Karnataka High Court
M/S Computek India Ltd vs State Bank Of India on 18 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.3572 OF 2016 (GM-DRT)
BETWEEN:
1. M/S COMPUTEK INDIA LTD
NO. 29, K.H.ROAD,
NANJAPPA MANSION
BANGALORE - 560 027.
REPRESENTED BY ITS
MANAGING DIRECTOR
MR. SHASHANK M SHAH.
2. SHASHANK M SHAH
S/O LATE M.G.SHAH
AGE 59 YEARS,
NO. 29, K.H.ROAD,
NANJAPPA MANSION
BANGALORE - 560 027.
3. MR. SUNIL M SHAH
S/O LATE M.G.SHAH
AGE 53 YEARS,
NO. 29, K.H.ROAD,
NANJAPPA MANSION
BANGALORE - 560 027.
4. MS. SHUBHANGI SHAH
D/O D.J.JOSHI,
AGE 57 YEARS,
NO. 29, K.H.ROAD,
NANJAPPA MANSION
BANGALORE - 560 027.
2
5. MS. NIKITA SHAH
D/O LATE BHARAT M SHAH,
AGE 51 YEARS,
NO. 29, K.H.ROAD,
NANJAPPA MANSION
BANGALORE - 560 027.
... PETITIONERS
(BY SRI. SHEKHAR SHETTY FOR
SRI. RANGARAMU .V, ADVOCATES)
AND:
1. STATE BANK OF INDIA
INDUSTRIAL FINANCE BRANCH
RESIDENCY ROAD,
BANGALORE
REP. BY ITS BRANCH MANAGER.
2. KOTAK MAHINDRA BANK LTD.,
1ST FLOOR, CEEBROS CENTRE
NO. 39, MONTIETH ROAD,
EGMORE CHENNAI - 600 008
REP. BY ITS BRANCH MANAGER.
... RESPONDENTS
(BY SRI. B.R. VISWANATH &
SRI. B.N. TULSIKUMAR, ADVOCATES FOR R-1;
SMT. GAYATHRI BALU, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER MADE ON I.A. No.4850/2015 in O.A. NO.525/2002
ORDER DATED 27.11.2015 BY THE DRT, BANGALORE VIDE
ANNEXURE-A AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In the instant petition, petitioners have prayed for the following reliefs:-
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"1. To writ certiorari or any other appropriate set- aside the order made on I.A. No.4950/2015 in O.A. NO.525/2002 order dated 27.11.2015 by the DRT, Bangalore copy at Annexure-A
2. Set-aside the order passed by DRT, Bangalore on 04.01.2016 in the order sheet copy of Annexure-G
3. Allow the writ petition with cost
4. And pass such other orders as this Hon'ble Court deems fits in the circumstance of the case in the interest of justice and equity."
2. Petitioner No.1-company engaged in the activities of computer hardware, selling including installation, imparting training to user and handling maintenance contract, development of software and software products. Petitioner No.1-company availed the financial facilities with respondent No.1-Bank on 27.10.1995, which was renewed on 30.03.1997 like, cash credit (MT) Rs.75.00 lakhs, letter of credit Rs.20.00 lakhs and bank guarantee Rs.10.00 lakhs.
3. Later on, the aforesaid transaction was transferred to respondent No.2-Bank. In the meanwhile, petitioners have failed to repay the loan and interest amount, which has resulted in 4 filing of O.A.No.525/2017 before the Debts Recovery Tribunal (for short 'the DRT') at Bengaluru by respondent No.1. Before the DRT, the grievance of respondent No.1 relates to recovery of outstanding amount for a sum of Rs.1,03,66,712.53/- as on 17.04.2002 and accrued interest component from 18.04.2002 to 21.07.2002 for a sum of Rs.3,74,527.90/- total sum of Rs.1,07,41,240.43/-.
4. The petitioners submitted three IAs in O.A. No.525/2002 before the DRT. They were numbered as IA Nos.4849/2015, 4850/2015 and 4851/2015 while invoking Section 22 (h) of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as 'the Act' for short).
