Calcutta High Court
Eastern Paper Mills Machinery Pvt. Ltd. ... vs State Bank Of India And Ors. on 23 August, 2004
Equivalent citations: (2005)1CALLT234(HC), 2005(1)CHN264
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT Pranab Kumar Chattopadhyay, J.
1. The petitioners herein have challenged the order dated 16th July, 2003 passed by the Debts Recovery Appellate Tribunal (hereinafter referred to as 'DRAT'). By the said order, learned Chairperson of the DRAT was pleased to set aside the order passed by the Debts Recovery Tribunal - II, Kolkata (hereinafter referred to as 'DRT') on March 7, 2003.
2. It was alleged on behalf of the respondent bank before the DRAT that the learned Presiding Officer of DRT passed the aforesaid order on 7th March, 2003 recording entire claim of the respondent bank as settled at Rs. 58.51 lakhs with interest in terms of the provisions of OTS-2003 (One-time Settlement Scheme, 2003) ignoring the objections raised on behalf of the respondent Bank against recording of the said settlement.
3. The question agitated before the DRAT is whether the decree/certificate issued by the DRT-II was passed on compromise/settlement or otherwise. It has been specifically submitted on behalf of the respondent bank that there was no settlement and hence, the order of DRT-II dated 7th March, 2003 should not be treated as a consent order.
4. The undisputed facts relating to this matter are mentioned hereinafter :
In April, 1991, State Bank of India (hereinafter referred to as 'Bank') filed Title Mortgage Suit No. 73 of 1991 in the Court of learned Asstt. District Judge at Barasat against Eastern Paper Mills Machinery Pvt. Ltd., Adhir Kumar Bose, Mrs. Pushpa Bose, Amitava Bose, Anil Kumar Bose, Enayet Ali and Azizur Rahman, praying for a decree for Rs. 1,56,92,599.57p against the defendants jointly and severally.
5. The mortgage property is comprised of 30 Bighas, 10 kottahs and 8 chattaks of land with building, shed, erection, fittings and fixtures standing thereon. The mortgaged property was valued by High Court Panel Valuer over Rs. 2 crores.
6. Upon enactment of the Recovery of Debts Due to Banks and other Financial Institutions Act, 1993 (DRT, Act for short) on 24.06.1993, the Title Mortgage Suit No. 73 of 1999 in 1996 stood transferred to Debts Recovery Tribunal-II, Kolkata, in terms of Section 31 of DRT Act, and was registered as T.A. No. 67 of 1996.
7. During the pendency of the said proceedings, Reserve Bank of India (RBI) issued "One-time Settlement Scheme" 2000 ("OTS-2000", in short). The said scheme was operative only upto 31.03.2001 and claim amount settled thereunder was required to be paid in the manner provided therein within a period of one year from the date of settlement.
8. By the letter dated 31.03.2001 (i.e. the last date of validity OTS), the writ petitioner made an offer for settlement at Rs. 58.51 lakhs which was accepted by the Bank provided payment was made in strict conformity with the said OTS-2000.
9. By the letter dated 10.04.2002, Bank recorded that within the stipulated one year period, writ petitioner failed to make any payment and comply with the terms of settlement.
10. Writ petitioners did not pay the said settled amount of Rs. 58.51 lakhs or interest or any part or portion thereof within the stipulated period of one year.
11. In October 2002, writ petitioners made an application before DRT praying, inter alia, for-
(a) The plaintiff be directed to consider the settlement proposal of the petitioners and to settle its claims fully and finally at Rs. 58.51 lakhs, the amount fixed under the settlement scheme;
(b) Payment of any interest on the above amount be completely waived;
(c) The order dated 25th July, 2002 passed in T. A. No. 31 of 2001 be set aside, quashed and/or recalled;
(d) The appointment of Special Officer/Receiver be recalled and cancelled;
12. On 25.11.2002 Bank filed an application before DRT and objected to the settlement of Bank's claim at Rs. 58.51 lakhs.
