Debt Recovery Appellate Tribunal - Kolkata
U.C.O. Bank vs Chatterjee Polk Ltd. And Ors. on 15 September, 2001
JUDGMENT
A.B. Mukherjee (Retd.), J. (Chairperson)
1. This is an appeal preferred under Section 20(1) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993, hereinafter referred to as "the Act of 1993" and is directed against the judgment and order dated 16th June, 1999, passed by the learned Presiding Officer, Debts Recovery Tribunal, Calcutta in T.A. 151/97.
2. The case of the appellant Bank in short is that they had to file a title suit being 61/1983 in the Court of Assistant District Judge, Alipore for recovery of certain amount and for enforcement of mortgage created to secure the advances by the Bank, A preliminary decree was passed on 21st April, 1987 and a final decree was passed ex-parte on 18th June, 1991, with direction to sell the mortgaged property. In the absence of amicable payment, title execution being 1/1992 was started in the 3rd Court of Assistant District Judge at Alipore for sale of mortgaged property and realisation of Rs. 27,24,946.85. In the meantime, on 24th June, 1993, the Recovery of Debts Due to Banks and Financial Institutions Act of 1993 came into force and accordingly all proceedings involving recovery of dues by Banks and Financial Institutions stood transferred to the Debts Recovery Tribunal in terms of Section 31 of the Act of 1993. On 26th July, 1998, there was publication of notice at the instance of Debts Recovery Tribunal in local newspapers since the notice could not be served. On 16th June, 1999, execution application which was earlier transferred to the Debts Recovery Tribunal was heard ex-parte since the other side did not appear. On 16th June, 1999, the impugned order was passed by the Tribunal holding inter alia that it had no jurisdiction to proceed with transferred execution application. In doing so, the learned Presiding Officer relied on an unreported decision of Calcutta High Court in G.A. No. 1161 of 1997.
3. Being aggrieved by the said judgment and order the present appeal has been preferred by the appellant Bank alleging inter alia that the judgment and order of the learned Tribunal is not in accordance with law as laid down by the Supreme Court, that there are also decisions of Calcutta High Court to the effect that "proceeding" includes execution proceedings and is covered by Section 31 of the Act of 1993 making it liable for transfer with the introduction of the Act of 1993.
4. Since, the respondents did not contest, the appeal has been heard ex-parte. The learned Advocate appearing for the appellant has relied on a number of decisions of different Courts including that of the Apex Court and also different provisions of the Act of 1993 namely, Section 2(g), Sections 17, 18, Section 31 and also Section 34.
5. I have given my careful consideration to the submission of the learned Advocate and I have also gone through the decisions cited at the Bar. The conclusion which I am inclined to draw is that a "proceeding" also includes "execution proceedings" and as such Section 31 ot the Act of 1993 is attracted and accordingly pending execution proceedings dealing with recovery of dues by Banks and Financial Institutions in any Court are liable to be transferred to the Debts Recovery Tribunal since the Tribunal alone has the jurisdiction to continue such proceedings in accordance with the provisions of the Act of 1993 and no other Court of Authority has got jurisdiction to deal with the matter.
6. A scrutiny of Section 2(g) of the Act of 1993, itself will reveal that "debt" amongst other includes dues payable under a decree or order of any Civil Court. This was also the position before the amendment of the Act of 1993 though the scope has been made more wide since the amendment was made by introducing some other dues which did not attract the definition earlier. Section 17 of the Act of 1993 gives Debts Recovery Tribunal jurisdiction to decide applications by Banks and Financial Institutions for Recovery of Debts Due to such Banks and Institutions. Section 18 of the Act of 1993 excludes the jurisdiction of all other Courts or other authority in relation to matters specified in Section 17. It has, however, retained power of the Supreme Court and High Court exercising jurisdiction under Articles 226 and 227 of the Constitution. Section 31 of the Act of 1993 gives a mandatory direction to transfer every suit or other proceeding pending before any Court or Authority immediately before the date of establishment of a Tribunal under the Act of 1993 being a suit or proceeding the cause of action whereon it is based, is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, to the Debts Recovery Tribunal. It however excludes pending appeals. The amended Section 31 of the Act of 1993 makes it more clear by specifically stating that the decree or order passed by any Court before the commencement of the Act of 1993 which was not yet executed shall be transferred to the Tribunal appointed under the Act on an application made by the decree-holder. Sub-section (2) of the said section empowers the Tribunal to issue a certificate to recover the amount to the Recovery Officer and Sub-section (3) directs the Recovery Officer to proceed to recover the amount as if it was a certificate in respect of a debt recoverable under this Act. Section 34 of the Act of 1993 is an over-riding clause which gives this enactment an over-riding effect in case of any inconsistency contained in any other law for the time being in force.
