Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 600 (CAL)

Jaswant Singh v. Punjab National Bank

2005-09-06

SUBHRO KAMAL MUKHERJEE

body2005
Judgment :- (1.) This is an application under Article 227 of the Constitution of India against order dated September 1, 2005 passed by the learned Chairperson, Debts Recovery Appellate Tribunal, Kolkata in Appeal No. 32 of 2005. (2.) The learned Chairman, by the order impugned, declined to grant stay of the operation of the order appealed against before the said Appellate Tribunal. (3.) By Order No. 71 dated August 22, 2005 the learned Presiding Officer, Debts Recovery Appellate Tribunal, Kolkata-I, infer alia, held that Mohan Ram Associates, the certificate debtor No. 2, was entitled to deposit the certificate amount and to redeem the property mortgaged by the certificate debtor No. 1, Electrical Industries Corporation, to the certificate holder, Punjab National Bank. The said order recorded that the said certificate debtor has already deposited Rs. 2.45 crore on July 1, 2004 with the bank and, therefore, liberty was granted to the bank to appropriate the certificate amount due as on June 30, 2004 out of the said Rs. 2.45 crore; if there be any balance, that should be returned to the certificate debtor No. 2. The bank was directed to deliver the title deeds of the properties mortgaged to the certificate debtor No. 2 and to issue no due certificate indicating that title deeds have been delivered to the certificate debtor No. 2. The bank was, also, directed to return the entire amount deposited by the certificate debtor No. 14, Jaswant Singh, with interest, if any, from the date of deposit till the date of return. (4.) After the pronouncement of the said Order No. 71 dated August 22, 2005, the certificate debtor No. 14 submitted before the learned Presiding Officer that he would prefer an appeal against such order and as such prayed for stay of the operation of the said order. The prayer was strongly opposed by certificate debtor Nos. 1 and 2. (5.) By order No. 72 dated August 22, 2005 the learned Presiding Officer, inter alia, stayed the operation of the Order No. 71 dated August 22, 2005 for two weeks. The learned Presiding Officer indicated in the said order that such order of stay was passed for ends of justice to enable the aggrieved party to avail of the right to appeal before the Appellate Tribunal. The learned Presiding Officer indicated in the said order that such order of stay was passed for ends of justice to enable the aggrieved party to avail of the right to appeal before the Appellate Tribunal. Simultaneously, the learned Presiding Officer, inter alia, clarified that after redemption of the mortgaged properties, the learned receiver should deliver the possession of the properties to the said certificate debtor No. 2 and, thereafter, the learned receiver should stand discharged. (6.) Being aggrieved by, and dissatisfied with, the Order No. 71 dated August 22, 2005 passed by the learned Presiding Officer, Debts Recovery Appellate Tribunal, Kolkata-I in R.P. No. 5 of 2004 the present petitioner preferred an appeal before the Appellate Tribunal and the appeal has been registered as Appeal No. 32 of 2005. The said appeal has been filed under section 20 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. (7.) The appellant filed an application for stay of the operation of the said Order No. 71 dated August 22, 2005 in connection with the aforesaid appeal. (8.) The learned Chairperson in the order impugned, inter alia, recorded that the bank and the certificate debtor No. 2 were present before the said Tribunal and the other respondents have not yet been served. The appellant was directed to serve notices upon non-appearing respondent Nos. 3 and 14 and to file affidavit-of-service. The matter was directed to go out of the list for the present with liberty to mention upon notice to other side. The learned Chairperson refused the prayer for interim stay at that stage. (9.) Being aggrieved by the said order dated September 1, 2005 passed by the learned Chairperson, Debts Recovery Appellate Tribunal, Kolkata in Appeal No. 32 of 2005, the appellant has come up with this application under Article 227 of the Constitution of India. (10) (10.) Mr. Sakti Nath Mukherjee, learned senior advocate, appearing in support of this application, submits that the learned Chairperson of the Appellate Tribunal ought to have granted stay of the operation of the order impugned before him till the disposal of the application for stay. Mr. Mukherjee submits that the Appellate Tribunal refused the prayer for interim stay at that stage, but without assigning any reason. Mr. Mr. Mukherjee submits that the Appellate Tribunal refused the prayer for interim stay at that stage, but without assigning any reason. Mr. Mukherjee refers to the decision in the case of Travancore Rayons Ltd. vs. Union of India and Ors., reported in AIR 1971 SC 862 and submits that the order impugned is bad in law for nondisclosure of reasons in support of the order. (11.) Mr. Ajit Kumar Panja, learned senior advocate, appearing for the opposite party No. 1, takes me through various orders passed by the Tribunals below from time to time and submits that, in the facts and circumstances of the case, the learned Chairman of the Appellate Tribunal was justified in refusing to grant stay at that stage. Mr. Panja cites the decision in the case of Surya Dev Rai vs. Ram Chander Rai and Ors., reported in 2003(6) SCC 675 to indicate that the petitioner has failed to make out any ground of interference under Article 227 of the Constitution of India. (12.) Mr. Soumen Sen, learned advocate, appears