13. Writ petitioners herein filed an application before DRT on 7th January, 2003 praying that the learned Tribunal may-
(i) Formulate the terms of possible settlement between the parties;
(ii) Refer the same for judicial settlement or for mediation as the learned Tribunal may deem fit and proper;
(iii) Effect a compromise between the parties.
14. OTS-2003 was issued by the Reserve Bank of India on 29th January, 2003. The terms and conditions of OTS-2003 were similar and identical to earlier OTS-2000 excepting limit of compromise settlement was increased from Rs. 5.00 lakhs to Rs. 10.00 lakhs.
15. No fresh offer of settlement/compromise under OTS-2003 was proposed/ forwarded by the writ petitioners to the Bank.
16. Writ petitioners filed an application before DRT on 5th February, 2003 praying, inter alia, for-
(i) Pass orders thereby directing the plaintiff Bank to settle its claim fully and finally at Rs. 58.51 lakhs being the amount settled under the previous scheme:
(ii) Pass orders to frame the terms of compromise in view of the revised guideline of compromise settlement dated 19.01.2003, and
(iii) Such further order and/or orders.
17. Bank filed counter-reply to writ petitioners' application dated 05.02.2003 and stated that the offer of settlement was not acceptable to the Bank and the amount required to be paid under OTS-2003 was Rs. 1,56,73,197.88p.
18. Notwithstanding those objections filed by the Bank, in the form of petition and counter-reply, DRT-II passed an order on 7th March, 2003 to the effect that under the provisions of OTS-2003, the entire claim of the Bank is settled at Rs. 58.51 lakhs and in default of payment Bank would be entitled to its claim of Rs. 1,56,92,599.72p.
19. The appeal filed by the Bank against the order of DRT-II dated 07.03.2003 before the DRAT was allowed and the said impugned order was set aside by the learned Chairperson of the said DRAT by the impugned order dated 16th July, 2003.
20. According to the petitioners, it was a settlement as provided under Onetime Settlement (hereinafter referred to as 'OTS') Scheme issued by Reserve Bank of India which is mandatory and binding on the Bank, as held by Hon'ble Supreme Court in , Central Bank of India v. Ravindra and Ors., paragraphs 51 and 52; , Corporation Bank v. D. S. Gowda and Anr., paragraphs 11, 16 and 24.
21. Mr. Anindya Mitra, learned Senior Counsel appearing on behalf of the petitioners submits that it is a statutory settlement and OTS gave no discretion to the bank and is also binding on the bank. The formula for calculating the amount of settlement has been set out in the OTS.
22. There has been two OTS Schemes, OTS-2000 and OTS-2003. According to Mr. Mitra, OTS-2003 was framed by the Reserve Bank of India for providing one more opportunity to the borrowers to settle their outstanding dues.
23. It has been submitted on behalf of the petitioners that the amount of settlement means the settlement as per the settlement formula which is same and identical both in OTS-2000 and OTS-2003. The said settlement formula under OTS-2000 and OTS-2003 is quoted hereunder :
"100% of the outstanding balance in the account as on the date of transfer to the protested bills account or the amount outstanding as on the date on which account was categorised as doubtful NPAs, whichever happened earlier, as the case may be".
24. In the present case, respondent bank determined the amount of settlement under OTS-2000 and by the letter dated 31st March, 2001 intimated the amount to be Rs. 58.51 lakhs. The said letter clearly shows that the borrower's account had prior to 31st March, 1997 been transferred to protested bills account or had been categorised as doubtful NPA since the letter dated 31st March, 2001 was issued under OTS-2000. The contents of the said letter also shows that Rs. 58.51 lakhs was 100% of the outstanding balance in the account of the borrower as on the date of transfer to the protested bills account or as on the date on which the account was categorised as doubtful NPA, whichever happened earlier. This happened on or before 31st March, 1997, which was the cut off date under OTS-2000. There will be no difference in the amount of settlement under OTS-2003 because the relevant event (transfer of 100% of the outstanding balance in the account to protested bills account or the amount outstanding as on the date on which account was categorised NPA whichever happened earlier) under OTS-2003 was required to happen prior to 31st March, 2000. The amount outstanding gets frozen as on the date of transfer to protested bill account or upon categorisation as doubtful NPA which in this case was prior to 31st March, 1997.
