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2002 DIGILAW 374 (MAD)

Shri Thirumalai Fisheries Pvt. Ltd. and others v. Indian Bank, Triplicane Branch, Chennai.

2002-04-25

E.PADMANABHAN

body2002
ORDER: In this revision preferred under Article 227 of The Constitution of India, the petitioners seek to challenge the orders of the Debts Recovery Tribunal at Chennai dated 1.8.2001 and 8.2.2002 passed in O.A.No.1657 of 1998 and the petitioners seek to set aside the same. 2. The respondent-Bank, instituted O.A.No.1657 of 1998 on the file of the Debts Recovery Tribunal, Chennai, against the petitioners herein for a judgment and order against the petitioner for, (i) recovery of a sum of Rs.47,74,102.50 together with subsequent interest at 19.75% per annum with quarterly rest from the date of application till date of repayment, (ii) for recovery of the sum of Rs.56,315 together with interest at 19.75% per annum with quarterly rest and for sale of the hypothecated machinery. 3. The petitioners herein filed a reply statement and contested the application raising number of contentions including plea of bar of limitation, not liable to pay interest as claimed and the statement of accounts filed by the respondent-Bank is incorrect. The Debts Recovery Tribunal, by order dated 1.8.2001, while noting that the applicant before it is ready with the witness and that the defendant’s request for adjournment, directed payment of Rs.5 lakhs towards loan liability for availing further opportunity for cross-examination. The Debts Recovery Tribunal directed the petitioner to pay the said sum of Rs.5 lakhs as a condition for availing further opportunity and the petitioners’ were granted two months time from 1.8.2001 and such payment shall be without prejudice to the rights and contentions of either side. 4. Concedingly, the said condition has not been complied with. Thereafter, when the original application was taken up on 8.2.2002, it was brought to the notice of the Tribunal that the petitioners’ failed to comply with the condition imposed by order dated 1.8.2002 nor the petitioners’ have challenged the same by preferring an appeal. The Tribunal by the power conferred under Rule 12(5) of the Debts Recovery Tribunal Procedure Rules, directed the petitioners/defendants to pay Rs.5 lakhs within a period of four weeks from 8.2.2002. The said condition has been imposed since once again the petitioners were not ready. The Debts Recovery Tribunal passed a conditional order once again. Challenging the order dated 8.2.2002 as well as 1.8.2001, the present revision petition has been preferred. 5. The said condition has been imposed since once again the petitioners were not ready. The Debts Recovery Tribunal passed a conditional order once again. Challenging the order dated 8.2.2002 as well as 1.8.2001, the present revision petition has been preferred. 5. The learned counsel for the petitioner contended that there is no justification to impose an onerous condition of Rs.5 lakhs for an adjournment and assuming so, the condition that the petitioner will not be permitted to cross-examine the witnesses as per previous order dated 1.8.2001 is illegal and cannot be sustained at all. 6. Per contra, the learned counsel for the respondent pointed out that the petitioner had suffered an order as early as 1.8.2001 and had not challenged the said order, but had allowed the same to become final. After a lapse of six months, the second order has been passed directing the petitioners’ to pay the very same sum of Rs.5 lakhs as a condition for adjournment towards the loan liability within two months from the said date, besides making it clear that in the event of failure to comply with the condition, the petitioners shall not be allowed to cross-examine the witnesses. The learned counsel for the respondent contended that there is no illegality in the orders passed by the Debts Recovery Tribunal. According to the learned counsel for the respondent, the total amount due is more than Rs.47 lakhs as per admitted loan availed and only a sum of Rs.5 lakhs was ordered to be remitted/deposited and that too after a lapse of three years from the date of institution of the original application. Such a condition has been imposed as practically the advancement of loan had not been disputed, but it was admitted. The petitioner was also delaying the matter unduly. Having suffered an order on 1.8.2001, it is no longer open to the petitioner to challenge the order dated 8.2.2002. It is only a reiteration of the earlier condition imposed on 1.8.2001, which condition the petitioners have miserably failed to comply. 