Debt Recovery Appellate Tribunal - Delhi
I.G. Telecom Ltd. And Ors. vs I.F.C.I. Ltd. And Anr. on 17 September, 2001
JUDGMENT
A.K. Srivastava, Chairman
1. This is an application under Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for dispensing with the pre-deposit of 75% of the decree of Rs. 5,49,85,937/-, the decreed amount as per the impugned order passed by DRT, Jaipur in O.A. No. 560/97. The grounds taken in this application are, inter alia, that prima facie the demand of the respondents in the concerned O. A. was barred by limitation and that liquidity position of the applicants is very bad and in case the applicants are directed to deposit 75% of the aforesaid amount, it would amount to undue hardship. Notice was issued to the respondents on this application for 6.8.2001. On that date, one Advocate appeared for the respondents and took time to file reply and today's date was given for hearing of this application.
2. From the side of the respondents, a reply has been filed in which it has been, inter alia.
contended that the appellants are defaulters; that the appellants have twisted facts in this appeal; that no issue of limitation was raised by the appellants in their written statement before the Tribunal below that the appellants themselves in their written statement have admitted that the O.A. before the Tribunal could be filed within three years from the date of demand notice (dated 21.11.1994 which appears from page 68 of the paper book); that the case of the respondents stands duly proved; that the impugned order is not erroneous; that it is denied that the final position of the appellants is bad in any manner; that it is also denied that the appellants are not in a position to pay the decreed amount; that the appellants have sufficient resources at their command to pay 75% of the decreed amount and that the ratio of the matter decided by Hon'ble the Supreme Court of India and quoted by the present appellants in their application is not applicable to the present case.
3. I have heard learned Counsels for the parties. The case of the respondents is that a term loan was sanctioned to the appellants and the same was availed by the appellants by 15.10.1994. It is a fact that the concerned O.A. was filed by the respondents in the Tribunal below on 16.10.1997. There is no dispute between the parties that the O.A. could have been filed only within three years from the date of cause of action. According to the appellant's Counsel the limitation for recovery, if any, from the appellants started running from 15.10.1994 and the O.A. could have been filed upto 14.10.1997 only and that any claim application filed thereafter was barred by limitation. The appellants in their written statement had taken a plea in para 3 that the O.A. filed by the respondents was barred by limitation. It is a fact that the appellants in their written statement filed before the Tribunal below did not come out with the facts as to how the claim of the respondents was time-barred but unfortunately I find that in the O.A. moved by the respondents before the Tribunal, no facts have been stated by the respondents regarding the limitation. A copy of the O.A. has been tendered by the appellants and on perusal of the same, I find that para 4 of the same relates to limitation and the same is extracted as under:
"Limitation That the applicants further declare that the application is within the limitation prescribed under Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993".
4. On perusal of the other paragraphs of the O.A. I find that there are no averments regarding the date of the cause of action. Learned Counsel for the respondent Corporation also could not find any averments in the O.A. from which the facts can be deduced as to on which date the cause of action of the O.A. started. He rather conceded that the facts relating to the limitation are missing in the O.A.
5. Though the appellants in their written statement took a plea that the claim of the respondent Corporations was time-barred and though the Tribunal below made a mention of that plea but I find that learned Presiding Officerof the Tribunal below in his final order made under Section 19(20) did not make any discussion as to how the O. A. was filed within time. The result is, neither the respondent Corporations nor the appellants gave any facts before the Tribunal below on the point of limitation nor the Tribunal below has come out with any finding as to how the claim application of the respondent Corporations was within time. It is the duty of a Court/Tribunal to examine that the suit/claim made before it is within time. Such duty becomes more onerous if a plea is taken by the defendants that the suit/claim is time-barred.
6. Learned Counsel for the appellants is very emphatic that the claim of the respondent Corporations was time-barred and no decree could have been passed against the appellants. Without facts on such plea, I also cannot form any prima facie view.
7. While deciding this application under Section 21, I do not propose to give any finding whether the claim of the respondent Corporation is time-barred or not but in view of the aforesaid discussion, it appears that the appellants would be greatly prejudiced if without getting decision on their plea of limitation, they are made to deposit 75% of the decreed amount as is mandated under Section 21 the Act, before their appeal can be heard on merits.
8. Accordingly, it would be proper and just to allow this application for waiver from depositing the required amount under Section 21 of the Act and, accordingly, I allow this application and completely waive the required deposit.
9. Application stands disposed of.