25. From Annexure 'P-15' to the writ petition, it appears that the respondent bank also categorically admitted before the Debts Recovery Tribunal-II, Kolkata by filing a petition that the writ petitioners herein qualified for OTS-2003.
26. Incidentally, it may be mentioned that Bank had considered the borrower to be defaulter prior to 31st March, 1997. The suit was filed by the Bank much prior to 1997.
27. Once the amount of settlement is calculated as per the settlement formula set out in the OTS, the said amount is required to be paid 25% upfront and the balance amount of 75% within one year together with interest at Prime Lending Rate (PLR). This is under OTS-2000.
28. OTS-2003 contains similar stipulations like OTS-2000 regarding payment of settlement amount, including payment of interest.
29. It has been submitted by the learned Counsel of the petitioners that since the amount payable under both OTS-2000 and OTS-2003 is the same in this case, the question as to under which OTS, payment has been directed to be made by DRT-II is really academic.
30. It is admitted by the bank that the agreement under OTS-2000 was concluded by the bank and borrower but the bank's case is that under the said agreement, final payment was to be made within 31st March, 2002 which the borrower did not make and hence, the agreement was breached by non-performance.
31. According to Mr. Mitra, the aforesaid contention of the bank is not factually correct as the bank by its letter dated 24th January, 2002 asked the borrower to make payment before 31st March, 2002 and specifically mentioned that any delay in payment will invite interest at PLR (Prime Lending Rate). Mr. Mitra further submits that the said letter clearly shows that the bank was agreeable to accept the payment beyond 31st March, 2002 provided interest at PLR was paid.
32. Mr. Mitra also referred to the letter dated 10th April, 2002 issued by the bank wherein it has been recorded that the settlement was arrived at Rs. 58.51 lakhs under OTS Scheme and the borrower was reminded to take steps to clear the amount with interest within one year from the date of settlement which the borrower failed to comply with. However, in the said letter, borrower was advised to take note of the contents of the said letter and arrange accordingly which, according to the learned Counsel of the petitioner, clearly shows that the bank asked for payment with interest for delayed period. Mr. Mitra specifically urged before this Court that the agreement between the bank and the borrower was. concluded and the settled amount of Rs. 58.51 lakhs was required to be paid by the borrower within one year and interest at PLR for the period of delay in making payment of the settled amount.
33. It has been claimed on behalf of the petitioners that by way of confirmation of the said agreement, a sum of Rs. 1.25 lakhs had been paid to the bank. Mr. Mitra, learned Senior Counsel of the petitioners submits that the DRT-II has rightly directed payment of Rs. 58.51 lakhs with interest at PLR, i.e. 11.5% per annum from 1st April, 2001 (being the due date of payment under the agreement) till the date of payment of the entire amount.
34. Mr. Mitra further submits that the borrower has paid 25% of the amount within the time as fixed by DRT-II and bank has accepted the same and also encashed the cheques dated 13th March, 2003 in this regard. According to the. petitioners, after accepting the first instalment in terms of the order of DRT-II, the respondent bank did not accept payment of balance amount which was tendered within due date as fixed by DRT-II with interest.
35. From the records it appears that on 14th June, 2003 the borrower issued a cheque for Rs. 56,36,138.19 lakhs (balance principal amount of Rs. 58.51 lakhs and also Rs. 14,10,138.19/- on account of interest upto 15th June, 2003). The said cheque was refused. Thereafter, the borrower deposited the said amount of Rs. 56,36,138.19 lakhs with DRT-II on 16th June, 2003 by filing an application.