7. The contention that for non-payment of a portion of the claim there could be no direction to shut the petitioner from cross-examining the plaintiff’s witness. In the light of the provisions of the Debts Recovery Tribunal Act, such a direction could very well be issued. 7. The contention that for non-payment of a portion of the claim there could be no direction to shut the petitioner from cross-examining the plaintiff’s witness. In the light of the provisions of the Debts Recovery Tribunal Act, such a direction could very well be issued. It is a default on the part of the petitioners, which necessitated passing of the second order. Such a second order has been passed after a period of six months and that too when the earlier order had been allowed to become final without challenge. 8. Both the orders are not liable to be interfered as there is no illegality nor there is any error of jurisdiction or misdirection nor it could be contended that the direction to remit Rs.5 lakhs as against liability of Rs.48 lakhs and above as either arbitrary or excessive. The direction is to deposit just 1/10th of the claim. 9. Having allowed the order dated 1.8.2001 to become final and having suffered the said order, it is no longer open to the petitioner to challenge either the order dated 1.8.2001 or the order dated 8.2.2002. 10. The present revision has been preferred on 9.4.2002 (i.e.) after a lapse of eight months from the date of the first order dated 1.8.2001. The petitioner had not approached the Court within a reasonable time and had taken eight months to challenge the order. The petitioner is guilty of latches also and on this ground the revision could well be rejected. 11. On the facts of the case it is clear that there are no merits in the revision petition and the two orders passed by the Debts Recovery Tribunal is not liable to be interfered nor it could be contended that the condition is arbitrary or excessive or unwarranted on the facts of the case. 12. This Court sitting under Art.227, could exercise only the power of judicial review and it cannot act as an appellate authority. The jurisdiction of this Court to interfere with the orders of the Tribunal under Art.227 is by way of judicial review alone and it is not an appellate remedy. 13. 12. This Court sitting under Art.227, could exercise only the power of judicial review and it cannot act as an appellate authority. The jurisdiction of this Court to interfere with the orders of the Tribunal under Art.227 is by way of judicial review alone and it is not an appellate remedy. 13. In Estralla Rubber v. Dass Estate (P) Ltd., (2001)8 S.C.C. 97 , the Apex Court, while examining the scope and ambit of Art.227, held thus: "(6) The exercise of power under Art.227 of the Constitution of India involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to." 14. In Achutananda Baidya v. Prafullya Kumar Gayen, (1997)5 S.C.C. 76 the Apex Court held thus: "10. The power of superintendence of the High Court under Art. 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Art.227 is essentially to ensure that the courts and tribunals, inferior to High Court, have done what they were required to do. The power and duty of the High Court under Art.227 is essentially to ensure that the courts and tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Art.227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Art.227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse." 15. In Punjab National Bank v. O.C.Krishnan, (2001)6 S.C.C. 569 , the Apex Court held that provisions of Recovery of Debts due to Banks and Financial Institutions, the jurisdiction of this Court under Arts.226 and 227 of the Constitution has not been expressly ousted, yet when there is an alternate remedy, the High Court shall refrain from exercising its jurisdiction under Art.227. 16. At the hearing, this Court called upon Mr.Srinivasaraghavan, learned counsel for the petitioners as to whether at least at this stage the petitioner is willing to deposit Rs.5 lakhs despite the lapse of more than eight months so that the petitioner could be afforded an opportunity. The learned counsel represented that the petitioners are not prepared to comply with the condition even at this stage. The condition cannot be held to be arbitrary or unwarranted, but on the facts of the case, it has been rightly imposed as the petitioners are trying to delay and in the light of the fact that substantial amount is due, this Court declines to interfere with the order passed by the Debts Recovery Tribunal, Chennai. In the result, this Civil Revision Petition is dismissed, but without costs. Consequently, connected C.M.P. is also dismissed.