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Madhya Pradesh High Court · body

2007 DIGILAW 50 (MP)

Shubham Synthetics Pvt. Ltd. v. Bank of Rajasthan

2007-01-16

N.K.MODY

body2007
ORDER :- Being aggrieved by the order dated 4-10-2002 passed by Debts Recovery Tribunal, Allahabad, whereby the application filed by the petitioners for an order that Section 21 of the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 (in short 'Act of 1993) has been dismissed on the ground that it is not applicable in the present case, the present petition has been filed. 2. Short facts of the case are that respondent No. 1 Bank filed a suit against the petitioners on 10-3-1995 for realization of an amount of Rs. 94,20,553.36 paise in the Court of District Judge, Indore. After coming into force of Act of 1993, the suit was transferred under Section 31 of the Act to the Debts Recovery Tribunal, Jabalpur and was registered as T.A. No. 1015/98. The suit was contested by the petitioner before the District Court, Indore as well as Debts Recovery Tribunal, Jabalpur. After framing of the issues and recording of evidence vide judgment dated 24-2-2002, the suit was decreed against the petitioners for a sum of Rs. 20 lacs along with interest @ 15% per annum with effect from 10-5-1995. Being aggrieved by the judgment passed by the Debts Recovery Tribunal, Jabalpur, petitioners preferred an appeal under Section 20 before the Debts Recovery Tribunal at Allahabad. Since the suit was decreed in part, therefore, respondent No. 1 was also aggrieved by the Judgment and also preferred an appeal before the Tribunal at Allahabad. Since as per Section 21 of the Act of 1993, it is the mandatory requirement of law to deposit 75% of the amount if the appeal is being filed by the borrower, unless the appellate authority waives or refuses the amount, therefore, an application was filed by the petitioners wherein it was prayed that at the time of filing of the suit i.e. on 10-5-1995, the Act of 1993 has come in force in Madhya Pradesh w.e.f. 7-4-1998, therefore, the petitioners are entitled to get an order of declaration to the effect that provisions of Section 21 of the Act are not applicable to the petitioners relating to deposit of 75% of the amount. The application was contested by the respondent No. 1. Vide order dated 24-10-2002, the application was dismissed against which the present petition has been filed. 3. The application was contested by the respondent No. 1. Vide order dated 24-10-2002, the application was dismissed against which the present petition has been filed. 3. Learned counsel for petitioners submits that under Section 96 C.P.C. it was the statutory right of the petitioners to prefer an appeal and since on the date of filing of the suit, there was no provision under which the petitioners were liable to deposit 75% of the amount, therefore, at the subsequent stage no enactment can curtail the right of the petitioners which was available to the petitioners at the time of filing of the suit. For this contention, reliance is placed on a decision in the matter of Delhi Cloth General Mills Co. v. Income Tax Commissioner, Delhi, AIR 1927 Privy Council 242, wherein the Privy Council has observed as under : "While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the stature came into force, were final, are provisions which touch existing rights." 4. Further reliance was placed on a decision in the matter of Ram Singha v. Shankar Dayal, AIR 1928 Allahabad 437, wherein Allahabad High Court has held as under- "An appeal is a mere continuance of the original proceedings initiated by the filing of the plaint, and the right to continue that proceeding cannot be affected by a new Act, unless it expressly says so. It was further held that- Right to appeal to the Court of the District Judge was governed by the law prevailing at the date of the institution of the suit, and not by the law that prevailed at the date of its decision, or at the date of the filing of this appeal." 5. It was further held that- Right to appeal to the Court of the District Judge was governed by the law prevailing at the date of the institution of the suit, and not by the law that prevailed at the date of its decision, or at the date of the filing of this appeal." 5. Further reliance was placed on a decision in the matter of Radhakishan Laxminarayan Toshnival v. Shridhar Ramchandra Alshi, AIR 1950 Nagpur 177 (C.N. 50), wherein Division Bench of Nagpur High Court has held as under - "An appellant who filed his second appeal before 27th May, 1949 obtained a vested right to have the appeal heard by a Bench of two Judges, with the result that the amendment of the rules of Nagpur High Court effected on 27th May, 1949 will not apply to him provided his case satisfies the condition of valuation prescribed in Section 109, Cls. (a) and (b) read with S. 110." 