36. Mr. Mitra submits that after having accepted part of the order of DRT-II as mentioned hereinbefore, bank preferred an appeal before the DRAT on April 23, 2003. According to Mr. Mitra, after accepting part of the order and implementing the same and enjoying the benefit thereunder, the respondent bank was not entitled to prefer an appeal challenging the validity of the said order passed by the DRT-II.
37. Mr. Mitra further submits that even if the petitioner's case of agreement under OTS-2000 is not accepted then also the position will be the same and the order of DRT-II can be supported on the basis of OTS-2003 as it is a case of statutory settlement i.e. settlement by operation of law and bank has no discretion in the matter apart from the fact that the amount payable under OTS-2003 will be the same as under OTS-2000, namely, Rs. 58.51 lakhs + interest at PLR.
38. The learned Counsel of the petitioners referring to the petition filed on behalf of the respondent bank before the learned DRT-II being Annexure 'P-15' to the writ petition specifically submits that the respondent bank not only admitted in the said petition that the writ petitioners herein qualify for RBI-OTS-2003 but also prayed for a direction upon the writ petitioners for making payment of the settled amount as mentioned in the said petition. It has already been pointed by the learned Counsel of the petitioners that the amount of settlement under OTS-2000 and the amount of settlement under OTS-2003 will be exactly the same in the present case.
39. The learned Senior Counsel of the writ petitioners specifically contended that OTS Scheme has not only the statutory force but the same is also binding upon the respondent bank and under OTS Scheme bank has no other option but to settle with the borrower. According to Mr. Mitra, in the instant case, bank has clearly consented for settlement of the outstanding dues of the writ petitioners at Rs. 58.51 lakhs and could not resile from the said settlement as has been specifically recorded in the letter dated 31st March, 2001 issued by the Chief Manager of the respondent State bank of India to the Director of the petitioner company.
40. According to the learned Advocate of the petitioners, DRT-II only recorded the compromise regarding settlement of the outstanding dues of the petitioner company arrived at between the parties at Rs. 58.51 lakhs and ho consent decree was required to be passed.
41. In support of the aforesaid arguments advanced on behalf of the writ petitioners, Mr. Mitra, learned Senior Counsel of the writ petitioners cited the following decisions :
(1) , Central Bank of India v. Ravindra and Ors., (paragraphs 51 & 52) (2) , Corporation Bank v. D. S. Gowda and Anr., (paragraphs 11, 16 & 24) (3) , C. F. Angadi v. Y. S. Hirannayya. (paragraphs 11, 12 & 13) (4) , Bhaja Govinda Maikal and Anr. v. Janaki Dei and Ors., (paragraphs 3 & 4) (5) 1999(1) CHN 59, United Bank of India v. Abhijit Tea Co. Pvt. Ltd.
42. Mr. Ajoy Chatterjee, learned Senior Counsel of the respondent Bank, however, submits that the settlement under OTS-2000 failed and/or lapsed due to non-payment by the petitioners. Mr. Chatterjee further submits that under OTS-2000, the writ petitioners made an offer for settlement of the bank's dues at Rs. 58.51 lakhs which was accepted by the bank and was also recorded in the letters exchanged between the parties on 31st March, 2001 and 24th January, 2002 on the specific condition that the payment of the settlement amount and interest thereof shall be paid within one year i.e. 31st March, 2002.
43. According to the learned Counsel of the respondent bank, the writ petitioners did not pay the settled amount of Rs. 58.51 lakhs or interest or any part or portion thereof and the time having lapsed and no payment having been made by the writ petitioners within the time, the agreement for settlement had failed and lapsed by efflux of time and bank stood discharged of the same. The learned Counsel of the respondent bank further submits that no offer of settlement/compromise was made on behalf of the petitioners under OTS-2003.