7. Let us now turn to the decisions of different Courts as cited before me. The decision relied on by the learned Presiding Officer of Debts Recovery Tribunal is a Division Bench decision of the Calcutta High Court being G.A. No. 1161/1997 disposed of on 12th August, 1998. Their Lordships on a consideration of different provisions of the statute came to the conclusion that the execution case started on the basis of a decision of the original side of Calcutta High Court can be dealt with in the same Forum notwithstanding the passing of the Act of 1993 as execution proceeding does not come within the meaning of "other proceeding" as mentioned in Section 31 of the Act of 1993.
8. The learned Advocate for the appellant relied on adccision reported in AIR 1997 Delhi 239, where a Single Bench while considering the provisions of Section 31 of the Act of 1993 concluded that term proceeding is of very wide connotation so as to include execution proceeding as well. He also relied on a decision reported in 1999 Bankmann 638, where the question before a Single Bench of Andhra Pradesh High Court was whether an execution petition is liable to be transferred to the Debts Recovery Tribunal in terms of Section 31 of the Act of 1993. His Lordship on a consideration of different provisions of the Act concluded that all pending suits as also applications including execution application in respect of which Debts Recovery Tribunal has got jurisdiction shall stand transferred to the, Tribunal. He also relied on a decision reported in (1982) 1 SCC 525. While discussing the scope of Section 22 of the Specific Relief Act the Honourable Court came to the conclusion that the term "proceeding" is of wide connotation and means a prescribed course of action for enforcement a legal right. The conclusion drawn is that Section 22 of the Specific Relief Act will also include execution proceeding within the meaning of the word "proceeding" in Section 22. It is also stated that in the journey of a litigation execution is one of the stages. Lastly, the learned Advocate relied on a decision reported in (2000) 4 SCC 406, which is a Division Bench decision of the Supreme Court. The Honourable Judges discussed various aspects in relation to the Act of 1993 touching on the point of jurisdiction of Debts Recovery Tribunal. While deciding that the Tribunal alone has got the jurisdiction to deal with claims by Banks and Financial Institutions over any debts due to them, came to the conclusion that the Tribunal, excludes jurisdiction of Civil Court as also Company Court even and in the matter of priority of claims--the order passed by the Tribunal is to be given effect to keeping rest of the dues to be satisfied at later stage. The word "proceeding" has also been the subject matter of much scrutiny and the Honourable Judges while interpreting different sections of the Act of 1993 ultimately drew the conclusion that it includes execution proceeding pending before a Civil Court before the commencement of the Act. In course of discussion, Section 2(g) of the Act of 1993 has also been interpreted and emphasis was given on that part of the definition which speaks of liability under a decree. It has been categorically ruled that dues and proceedings which includes execution proceedings pending on the date of the Act stand transferred to the Tribunal and have to be disposed of in the same manner as an application under Section 19 of the Act of 1993.
9. In view of the above discussion, I come to the conclusion that the execution proceeding namely, No. 1 of 1992 which was pending before the 3rd Court of Assistant District Judge at Alipcre before the introduction of the Act of 1993 shall be deemed to have been transferred to the Debts Recovery Tribunal, Calcutta, in terms of Section 31 of the Act of 1993. In that view of the matter, the judgment and order of the learned Presiding Officer, Debts Recovery Tribunal, dated 16th June, 1999, in Case No. T. A. 151/97 cannot hold good and as such must be set aside. Hence it is ORDERED That the appeal stands allowed ex-parte and the judgment and order appealed against stand set aside. The Presiding Officer of the Debts Recovery Tribunal, in Calcutta shall issue a certificate under his signature on the basis of the final decree which was put to execution before the 3rd Court of Assistant District Judge at Alipore being Title Execution No. 1/1992 to the Recovery Officer for execution of the decretal dues and the Recovery Officer shall thereafter proceed to recover the amount as if, it was a certificate in respect of debt recoverable under the Act of 1993. Needless to mention that certificate shall include interest and costs of the suit as ordered by the trial Judge. In the facts and circumstances, there will not be any order as to costs, so far as the present appeal is concerned.
Let a copy of the judgment and order with L.C.R. be sent to the learned Presiding Officer, Debts Recovery Tribunal, Calcutta.