Document Fragment View

Matching Fragments

19. So far as the first point is concerned, the same is interesting one. In the legal parlance there are two very common words i.e. 'closed case' and "open case'. One has to make threadbare analysis of reasoning to come to a definite conclusion about the same. By the passage of time the Act was amended substantially. This case was initially filed in a Civil Court as a mortgage suit. but not as a money claim simpliciter. Therefore, a preliminary decree was passed on that score. The suit was transferred and a final decree was passed by the Tribunal long before amendment of the Act in 2000 incorporating mortgage as a "debt" under Section 2(o) of the Act. Neither D.R.T. nor D.R.A.T. applied their minds on that score. As a result whereof pertinent questions whether the decree is a nullity and whether the amendment of the Act has any retroactive operation or not, were unanswered. It touches the root of the jurisdiction of the Tribunal. Element of nullity in passing final decree by the Tribunal cannot be eliminated without proper examination. Therefore, apparently it is an 'open case'. Certificates either original or amended, have no face value without legally sustainable final order at the relevant point of time. Question of nullity can be raised at any stage of the proceedings including execution. At no point of time prayers of the plaint were considered. A mortgage decree under Order 34, Rule 4 in Form 5A of the Appendix "D" to the First Schedule of the Code of Civil Procedure for a sum of Rs. 90,62,601.19 paisa with interest was claimed by the Bank in the suit. A final mortgage decree was claimed in terms of such prayer thereof. Money decree for the similar sum was also claimed in respect of such sum. In the case of money claim simpliciter only one decree is required to get by the appropriale party. But in the mortgage suit under Order 34 of the Code of Civil Procedure one has to get two decrees i.e. preliminary and final decrees in respect of foreclosure, sale and redemption. Admittedly two decrees were passed herein i.e. preliminary and final by the Civil Court and the Tribunal respectively in respect of sale. The Tribunal, on 20th February, 1997, dismissed the application alike under Order 9, Rule 13 of the Code of Civil Procedure made for recalling the preliminary decree obtained by the Bank ex parte from the Civil Court and at the same breath passed final decree. The defendants' ease was, badly handled and the Bank took the advantage of the situation. But Bank failed to discharge their first duty towards the Tribunal in reminding the inherent and incurable defect of the decree and allowed perpetuity of nullity to continue till this day. On the other hand the Tribunal jumped upon the conclusion to pass final decree due to non-appearance of the petitioners herein by overlooking the relevant point of law. Even assuming the defect is curable by the Tribunal by converting the mortgage decree into money decree it could have been clarified by it instead of passing final decree and directed to issue certificate on the basis of the decree of the Civil Court itself. But neither Tribunal chose to do so nor Bank invited to do so. There- fore, when the very existence of the second decree i.e. final decree passed by the Tribunal dated 20th February, 1997 is under challenge it is far to say about valid existence of certificates out of such decree. The only alternative could have been open for the Tribunal to recall the preliminary decree passed by the Civil Court and pass a fresh decree by treating the Suit as money claim simpliciter. But in absence of the petitioners, Bank tried to take double benefit, one arising out of mortgage and another out of money to bargain the petitioners/borrowers. It arose at the time of hearing of the application before the Tribunal under Sections 26 and 27 of the Act read with Rule 18 of the relevant Rules that no title deed in respect of the mortgage decree was available in the record or with the Bank. Leaving aside the question of disputed title and full right of the borrower/s vis-a-vis partial right, rights of the majors or minors, the question remains why such title deed was not available with the Tribunal, What step the Tribunal took about the same? Bank stated that the same is lying with the Civil Court. Therefore, how they can claim any right in respect of such property? Can it not be said that the Suit was transferred to the Tribunal as a money claim simpliciter as per the then prevailing law and the Bank was aware of the situation but suppressed the material facts? Even in that way the second decree i.e. final decree can be said to be nullity? The D.R.A.T. completely misdirected itself and only banged upon one question whether in spite of the Bank's objection, Certificated amount can be altered or reduced by the D.R.T. or not being forgetful about necessity to judge whether any valid certificate arising out of valid decree exists or not and thereby reached to a perverse finding. The D.R.A.T. is the last fact finding Court. It could have discharged its function as original Tribunal but it did not choose to do so and thereby created vacuum. On the other hand, at least in this case, the D.R.T. tried to resolve the dispute but I should not say the same is also free from ambiguity. Therefore, by a comparative study of effort to resolve the dispute by the D.R.T. and D.R.A.T. I would prefer that the matter should be remitted back to D.R.T. to resolve the dispute once for all within the prescribed time to be given by this Court. The main ambiguity is in respect of compromise and settlement on the part of the Bank. Upon going through the R.B.I. Guidelines as well as NPA Management Policy 2001 of the Bank I have no manner of doubt that principally Bank cannot refuse any compromise and settlement. But here the question is whether Bank arrived at a compromised figure before DRT or not.

(i) Whether the suit is primarily a mortgage suit or a money claim simpliciter?
(ii) If it is a money claim simpliciter, can there be any provision of law to pass two decrees or final orders i.e. preliminary decree and final decree/order by the Civil Court and D.R.T. respectively?
(iii) If not, can it be said that the decrees particularly second/final decree or order dated 20th February 1997 is sustainable ?
(iv) Whether D.R.T. had jurisdiction to pass the final decree of mortgage on 20th February 1997 when "mortgage" as "debt" was only included in the Act by way of amendment with effect from 17th January, 2000?
(v) Whether any of the certificates arising out of decree or final order dated 20th February 1997 has any face valise?
(vi) In view of the fact of non-availability of title deed either with the Tribunal or with the Bank but with the Civil Court as yet, can an inference be drawn that the suit was physically transferred to the Tribunal as a money claim simpliciter leaving aside the cause of mortgage ?
(vii) If the answer in terms of Clause (VI) is affirmative can a certificate be drawn in terms of preliminary decree of the Civil Court dated 26th November, 1990 by treating the same as sole money decree or order simpliciter after recalling and/or setting aside the second/final, decree or order dated 20th February 1997?
(viii) Even if it is established that the suit/proceeding is money claim simpliciter can the so-called second or final decree dated 20th February, 1997 be sustained ?
(ix) In any of the aforesaid circumstances, only modification or amendment of any certificate will suffice the cause or the same will be withdrawn and/or cancelled ?
(x) To avoid complicated situation is it not proper to recall and/or set aside both the decrees/final order and pass a fresh decree or order ?
(xi) Whether any mediation is possible without recalling and/or setting aside any of the decrees and/or final order ?