44. The learned Counsel of the respondent bank submits that the DRT-II by the order dated 7th March, 2003 recorded the already lapsed compromised amount of Rs. 58.51 lakhs as settled amount under OTS-2003 while there was no offer of compromise/settlement from the writ petitioners under OTS-2003 and bank never agreed but objected to the same. Mr. Chatterjee further submits that the default clause mentioned in the order dated 7th March, 2003 was never part of any settlement. Therefore, according to the learned Advocate of the respondent bank, the order of DRT-II dated 7th March, 2003 recording settlement at the lapsed compromised amount of Rs. 58.51 lakhs under OTS-2003 was clearly without jurisdiction. Mr. Chatterjee categorically submits that the DRT-II passed the order dated 7th March, 2003 ignoring several objections raised by the bank against settlement of the bank's claim at Rs. 58.51 lakhs.
45. It has been alleged by the learned Counsel of the respondent bank that the learned DRT-II forced the settlement upon the parties ignoring the objections raised on behalf of the respondent bank. Referring to a Division Bench judgment reported in AIR 1952 Travancore 547, Gouri Amma v. Parameswara, Mr. Chatterjee submits that Court cannot impose settlement on the parties. Mr. Chatterjee referred to and relied upon another Division Bench judgment in this regard reported in 1999(1) CHN 59, United Bank of India v. Abhijit Tea Co. Pvt. Ltd.
46. The learned Counsel of the respondent bank further submits that in an application filed under Article 226 of the Constitution of India, Court cannot go into the detailed investigation of the order impugned particularly when there is no apparent error on the face of the said order passed by the DRAT. Mr. Chatterjee also submits that DRAT has jurisdiction to entertain the appeal against the order of the DRT and was justified in setting aside the said order of the DRT after detection of various illegalities and irregularities in the said order of the DRT. Mr. Chatterjee further submits that there was no jurisdictional error on the part of the DRAT in entertaining the appeal from the order passed by the learned DRT and as such the present writ petition should not be entertained by this Hon'ble Court. The learned Counsel of the respondent bank referred to the following decisions in support of his aforesaid contentions :
(1) , Chanda Bhaskar S. R. Rao v. Ashalata S. Duram (2) , Ranjeet Singh v. Ravi Prakash.
47. Although it has been submitted on behalf of the respondent bank that Court cannot impose settlement upon the parties but in the instant case, I am of the view that DRT has not done so. The settlement, in my view, has been forced by the Reserve Bank of India upon the respondent bank under the guidelines mentioned in the OTS Scheme which is binding upon the respondent bank by operation of law under Section 35A of the Banking Regulations Act, 1949.
48. In any event, it cannot be disputed that by the written communication dated 31st March, 2000, Chief Manager of the respondent State Bank of India categorically accepted the offer of Rs. 58.51 lakhs for settlement of the dues of the petitioner company under RBI-OTS Scheme. Furthermore, in the said letter it was also categorically mentioned that any delay in payment later than 31st March, 2001 would entitle the respondent bank to claim interest at bank's PLR.
49. By the subsequent letter dated 24th January, 2002, Assistant General Manger of the respondent bank also referred to the settlement arrived with the petitioner regarding payment of the dues. The text of the letter of the said Assistant General Manager, State Bank of India dated 24th January, 2002 is quoted hereunder:
"In connection with above, we advise that we have not received any amount under RBI-OTS Scheme settled by us vide our Lake Town Branch letter CM No. 2000-2001/628 dated 31.03.2001. As per the settlement you are supposed to pay the entire settled amount before 31st March, 2002. You are, therefore, requested to pay the amount without any further delay. Please also note that delay in payment invites interest at PLR".
50. The said Assistant General Manager further wrote a letter on 10th April, 2002 to the Director of petitioner company wherein it has been specifically admitted that a compromise was settled in respect of the outstanding dues of the petitioner company. The text of the said letter dated 10"' April, 2002 is quoted hereunder:
"We advise that a compromise was settled against your outstanding dues for Rs. 58.51 lakhs under RBI-OTS Scheme".
