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2002 DIGILAW 132 (KAR)

PAUL D SOUZA v. CANARA BANK, BANGALORE

2002-02-15

R.GURURAJAN

body2002
R. GURURAJAN, J. ( 1 ) LA. No. I filed for additional grounds and additional prayer is allowed. Petitioner in this petition is challenging the order passed by the presiding Officer of Debt Recovery Tribunal, Bangalore, dated 2-12-1996 as also the order passed by the Registrar, Debt Recovery Tribunal at annexure-E, dated 31-7-1998. ( 2 ) FACTS in brief are as under: petitioners are the legal heirs of one Sri John D'souza, an Advocate of this Court. He died on 10-11-1994. A suit came to be filed for recovery of Rs. 3,53,29,005. 33 in the Court of the Civil Judge, Nanjangud, against mr. John D'souza and three others. During the pendency of the suit, Mr. John D'souza died. The Recovery of Debts Due to Banks and Financial institutions Act, 1993 came into force on 30-11-1994. When the Act came into force Mr. John D'souza was not alive. The death was reported by the Advocate representing him on 22-12-1994 by filing a memo before the learned Civil Judge. The Civil Court by an order dated 10-3-1995 sent the records to the Debt Recovery Tribunal in terms of the Act. The order sheet is at Annexure-A. Though respondents 1 to 4 made note of the death of defendant 8, no steps were taken to bring the legal representatives of the deceased on record. After transfer the case was registered as O. A. No. 1268 of 1995. Three separate applications were filed before the fifth respondent. I. A. No. I for setting aside abatement, I. A. No. II for bringing on record the L. Rs of the deceased and I. A. No. III for condonation of delay. According to the petition averments one more application ought to have been filed for condoning the delay in filing the application for setting aside the abatement. But in I. A. No. III both the prayers were made. There was a delay of 655 days. Petitioners have filed annexures-B, C, D applications and Annexures-E, F and G are the affidavits supporting the applications. Objections were filed in terms of annexures-H, J and K In addition, other objections were filed in annexures-L, M and N. Detailed written arguments were filed in terms of annexure-O. The Registrar has passed a common order as per Annexure-P. The Registrar has overruled the objections of the petitioners. This order is challenged in this case on various grounds. Objections were filed in terms of annexures-H, J and K In addition, other objections were filed in annexures-L, M and N. Detailed written arguments were filed in terms of annexure-O. The Registrar has passed a common order as per Annexure-P. The Registrar has overruled the objections of the petitioners. This order is challenged in this case on various grounds. ( 3 ) SUBSEQUENTLY, in terms of the additional prayer, petitioner has challenged the office order dated 2-12-1996 issued by the Presiding officer, Debt Recovery Tribunal in exercise of his power under Rule 23 of the Rules. The said order is challenged as being contrary to the provisions of the Act and also on the ground of want of jurisdiction. ( 4 ) RESPONDENTS have entered appearance and have opposed the prayer. They justify the order of the Tribunal. ( 5 ) HEARD the Counsels for the parties. Sri G. S. Vishweshwara, learned Counsel for the petitioner invites my attention to the provisions of the Act. He invites my attention to Rules 22 and 23 to contend that the Tribunal has no power or jurisdiction to issue this order. The Tribunal cannot abdicate or delegate its power to a Registrar. Counsel contends that this order requires interference by this Court. ( 6 ) PER contra, learned Counsel for the respondent states that the impugned order is in consonance with the power granted to the Tribunal. These orders have been issued for valid reasons and for early disposal. He says that there is absolutely no violation of Rule 23 as contended by the other side. ( 7 ) HEARD the learned Counsels on either side and perused the material on record. ( 8 ) THE object of the Recovery of Debts Due to Banks and Financial institutions Act, 1993 is to provide for the establishment of Tribunals for expeditious adjudication and Recovery of Debts Due to Banks and financial Institutions and for matters connected therewith and incidental thereto. Section 2 of the Act defines the term 'presiding Officer' meaning the Presiding Officer of the Debt Recovery Tribunal appointed under sub-section (1) of Section 4. The establishment of the Tribunal is found in Section 3 of the Act. The jurisdiction of the Tribunal is provided under section 17 of the Act. Section 19 provides for the procedure of the Tribunal. The establishment of the Tribunal is found in Section 3 of the Act. The jurisdiction of the Tribunal is provided under section 17 of the Act. Section 19 provides for the procedure of the Tribunal. Rules have been framed in terms of Section 36 of the Act known as debt Recovery Tribunal (Procedure) Rules, 1993. Rule 2 defines the presiding Officer meaning Presiding Officer of the Tribunal. Registrar meaning Registrar of the Tribunal, Rule 4 provides for procedure and rule 5 provides for presentation and scrutiny of applications. Rule 5 (5) provides for an appeal to the Presiding Officer against the order of the registrar. Rules 22 and 23 provide for powers and additional powers to the Registrar. Rules 22 and 23 read as under:"22. Powers and functions of the Registrar. (1) The Registrar shall have the custody of the records of the Tribunal and shall exercise such other functions as are assigned to him under these rules or by the Presiding Officer by a separate order in writing. (2) The official seal shall be kept in the custody of the Registrar. (3) Subject to any general or special direction by the Presiding officer the seal of the Tribunal shall not be affixed to any order, summons or other process save under the authority in writing from the Registrar. (4) The seal of the Tribunal shall not be affixed to any certified copy issued by the Tribunal save under the authority in writing of the Registrar. 23. Additional powers and duties of Registrar. In addition to the powers conferred elsewhere in these rules, the registrar shall have the following powers and duties subject to any general or special order of the Presiding Officer, namely. 