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2005 DIGILAW 737 (GAU)

Bank of Baroda v. Shanti Conductors Pvt. Ltd.

2005-09-30

I.A.ANSARI

body2005
ORDER I.A. Ansari, J. 1. Heard Mr. P.C. Deka, learned Senior counsel, assisted by Mr. N. Deka, learned Counsel for the petitioner, and Mr. K.N. Choudhury, learned Senior Counsel, assisted by Mr. A. Parvez, learned Counsel, appearing on behalf of the respondent Nos. 1 to 4. 2. On 24-12-87, the respondent No. 1 was granted by the writ petitioner a Term Loan up to the limit of Rs. 14,70,000/-, Cash Credit (Hypothecation) up to a limit of Rs. 18,00,000/-, Cash Credit (Supply Bills) up to a limit of Rs. 15,00,000/- and letter of credit up to a limit of Rs. 18,00,000/-. 3. On 30-3-1996, the petitioner bank instituted Title Suit No. 54/1996, in the Court of the Assistant District Judge No. 1, Kamrup, for recovery of Rs. 1,41,73,221.50 as on 25-3-1996 with interest accruing thereon. The petitioner bank based its entire claim on 3 accounts, viz., Cash Credit (Hypothecation), Cash Credit (Supply Bills) and Cash Credit (Pledge) as indicated hereinabove. In the year 1997, this suit was transferred to the Debts Recovery Tribunal, Guwahati (hereinafter referred to as the 'DRT') and the same came to be registered and numbered as O.A. No. 118/97. 4. In the year 1999, the respondent No. 1 herein also instituted T.S. No. 71/1999 against the petitioner bank in the Court of the Civil Judge (Senior Division) No. II, Kamrup, seeking recovery of a sum of Rs. 4,70,30,758/- as a sum payable to the respondent No. 1 by the petitioner bank. This suit too was transferred to the DRT and the same came to be registered and renumbered as O.A. No. 1/2001 in the form of a counterclaim. 5. By a common order, dated 10-10-2002, while the learned DRT rejected the claim of the petitioner bank mainly on the ground that the statements of accounts filed by the petitioner bank "were not genuine and tainted with concealment of facts and arbitrary charging of higher rate of interest", allowed the claim of the respondent No. 1 to the extent of Rs. 42,50,395/- on the ground that the petitioner bank had charged higher rates of interest from June 1993 till 20-3-1999 and recovered the said amount in excess and that no notice of any RBI circulars, changing the rates of interest, was ever served on the respondent No. 1. 42,50,395/- on the ground that the petitioner bank had charged higher rates of interest from June 1993 till 20-3-1999 and recovered the said amount in excess and that no notice of any RBI circulars, changing the rates of interest, was ever served on the respondent No. 1. Against the order, dated 10-10-2002, aforementioned, the petitioner bank preferred an appeal in the Debts Recovery Appellate Tribunal, Kolkata (hereinafter referred to as the 'DRAT') which gave rise to Appeal No. 50/2002. By its judgment and order, dated 27-5-2003, the learned DRAT remanded the matter back to the DRT, Guwahati, for the limited purpose of allowing the petitioner bank to submit the statements of accounts in order to enable the DRT to find out if any amount was due and payable by the respondent No. 1 to the petitioner bank. It was further directed that there would be no re-opening of other issues. 6. Thereafter, on 17-7-2003, petitioner bank filed an affidavit before the learned DRT enclosing, therewith, some statements of accounts, the claim of the petitioner bank having, now, been reduced to a sum of Rs. 1,14,35,758.54 as on 31-3-1996 with interest charged as per Demand Promissory Note and with interest charged, as per the RBI Circulars, being a sum of Rs. 1,20,64,997.54. The learned DRT, then, allowed the respondents to file their counter affidavit, along with the report of the Chartered Accountant. 7. By order, dated 10-11-2003, the learned DRT held that no further amount was due to be paid to the petitioner bank, the ground for the conclusion so reached being that since it was earlier held that the petitioner bank had already realized from the respondents and amount of Rs. 42,50,395 in excess of the amount, which was due and payable by the respondents to the petitioner bank, and that the modified claim of the petitioner bank had come down to Rs. 1,14,35,758.54, the petitioner bank was not entitled to any amount. The learned DRT further observed that the petitioner bank had, initially, filed 7 statements of account and, now, only three statements had been filed and had all the 7 statements of accounts been filed, the claim amount of the petitioner bank would have gone down further. 8. Appeal No. 3 of 2004 was preferred by the petitioner bank before the learned DRAT, Kolkata, against the said order, dated 10-11-2003, aforementioned. 8. Appeal No. 3 of 2004 was preferred by the petitioner bank before the learned DRAT, Kolkata, against the said order, dated 10-11-2003, aforementioned. By order, dated 18-5-2004, the learned DRAT dismissed the appeal on the ground that despite receiving adequate opportunity, the petitioner bank had not disclosed all the particulars in respect of all the loan accounts of the respondent No. 1 and, in such a situation, the petitioner bank was not entitled to any relief. Following this dismissal of the appeal, a notice, dated 28-3-2004, has been issued by the Recovery Officer, DRT, for recovery of Rs. 78,55,856.12. 