at all an indigent person and he is required to pay a fee of Rs. 20,000/- for filing this appeal.
5. I have heard submissions of learned advocates of both sides.
6. The learned advocate for the petitioner/appellant has heavily relied upon the judgment of the Supreme Court in A.A. Haja Muniuddin v. Indian Railways, (supra), the relevant portion of which runs follows:
Sub-section (1) of Section 18 states that the Claims Tribunal shall not be bound by the procedure laid down by the Code but shall be guided by the principles of natural justice and shall have powers to regulate its own procedure. It is true that Sub-section (1) of Section 18 in terms states that the claims laid down by the Code but that does not mean that it is precluded from invoking the procedure laid down by the Code even if the ends of justice so require.
Although the Act and the Rules do not specifically provide for the application of Order 33 of the Code, there is nothing in the Act or the Rules which precludes the Tribunal from following that procedure if the ends of justice so require. If the view taken by the Tribunal is accepted as laying down the correct law, the result would be that a claimant who has a genuine claim for compensation under the provisions of the Act would be denied access to the Claims Tribunal if he is an indigent person and does not have the means to pay the fee required on the claim-application. Before the establishment of the Claims Tribunal he would have been able to file the suit invoking Order 33 of the Code as an indigent person. Now that a Special Claims Tribunal has been established under the Act, can it be said that indigent persons who do not have the means to pay the fee required on the claim application are altogether debarred from seeking compensation from the railway administration for the wrong done to them? Access to Justice cannot be denied to an individual merely because he does not have the means to pay the prescribed fee. Such a view would leave indigent persons without a remedy. It is, therefore, essential that the provisions of the Act and the Rules must be broadly interpreted to ensure access to justice. If a claimant is left without redress even if he has a valid claim against the railway administration merely because he is an indigent person; it would be a sad day and the poor will lose confidence in the system. No one can be heard to say, much less the railway administration, that even though the claimant has a genuine claim for compensation against the railway administration, he must forgo the same if he does not have the means to pay the requisite fee. Such an interpretation which denies justice must be avoided. Section 18(1) only says that the Claims Tribunal 'shall not be bound' by the procedure laid down by the Code but does not go so far as to say that it 'shall be precluded' from invoking the provisions laid down by the Code even if the same, is not inconsistent with the Act and the Rules. Since the Claims Tribunal is empowered to regulate its own procedure, there is nothing in the Act and the Rules which precludes the invocation of Order 33 of the Code. A view which advances the cause of justice must be preferred to the one which defeats it. We are therefore, of the opinion that the Tribunal adopted a narrow interpretation of the relevant provisions of the Act in coming to the conclusion that the Act as well as the Rules did not permit invocation of Order 33 of the Code. The view taken by the Tribunal results in a person not having the means to pay the fee prescribed for preferring a claim being left without a remedy. Such a view would result in gross injustice.
7. The learned advocate for the petitioner/appellant submits that though it is, true that there is no provision in "RDDBFI Act, 1993" for waiver of the requisite fees for filing appeal but as per the law laid down by the Hon'ble Supreme Court, the facts and circumstances of the case also squarely apply to the instant matter. He submits that the petitioner/appellant has had no alternative except being compelled to file this application under Order 33 of CPC, that according to the Supreme Court judgment though the Act and Rules of the Claims Tribunal do not specifically provide for the application of Order 33 of the CPC, there is nothing in the Act or the Rules which precludes the Tribunal from following that procedure if the ends of justice so require. He has further submitted in terms of the statement of the petitioner as already discussed above that the petitioner has positively averred his poor financial state of things and had detailed, in his petition the small property which he has. He has further submitted that the petitioner has also detailed in his petition how he has been an unfortunate victim of the deliberate negative attitude of the respondent-Bank in connection with the releasing of the need-based funds inspite of 100% security. He has further explained how the petitioner has been treated with apathy, indignity and unreasonableness by the respondent-Bank. It is also submitted that the petitioner has strong points for contention and to see success in the appeal. He concluded, that being an indigent person, the petitioner is now too poor to bear the brunt of paying the hafty fee of Rs. 20,000/- for the appeal being registered and the petitioner would be highly prejudiced and his right of appeal lost if for want of fees his application is refused and justice being denied to him. This is a fit case when, petitioner should be exempted from paying the appeal fees.
8. Learned advocate for the respondent-Bank in reiterating the statements, and submission as already discussed above has pointed out that the question of exemption of the appeal fees of Rs. 20,000/- is totally beyond the scope and ambit of the RDDBFI Act, 1993 we arc presently dealing with and that even if we look to Order 33 of the CPC in aid of the petitioner, it docs not help because the provision is limited to "Suit", not applicable for the appeal.
9. I am afraid, I do not see any force in the submissions made on behalf of the respondent-Bank. On the contrary, I find enough of substance in the submissions made on the side of the petitioner-appellant.
10. The principles of law enunciated by the Supreme Court in A.A. Haja Muniuddin referred to above settles the proposition yet again that in dispensation of justice by the Court of Law, to secure the "ends of justice" in litigation are the last golden words for guidance. Courts, and for that matter Tribunals, exist to give access to justice to the poor, common people. It is a Constitutional mandate.
11. This is already stated how painstakingly the petitioner/appellant has detailed his predicament in trying for his small industrial unit to stand and grow but failed. In this limited question of allowing exemption of hefty appeal fees we need not probe whether it was his own fault or the Bank's. That question can be taken and decided when the appeal is underway. But, for now, it is enough if the appellant/petitioner has been able to show, a strong prhna facie case to lead the Court or Tribunal to believe that he may indeed be too poor to pay the appeal fees of Rs. 20,000/- to even have his access to justice to place his points for a decision on merits.
12. The petitioner-appellant has stated in solemn affirmation the state of his movable and immovable property and the acute financial crisis he had landed in. Most importantly, all these assertions by the petitioner are not at all assailed in any material particulars by the respondent-Bank. So, for the limited purpose of our satisfaction whether, the petitioner is an "indigent person", these uncontroverted assertions by the, petitioner by solemn affirmation are sufficient to give him the allowance he has prayed for that he be exempted from paying the requisite fees for the appeal under the special circumstances.
13. I believe, there is no point saying that petitioner did not try such similar application before in the D.R.T. or the Hon'ble Court as an "indigent person". The point is, whether now he is too poor or incapable to pay the appeal fee of Rs. 20,000/- to have his hearing made. It is also settled that in a given case, it is quite within the competence of the Tribunals to apply the provision of the CPC if the ends of justice so require. To my mind, in this view of the matter, the balance is certainly tilted in favour of the petitioner to allow him the door to justice and not to slam it shut.
14. I think, under the special facts and circumstance spelt out the prayer of the petitioner should be allowed for the ends of justice.
15. Accordingly, the application for exemption of appeal fees is allowed the appeal be registered without the fees.