23. Additional powers and duties of Registrar. In addition to the powers conferred elsewhere in these rules, the registrar shall have the following powers and duties subject to any general or special order of the Presiding Officer, namely. (i) to receive all applications and other documents including transferred applications; (ii) to decide all questions arising out of the scrutiny of the application before they are registered; (iii) to require any application presented to the Tribunal to be amended in accordance with the rules; (iv) subject to the directions of the Presiding Officer to fix a date of hearing of the applications or other proceedings and issue notices thereof; (v) direct any formal amendment of records; (vi) to order grant of copies of documents to parties to proceedings; (vii) to grant leave to inspect the record of Tribunal; (viii) dispose of all matters relating to the service of notices or other processes, applications for the issue of fresh notices or for extending the time for or ordering a particular method of service on a (defendant) including a substituted service by publication of the notice by way of advertisement in the newspapers; (ix) to requisition records from, the custody of any Court or other authority". ( 9 ) A combined reading of the Rules 22 and 23 would show that the powers of the Registrar are analogous to a Shirestedar in a Civil Court. However, Rule 23 provides for general order being issued by the Registrar. In the case on hand, the Presiding Officer has issued an office order dated 2-12-1996 granting powers to the Registrar to receive and dispose of the application with regard to impleading, substitution of legal representatives, return of documents, set aside any ex parte order, representation of mentally/unsound party in the proceedings and to appoint lawful guardians and all other interlocutory applications as and when the Presiding Officer directs the Registrar to do so. ( 10 ) FROM a reading of the Act and the Rules what is clear to me is that no judicial power as such can be exercised by the Registrar. He is only to act as an administrative head as he can receive, scrutinise, and place the applications before the Presiding Officer. A combined reading of Rules 22 and 23 would show as to what the Registrar is required to do in the matter of applications. He is only to act as an administrative head as he can receive, scrutinise, and place the applications before the Presiding Officer. A combined reading of Rules 22 and 23 would show as to what the Registrar is required to do in the matter of applications. In fact the Act itself provides for a procedure to be followed by the Tribunal. That being the position, the present office order providing the judicial powers to the Registrar, by way of delegation, in my view is contrary to Rules 22 and 23 of the Rules. Issue of Office order/general order has to be in consonance with the object of the Act and the Rules framed thereunder. The object of the Act is to provide an adjudicatory power to a judicial body constituted under the act. That power cannot be delegated by way of an office order as has been done in the case on hand. The Registrar under the Act and the rules has only the power to scrutinise the applications as I see from the rules. The present order is far in excess of the scrutiny powers. In these circumstances, the impugned office order has to be set aside on the facts of this case. It is also necessary to observe that judicial powers are sacrosanct and sacred in character. Such powers are granted by way of a statute. A statutory judicial power cannot be delegated particularly in the absence of any express power to do so. ( 11 ) THE contesting respondent-Bank has placed before me a judgment of a High Court in the case of Anjuman Islamia through Zahur Uddin v latafat Alt and Others, in support of its case. That was a case where the sanction was available under Section 3 of the Act. While considering the delegatory powers in terms of the sanction, the said judgment was rendered. The said judgment is not applicable to the facts of the case on hand. Similarly, the judgment of the Tripura High Court in the case of malabati Tea Estate v Sm. Budhni Munda and Others, is clearly distinguishable on facts. That was a case under the provisions of Section 20 of the Minimum Wages Act. ( 12 ) IN these circumstances the office order dated 2-12-1996 has to be quashed. Once the office order is quashed, the order passed by the Registrar has to follow suit. Budhni Munda and Others, is clearly distinguishable on facts. That was a case under the provisions of Section 20 of the Minimum Wages Act. ( 12 ) IN these circumstances the office order dated 2-12-1996 has to be quashed. Once the office order is quashed, the order passed by the Registrar has to follow suit. ( 13 ) BEFORE concluding, I must also notice another argument of the learned Counsel for the Bank. He states that quashing of the office order would result in reopening of the settled cases. He wa its this Court to issue a direction that the earlier proceedings are not to be reopened pursuant to the quashing of the office order. After hearing the learned counsel, I am of the view that the Counsel is right in his submission. The officer order is only challenged for the first time in this petition. Now that I have set aside the office order, it should not result in unsettling the settled cases. In this connection it is necessary to refer to a judgment of the Supreme Court in the case of Managing Director, electronics Corporation of India Limited, Hyderabad v B. Karunakar, in the said case, the Supreme Court has noticed that both administrative reality and public interests do not require that past cases are to be reopened. In the light of the dictum of the Supreme Court, I further direct that this decision is available prospectively and not to other settled cases, settled already by the Tribunal. ( 14 ) IN the result, this petition is allowed. The impugned order dated 31-7-1996 and the Office Order No. 12, dated 2-12-1996 are set aside. Matter is remitted back to the Tribunal for reconsideration of the interlocutory applications in accordance with law. ( 15 ) A declaration is issued that this judgment is to be made applicable prospectively, that is, from the date of the order of this Court. Parties to bear their respective costs. --- *** --- .