51. The learned Chairperson of the DRAT also admitted the aforesaid settlement between the petitioner company and the respondent bank and specifically observed in the impugned order dated July 16, 2003 as hereunder:
"The failure by the respondents to pay the settled sum of Rs. 58.51 lakhs, in accordance with the guidelines of 2000 over a period of more than a year had undeniably terminated the agreement of settlement between the parties, and rendered the respondents, 'wilful defaulters'."
I do not find how the agreement of settlement was terminated as mentioned by the learned Chairperson DRAT in the aforesaid impugned order.
52. The respondent bank has made it clear in its successive written communications that delay in payment would invite interest at PLR.
53. Mr. Ajoy Chatterjee, learned Counsel of the respondent bank although submitted before this Court that the settlement arrived under OTS-2000 Scheme came to an end on 31st March, 2001 and no further settlement was arrived at under the subsequent scheme of 2003 but the learned Chairperson of the DRAT came to the following finding :
"The learned Presiding Officer erred in awarding the bank Rs. 58.51 lakhs as being the settled amount though the records clearly showed that in fact there was no settlement among the parties whatsoever".
54. In my view, the aforesaid finding of the learned Chairperson of the DRAT is not supported by the records as the authorities of the respondent bank admitted in writing that a compromise was settled in respect of the outstanding dues of the petitioner company at Rs. 58.51 lakhs under RBI-OTS Scheme which has been specifically mentioned by the Assistant General Manager of the respondent bank in his letter dated 10th April, 2002 and has been mentioned hereinbefore.
55. Scrutinising the relevant records I am of the view that the amount of settlement under OTS Scheme-2003 cannot be different from the amount settled under the OTS Scheme 2000. Accordingly, the amount of Rs. 58.51 lakhs settled by the respondent bank as the outstanding dues payable from the petitioner cannot be different under QTS-2003.
56. The learned Chairperson of the DRAT in the impugned order dated 16th July, 2003 although observed that it was not within the power of the DRT to settle the claim under the RBI guidelines containing OTS but the respondent bank filed an application before the DRT-II and specifically prayed for a direction to the effect that the defendant should make payment of the settled amount. The respondent bank also categorically submitted before the DRT-II that the petitioner company qualify for RBI-OTS 2003 and accordingly, prayed for a direction upon the petitioner company for making payment of the settled amount.
57. The application filed on behalf of the respondent bank before the DRT in this regard has also been mentioned in the impugned order passed by the learned Chairperson of the DRAT to the following effect:
"The respondent Nos. 1, 2 and 3 made an application under Section 89 of the Code of Civil Procedure, 1908 and inter alia prayed that, 'the terms of a possible settlement be formulated and effect a compromise between the parties.'............"
58. From the documents available before this Court it can be held without any fear of contradiction that a compromise was settled in respect of the outstanding dues of the petitioner company at Rs. 58.51 lakhs under RBI-OTS Scheme which has been specifically mentioned by the Assistant General Manager of the bank in his written communication to the Director of the petitioner company on 10th April, 2002.
59. The settled amount under RBI-OTS-2000 cannot be different from RBI-OTS-2003 in view of the settlement formula mentioned in both the OTS-2000 and OTS-2003. In both the aforesaid guidelines it has been specifically mentioned in the settlement formula that compromise settlement formula of NPAs classified as doubtful or lost would be cent percent of the outstanding balance in the account as on the date of transfer to the Protested Bills Account or the amount outstanding as on the date on which the account was categorised as doubtful NPAs, whichever happened earlier as the case may be. Following the aforesaid settlement formula, Bank agreed to settle the outstanding dues of the petitioner company at Rs. 58.51 lakhs.