9. By making the present writ application, the petitioner bank has sought for writ of certiorari setting aside the impugned order dated 18-5-2004 aforementioned, passed in the Appeal No. 3 of 2004, by the learned Debts Recovery Appellate Tribunal, Kolkata, and also the order, dated 10-11-2003, passed in O.A. No. 118/1997, by the learned Debts Recovery Tribunal, Guwahati, 10. It is pertinent to point out that while challenging the order dated 10-10-2002 aforementioned, earlier passed by the learned DRT, whereby the claim of the writ petitioner had been turned down and the claim of the respondent No. 1 had been allowed to the extent of recovery of Rs. 42,50,395/-, the grievance expressed by the petitioner bank was that the claim of the bank was illegally rejected and that without adequate evidence on record and contrary to law, the claim of the respondents to the tune of Rs. 42,50,395/- had been allowed. The learned DRAT, while remanding the matter, on 27-5-2003, clarified that the remand was for the "limited purpose of allowing the bank to comply with the directions of the learned Presiding Officer to enable him to adjudicate the matter, and find out actual amount due to bank if any". It was also clarified by the learned DRAT, while remanding the matter, that there should be no reopening of any of the issues or introduction of any new issue. Thereafter, the matter was further heard by the learned DRT and was disposed of by the impugned order, dated 10-11-2003, aforementioned. 11. It was also clarified by the learned DRAT, while remanding the matter, that there should be no reopening of any of the issues or introduction of any new issue. Thereafter, the matter was further heard by the learned DRT and was disposed of by the impugned order, dated 10-11-2003, aforementioned. 11. It is, now, contended, on behalf of the writ petitioner, that since the determination of the validity their claim for realization of money from the respondents was the purpose of the remand and the statements of account had been furnished anew by the writ petitioner to the learned DRT, the learned DRT was wholly wrong in allowing the respondents to file their affidavit and contest the genuineness and/or correctness of the statements of account so furnished to the learned DRT in terms of the appellate order, dated 27-5-2003, aforementioned. 12. While considering the above aspect of the matter, it needs to noted that the learned appellate Tribunal allowed the appeal for a limited purpose, as indicated hereinabove, the purpose being to determine the actual amount, if any, due to be paid to the writ petitioner. Thus, when taking advantage of the order, dated 27-5-2003, aforementioned, the writ petitioner had appeared in the learned DRT, Guwahati, and furnished its statements of account, it became the duty of the learned DRT to examine the correctness and genuineness of the revised claim made by the petitioner bank. For this purpose, the learned DRT was wholly justified in allowing the respondents to file their affidavit and contest the correctness arid genuineness of the said revised statements of account. 13. Coupled with the above, it is also worth noticing that according to the respondents, they had been maintaining with the petitioner bank as many as 8 (eight) numbers of accounts and the transactions, which had taken place in all those accounts, required to be taken together for the purpose of determining the actual liabilities, if any, of the parties concerned. The fact that the respondents maintained more than three numbers of accounts with the petitioner bank had, in fact, never been in dispute. The fact that the respondents maintained more than three numbers of accounts with the petitioner bank had, in fact, never been in dispute. Viewed from this angle, the learned DRT, Guwahati, had, for good reasons, directed the writ petitioner that the particulars of the other accounts of the respondents, which were being maintained by the petitioner bank, be filed; but for the reasons, which the petitioner bank have not disclosed till today, the petitioner bank did not produce the particulars of all the accounts. Even after the matter was received on remand, the petitioner, thus, failed to produce or disclose the other accounts of the respondents maintained by the petitioner bank in order to enable the learned DRT sustain the claim raised by the petitioner bank against the respondents. 14. Situated thus, it was impossible, on the part of the learned DRT, Guwahati, to examine the correctness and/or genuineness of the revised claim, which the petitioner had made. As against this, the petitioner bank was already held liable to pay to the respondents a sum of Rupees 42,50,395/-. The correctness of this amount also remained unshaken. In fact, the petitioner bank has till today, it is admitted position, not disputed the correctness of the said finding of the learned DRT. No wonder, therefore, that a notice of recovery already stands issued against the petitioner bank. 15. In the face of the facts, which have been indicated hereinabove, neither the learned DRT, Guwahati, nor the learned appellate Tribunal, Kolkata, acted illegally or unjustifiably in not allowing the claim of the petitioner bank and in maintaining that the petitioner-bank was liable to pay to the respondents the said sum of Rs. 42.50.395. 16. Because of what have been discussed and pointed above. I do not find that the impugned orders suffer from any infirmity and/or that the same require interference by this Court in exercise of its writ jurisdiction. In fact, the present writ petition is wholly without merit and must, therefore, fails. 17. In the result and for the foregoing reasons, this writ petition stands dismissed. 18. No order as to costs. 19. Interim direction passed in this case, on 2-7-2004, shall accordingly stand vacated. Petition dismissed