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2000 DIGILAW 78 (CAL)

Rabindra Chamaria v. State Bank of India

2000-02-16

BHASKAR BHATTACHARYA

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JUDGMENT Re: CO No. 2693 of 1999. Bhaskar Bhattacharya, J. 1. Only question that arises for consideration in this application under Article 227 of the Constitution of India is whether an application under section 19 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 ("Act") is maintainable for execution of a decree passed by a Civil Court prior to the coming into operation of the Act. 2. In the instant case there is no dispute that the State Bank of India obtained a decree against the defendants in the Original Side of this court and such decree was passed on May 31, 1991 prior to the coming into operation of the Act. 3. Although the said decree was passed in the year 1991, the State Bank authority instead of starting any execution case for execution of the said decree, came up with an application under section 19 of the Act before the Debts Recovery Tribunal thereby giving rise to O.A. No. 45 of 1997. 4. In the said proceeding, the present petitioner after entering appearance took a preliminary point disputing the jurisdiction of the Tribunal to entertain such application for execution of a decree passed by a Civil Court prior to the coming into operation of the Act. 5. By the order impugned herein, the Tribunal below turned down the objection of the petitioner and held that such proceeding is maintainable. 6. Being dissatisfied, the defendant No.4 has come up in revision under Article 227 of the Constitution of India. 7. It has been held by a Division Bench of this court on August 12, 1998 in G.A. No. 1161 of 1997 that if a decree was passed by a Civil Court prior to the coming into operation of the Act, the power of the said court to execute such decree is unaffected by the provision contained in the Act. Relying upon the aforesaid decision, the learned advocate appearing on behalf of the petitioner has contended that the decree passed by the Original Side of this court can only be executed by that court and for execution of such a decree, the petitioner cannot take recourse to section 19 of the Act. 8. Mr. Relying upon the aforesaid decision, the learned advocate appearing on behalf of the petitioner has contended that the decree passed by the Original Side of this court can only be executed by that court and for execution of such a decree, the petitioner cannot take recourse to section 19 of the Act. 8. Mr. Sen, the learned counsel appearing on behalf of the decree holder/Bank by placing reliance upon various decisions of Apex court tried to convince this court that "Debt" as mentioned in section 2(g) of the Act includes a decree passed by a Civil Court and as such the said Division Bench decision is no longer a good law. It may be mentioned here that the said Division Bench while arriving at such conclusion held that "other proceedings" mentioned in section 31 of the Act does not include execution proceeding and as such a pending execution case cannot be transferred to the Tribunal by virtue of section 31 of the Act. 9. The point raised by Mr. Sen has now become academic in view of promulgation of an Ordinance by the President of India on January 17, 2000 being the Recovery of Debts Due to Bank and Financial Institution (Amendment) Ordinance, 2000 by dint of which a new section viz. section 31A of the Act has been inserted. The said section 31A is produced below: "1) Where a decree or order has been passed by any court before the commencement of the Recovery of Debts Due to Banks and Financial Institutions (Amendment) Ordinance, 2000 and has not yet been executed, then, the decree holder may apply to the Tribunal to pass an order for recovery of the amount. 2) On receipt of an application under sub-section (1), the Tribunal may issue a certificate of recovery to a Recovery Officer. 3) On receipt of a certificate under sub-section (2), the Recovery Officer shall proceed to recover the amount as if it was a certificate in respect of a debt recoverable under this Act." 10. 2) On receipt of an application under sub-section (1), the Tribunal may issue a certificate of recovery to a Recovery Officer. 3) On receipt of a certificate under sub-section (2), the Recovery Officer shall proceed to recover the amount as if it was a certificate in respect of a debt recoverable under this Act." 10. In my view, the incorporation of the aforesaid section 31A by the Ordinance leaves no scope of an argument that the Tribunal is entitled to entertain an application under section 19 of the Act for the purpose of enforcing an earlier decree passed by a Civil Court and thus, for the purpose of execution of any such decree, a decree holder is now required to follow the provision contained in section 31A of the Act as incorporated by Ordinance. 11. Therefore, the order impugned, taking a view that an application under section 19 of the Act is maintainable for execution of a decree passed by a Civil Court, is not at all tenable and is liable to be set aside. The Ordinance itself has answered the question raised in this application in negative. The decree holder is required to follow the procedure provided in section 31A of the Act for execution of the decree. 12. The order impugned is, therefore, set aside with the observation that the remedy of the Bank lies by filing application under section 31A of the Act as incorporated by the aforesaid Ordinance. 13. In view of the disposal of the main revisional application, the other application filed by the Bank for vacating the interim order has become infructuous and is disposed of accordingly. 14. In the facts and circumstances there will be however no order as to costs. Appeal disposed of.