60. The learned Chairperson has completely ignored the fact that in order to give one more opportunity to the borrowers to come forward for settlement of their outstanding dues, RBI-OTS-2003 Scheme was formulated and implemented and as such it cannot be overlooked that even if the petitioner's case of agreement under OTS-2000 is not accepted then also the position will be the same as the bank has specifically admitted that the petitioner company is eligible under OTS-2003 and the amount payable under OTS-2003 will be the same as under OTS 2000, namely, Rs. 58.51 lakhs + interest at PLR. Bank has no discretion in the matter, as it is a case of settlement by operation of law.
61. The learned Chairperson also observed in the impugned order that parties should jointly pray for a decree in terms of the settlement without appreciating the fact that the settlement under the RBI-OTS was binding upon the bank by operation of law. The DRT has the power to decide whether the parties have arrived at a settlement as per the One-time Settlement Scheme.
62. The learned Chairperson of the DRAT, in my view, erroneously held that the failure by the petitioner company to pay the settled sum of Rs. 58.51 lakhs in accordance with the guidelines of 2000 had terminated the agreement of settlement between the parties. Under the scheme, for any delay in payment, the respondent bank is only entitled to charge interest at the Bank's PLR i.e. at the rate of 11.5% per annum and therefore, I fail to understand how delay in making payment could terminate the agreement of settlement in absence of specific stipulation in this regard.
63. The learned Chairperson of the DRAT has wrongly held that the earlier agreement for settlement was deliberately allowed to lapse ignoring the specific provision stipulated in terms of the settlement that any delay in making payment would only entitle the respondent bank to charge interest at Bank's PLR.
64. The unhappy expressions and the observations about the Presiding Officer of the DRT- II by the learned Chairperson of the DRAT also cannot be approved by this Court. The learned Presiding Officer of the DRT-II in his wisdom considered the subject-matter of dispute and passed necessary order in accordance with law. In my view, the learned Presiding Officer of the DRT never acted beyond his power and/or jurisdiction in the present case and therefore the observations of the learned Chairperson of the DRAT in respect of the Presiding Officer, DRT-II, is uncalled for and unwarranted and I do not approve the same.
65. The learned Chairperson of the DRAT has committed serious errors in deciding the appeal preferred by the respondent bank as has been mentioned hereinbefore and wrongly set aside the order passed by the learned Presiding Officer, DRT-II. The learned Chairperson has also failed to appreciate that RBI guidelines are mandatory and binding on the banks and in the present case, the bank was agreeable to accept Rs. 58.51 lakhs in full and final settlement of its claim under RBI-OTS Scheme.
66. The cases cited by the learned Counsel of the respondent bank, in my view, are clearly distinguishable in the facts of the present case. In the present case, this Court did not appreciate the evidence and only considered the issues on point of law. Accordingly, I am of the opinion that the decisions cited by the learned Counsel of the respondent bank are not at all applicable in the facts of the present case.
67. Furthermore, the learned Chairperson of the DRAT has failed to appreciate the ambit and scope of OTS guidelines and has erroneously declared the petitioner company as wilful defaulters' and transferred the matter to DRT-III for further hearing without any valid reason.
68. For the aforementioned reasons, I am constrained to hold that the order passed by the learned Chairperson, DRAT, on July 16, 2003 cannot be sustained and the same is liable to be quashed. However, in the present case, the learned Presiding Officer of the DRT, in my opinion, has passed the appropriate order recording the entire claim of the respondent bank as settled at Rs. 58.51 lakhs with interest at PLR. Accordingly, I affirm the said order passed by the learned Presiding Officer, Debts Recovery Tribunal-II, Kolkata on March 7, 2003 and set aside the impugned order passed by the learned Chairperson, Debts Recovery Appellate Tribunal on July 16, 2003.
69. The writ petition is thus allowed. There will be, however, no order as to costs.
70. All parties concerned are to act on a xerox signed copy of this judgment on the usual undertaking.
Later:
71. After pronouncement of the judgment, the learned Counsel of the respondent-Bank prays for stay of the operation of the judgment and order. I find no reason to grant such stay. Accordingly the prayer for stay is refused.