5. On 27.11.2015, the DRT, Bengaluru allowed IA Nos.4849/2015 and 4851/2015 while dismissing IA No.4850/2015. IA No.4850/2015 relates to production of Special Cell Report submitted by one Sri. Venkatachenalu, Assistant Manager (Consultancy Services LHO) of State Bank of India in August/September, 1999 to SBI, LHO, Bangalore and also Credit Information Report dated 04.03.1998 issued by State Bank of India, Peenya Industrial Estate Branch, Bengaluru to KSFC. 5
6. Feeling aggrieved by the order dated 27.11.2015 passed by the DRT, Bengaluru in IA No.4850/2015, petitioners have presented this petition.
7. Learned counsel for the petitioners vehemently contended that writ is maintainable under Section 20 read with Section 22 of the Act. Section 20 of the Act deals with the appeal to the Appellate Tribunal. Petitioners could avail the remedy of appeal only against the order passed on merit and not insofar as rejection of IA. The procedure stated in Section 22 of the Act if it is taken into consideration, in that event, writ is maintainable. He cited decision of this Court reported in ILR 1982 KAR 152.
8. Heard the learned counsel for the petitioners.
9. Sections 20 and 22 of the Act, 1993 reads as under:-
"20. Appeal to the Appellate Tribunal.--(1) Save as provided in subsection (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.6
(2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.
(3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty- five days if it is satisfied that there was sufficient cause for not filing it within that period.
(4) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being 21 heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Tribunal.
(6) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be 7 made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.
22. Procedure and Powers of the Tribunal and the Appellate Tribunal.-- (1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings.
(2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents; 8
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it ex parte;
(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(h) any other matter which may be
prescribed.
(3) Any proceeding before the Tribunal or the
Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860) and the Tribunal or the Appellate Tribunal shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)."
10. Section 20 of the Act relates to appeal to the Appellate Tribunal. Reading of Section 20 of the Act does not specify that appeal is entertainable only against the final order or order passed on the merit,.
11. Further, Section 22 of the Act deals with the procedure and powers of the Appellate Tribunal. Sub-section 2 of Section 22 of the Act states that while discharging the 9 functions, the Tribunal and Appellate Tribunal to follow power vested in the Civil Court under the Code of Civil Procedure since Section 20 of the Act is not restricted to appeal only against order passed on merit.
12. On the contrary, any person aggrieved by an order made or deemed to have been made by a Tribunal under the Act may prefer an appeal to the Appellate Tribunal having jurisdiction in the matter.
13. In view of the language under Sub-Section 1 of Section 20 of the Act, the contention of the petitioners that appeal is maintainable only against the final order/order on merit is hereby rejected. Section 22 of the Act does not empower the petitioners to prefer the writ petition. The cited decision is in respect of Civil Revision Petition with reference to Order 11 Rule 14 of CPC. The cited decision has no application to the present petition. In the present petition, the relevant provision is relating to Act, 1993. Ofcourse, the procedure is required to be followed for the purpose of functioning of Tribunal and Appellate Tribunal with reference to CPC but that does not mean that writ 10 petition is maintainable against the rejection of IA filed before the DRT.
14. The Apex Court in the cases of Industrial Credit and Investment Corporation of India Ltd., Vs. Grapco Industries reported in (1999) 4 SCC 710, Allahabad Bank Vs. Radhakrishna Maity and others reported in (1999) 6 SCC 755 and Mardia Chemicals Limited Vs. Union of India reported in (2004) 4 SCC 311 held that remedy available under the Act 1993 is to be invoked. Further in the latest decision of the Apex Court in the case of Assistant Commissioner (CT) LTU, Kakinada and ors. Vs. M/S Glaxo Smith Kline Consumer Health Care Ltd., in Civil Appeal No.2413/2020 (Arising out of SLP (C) No.12892/2019) reported in 2020 SCC Online SC 440 elaborately discussed alternative remedy issue and held that when a party/company has a statutory remedy under statute, first he/it has to exhaust the remedy of appeal.
In view of these facts and circumstances, petitioners have not made out a case. Accordingly, the writ petition stands dismissed reserving liberty to the petitioners to approach the 11 appropriate forum. Time spent by the petitioners in the present petition shall be taken into consideration for the purpose of condonation of delay in entertaining appeal by the jurisdictional forum.
Sd/-
JUDGE MBM