for the bank and submits that the Appellate Tribunal was justified in refusing stay in favour of the appellant. (13.) I have considered the rival contentions of the parties. It appears to me that the present appellant/petitioner, the certificate debtor No. 2, that is, Mohan Ram Associates, and the bank are only interested parties at this stage. By the order impugned before the Appellate Tribunal the learned Presiding Officer rejected the application filed by the certificate debtor No. 14/petitioner and the bank was directed to appropriate the certificate amount due as on June 30, 2004 out of the fund deposited by the certificate debtor No. 2 with the bank on July 1, 2004 and to return the balance, if any, to the said certificate debtor No. 2. (14.) Therefore, the learned Chairperson was not right in directing service of notice of application for stay on non-appearing respondents in the appeal. (15.) The learned Chairman declined to grant stay. It was admitted before me that the prayer for interim stay by the petitioner was hotly contested by the respondent Nos. 1 and 2. The learned Chairman simply recorded that the prayer for interim stay was refused at that stage. No reason has been assigned in the order impugned as to why he thought the prayer for stay should be rejected. 1 and 2. The learned Chairman simply recorded that the prayer for interim stay was refused at that stage. No reason has been assigned in the order impugned as to why he thought the prayer for stay should be rejected. (16.) As has been observed by the Supreme Court of India in the case of Travancore Rayons Ltd. (supra) that even the authorities performing executive or administrative functions should disclose reasons in support of the orders on two grounds, that is, that the party aggrieved before the superior forum has the opportunity to demonstrate that the reasons, which persuaded the authority to reject his case, were erroneous and, further, that the obligation to record reasons operates as a deterrent against possible arbitrary action by such authorities invested with the judicial powers. (17.) In this case, the Presiding Officer after pronouncement of the Order No. 71 dated August 22, 2005 granted stay of the operation of the order on the prayer of the certificate debtor No. 14 after a contested hearing inasmuch as it clearly appears from the Order No. 72 dated August 22, 2005 that after pronouncement of the said Order No. 71 the learned advocate appearing for the certificate debtor No. 14 prayed for stay of the operation of the order to enable her client to prefer an appeal and the learned advocate appearing for the certificate debtor Nos. 1 and 2 opposed such prayer for stay of the operation of the order. (18.) Therefore, when an appeal has been filed against Order No. 71 dated August 22, 2005 and an application for stay of the operation of the order appealed against is, also, filed before the Appellate Tribunal, the Appellate Tribunal, during the pendency of the application for stay, ought to have stayed the operation of the order impugned. (19.) In this connection, it is profitable to refer the decision of the Supreme Court of India in Mool Chand Yadav and Anr. vs. Raza Buland Sugar Company Limited, Rampur and Ors., reported in 1982(3) SCC 484 where the Supreme Court of India observes that judicial approach requires that during the pendency of the appeal, the operation of an order having serious civil consequences must be suspended. vs. Raza Buland Sugar Company Limited, Rampur and Ors., reported in 1982(3) SCC 484 where the Supreme Court of India observes that judicial approach requires that during the pendency of the appeal, the operation of an order having serious civil consequences must be suspended. (20.) In my view unless, during the pendency of the said application for stay before the Appellate Tribunal, an ad interim order of stay of the operation of the order impugned before the said Appellate Tribunal is passed the situation may become irreversible by the time the application for stay is decided by the Appellate Tribunal and would preclude fair and just decision of the matter. (21.) Therefore, the order impugned passed by the Appellate Tribunal is modified. The direction for service of notice of application for stay on the non-appearing respondents is set aside. The Appellate Tribunal is requested to dispose of the application for stay as expeditiously as possible preferably by November 30, 2005 and, further, requested not to grant any unnecessary adjournment to either of the parties. (22.) Till November 30, 2005 or till the disposal of the application for stay, whichever is earlier, the operation of the Order No. 71 dated August 22, 2005 passed by the learned Presiding Officer, Debts Recovery Appellate Tribunal, Kolkata-I in R. P. No. 5 of 2004 shall remain stayed. (23.) By way of abundant caution, I make it clear that I have no occasion to go into the merits of the claim and the counter-claim of the parties involved in the application for stay or in the appeal. All points are kept open. (24.) The application under Article 227 of the Constitution of India is, thus, disposed of with the aforementioned directions. (25.) direct the parties to bear their respective costs in this application. (26.) Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned advocates for the parties on usual undertakings. Later: (27.) After the order is pronounced in Court, Mr. Ajit Kumar Panja, learned senior advocate, appearing for the opposite party No. 2, prays for stay of the operation of this order. (28.) Have considered the prayer. Regret that I cannot accede to such prayer. Application disposed of with direction.