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2003 DIGILAW 2052 (ALL)

ABHAI RAM SAND v. DEBT RECOVERY TRIBUNAL

2003-09-08

MARKANDEY KATJU, UMESHWAR PANDEY

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( 1 ) THE petitioner has challenged the impugned order dated 24. 7. 2003 under Section 25/29 of the Recovery of Debts Due to banks and Financial Institutions Act, 1993, Annexure-13 to the writ petition and the auction sale which is going to be held on 11. 9. 2003 in pursuance of the order dated 24. 7. 2003. The petitioner has also prayed for a mandamus directing the respondent No. 1 to decide misc. Application No. 144 of 2003 filed by the petitioner before the respondent no. 1, Debt Recovery Tribunal, Allahalbad. ( 2 ) THE petitioner is the sole proprietor of Sri Ram Associates, Lalsur lane Gaighat, Varanasi. The petitioner No. 1 obtained cash credit facility of Rs 10 lacs vide sanction order dated 5. 11. 1998 and availed of the loan facility but did not repay the same. Petitioners 2 and 3 were guarantors. Hence, the respondent Syndicate Bank filed an original application under section 19 of the Recovery of Debt Due to Banks and Financial Institution act, 1963 which was registered as Original Application No. 280 of 2001 before the respondent No. 1, Admittedly the petitioners were served with the notices of the proceedings before the Debt recovery Tribunal, Allahabad. It is stated in the order dated 4. 10. 2002 of the Debt Recovery Tribunal that the defendant No. 3 filed his reply and defendant Nos. 2 and 4 took time to file reply but till date they neither filed reply nor participated in the proceedings. Hence, the Debt recovery Tribunal passed the order dated 4. 10. 2002 allowing the claim of the Bank for Rs. 14,99,447. 29 with interest at 18. 5% ( 3 ) IT appears that subsequently the petitioner filed an application which is registered as Misc. Application No. 144 of 2003 for recall of the order dated 4,10. 2002. True copy of the said application dated 21. 08. 2003 is annexure -15 to the writ petition. ( 4 ) THE prayer in this writ petition is that the impugned recovery should remain stayed until the decision of the Misc. Application No. 144 of 2003. We are not inclined to issue any such direction as prayed for by the learned Counsel for the petitioner. 08. 2003 is annexure -15 to the writ petition. ( 4 ) THE prayer in this writ petition is that the impugned recovery should remain stayed until the decision of the Misc. Application No. 144 of 2003. We are not inclined to issue any such direction as prayed for by the learned Counsel for the petitioner. In fact an unfortunate and objectionable practice has started before the Debt Recovery Tribunal of allowing the Tribunal to decree the claim ex-parte and thereafter, filing a restoration application and then a writ petition to get an order of stay of the recovery until disposal of the restoration application. This has been happening in a large number of case and similar writ petitions for similar direction are being filed in a large number of cases before us placing reliance on the Division Bench decision of this Court in Civil Misc. Writ petition No. 35757 of 2001, M/s. Ratan Chand Deep Chand v. Presiding Officer, debt Recovery Tribunal, decided on 8. 11. 2001. ( 5 ) WE have carefully perused the judgment of this Court dated 8. 11. 2001 inm/s. Ratan Chand Deep Chands case and we are of the opinion that it does not lay down any precedent. It may be mentioned that a mere direction of the Court without laying down any principle of law is not a precedent and hence not binding on other Courts, vide indian Council of Agricultural Research v. Raja Balwant Singh College, 2003 (1) LBESR 18 (All) ; 2003 (1) ESC 424; Delhi Administration v. Manohar Lal, AIR 2002 SC 3088 ; Municipal Committee v. Hazara Singh, air 1975 SC 1087 , etc. ( 6 ) THERE is no ratio in the aforesaid judgment in M/s Ratan Chand deep Chands case (supra) and hence we are not bound to pass a similar order as passed in the aforesaid/case. In fact in view of the deplorable practice which is going on of allowing the Tribunal to decree the claim ex-parte and then a file restoration application and then file a writ petition to get a stay order till the disposal of the restoration application, we are of the opinion that this practice must be stopped otherwise all recoveries will be stayed for long periods in this manner. Hence, we are not inclined to issue a directive similar to the one issued by the Division bench in Ratan Chands case (supra ). It is always open to the petitioner to challenge the order dated 4. 10. 2002 Annexure -11 to the writ petition by way of filing an appeal before the Debt Recovery Appellate Tribunal. ( 7 ) THE petition is dismissed. Petition dismissed. .