6. Further reliance was placed on a decision in the matter of State of Bombay v. M/s. Supreme General Films Exchange Ltd. and Arati Cotton Mills, AIR 1960 SC 980 , wherein it was observed as under- "An impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment." In this case, it was also observed that- "Where a suit is filed prior to 1-4-1954, on which the Court fees (Bombay Amendment) Act, 1954, levying enhanced Court fees, came into force, in the absence of provisions giving retrospective effect to the amendments, the court-fees payable on the memorandum of appeal filed after the relevant date (1-4-1954) are payable according to the law in force at the date of filing of the suit (which was prior to the relevant date) and not according to the law in force at the date of filing of the memorandum of appeal (which was after the relevant date)." 7. Reliance was also placed in the matter of Oriental Insurance Company Ltd. v. Dhanram Singh, AIR 1990 Allahabad 104, wherein Division Bench of Bombay High Court has held that- "An Amending Act cannot impair the right of appeal until the amendment provision makes an express provision or by necessary intendment makes the provision applicable to the present proceeding." It was also observed that - "The right to appeal under the old M.V. Act was a substantive right and hence along with it the old law must also govern the exercise and enforcement of that right of appeal. A citizen cannot be deprived of his substantive right guaranteed to him unless it is taken away either expressly or by necessary intendment. There is nothing in the new M.V.Act which takes away the right of appeal of a claimant under the old Act and with it the mode of exercise of that right of appeal. The right of appeal also vests in the person who brings a proceeding or against whom the proceedings has been brought, a further right to enforce it according to the then existing law which would be deemed to continue to this limited extent." 8. In the matter of Jaswant Rao v. Kamlabai reported in AIR 1990 MP 354 , a Division Bench of this Court has held that- "An appeal without compliance of proviso to S. 173 (1) is maintainable whereby requirement is to pay payment of Rs. 25,000/- or 50% of the amount awarded whichever is less could not be insisted upon when the claim for compensation was presented before coming into force of the Act." 9. Mr. S. L. Jain, learned counsel for respondent No. 1 submits that all these judgments have been taken into consideration by this Court in the matter of Vineet Food Products Pvt. Ltd. v. Bank of India, 2000 (3) MPLJ 491 : AIR 2001 MP 62 . It is submitted that in this case, this Court while considering the application for waivement of depositing the amount, has observed that- 'the Act having expressly provided for requirement of pre-deposit while preferring appeal the contention that the parties shall be governed by law prevailing at the time of presentation of the suit for recovery was rejected.' It was further held that - 'Parliament in its wisdom has incorporated the provision for pre-deposit in the Act. In view of the Legislative intent whatever course may be open to the petitioners they are required to comply with the provision of pre-deposit subject to course to any order passed by the Debts Recovery Appellate Tribunal. Beg, borrow or steal is the Legislative mandate and the petitioners cannot be absolved to obey the command of the law on the specious plea that they are unable to pay the amount. Legislature in its wisdom have not thought it proper to exempt even an indigent person from the rigor of pre-deposit. 10. Apart from this, learned counsel submits that if a Court is of the view that a different view is to be taken then the matter requires to be sent to the Larger Bench. For this contention, reliance is placed on a decision in the matter of Jabalpur Bus Operators Association v. State of M.P., 2003 (1) JLJ 105 : AIR 2003 MP 81 , wherein five Judges of this Court has given the complete guidelines how the decision of Benches of Apex Court and this Court has to be followed by other Benches as precedent. In this case, it was observed that a Single Bench is bound by the decision of another Single Bench. In case if it is not agree with the view of the other Single Bench, he should refer the matter to the Larger Bench. 11. Mr. N. K. Dave, learned counsel for petitioner submits that facts of the case of Vineet Food Products Ltd., AIR 2001 MP 62 (supra) are quite different. In that case, application was for waiver of the amount under Section 21 of the Act but in the present case, the application filed by the petitioner was under Rule 22 of the Debts Recovery Appellate Tribunal (Procedure) Rule 1994, which reads as under : "Rule 22 :- ORDERS AND DIRECTIONS IN CERTAIN CASES The Appellate Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice." 12. Learned counsel submits that Rule 22 is similar to Section 151 CPC. The petitioner never requested the Tribunal for waivement of the amount but it was submitted that right of appeal was available without depositing any amount, therefore, petitioner is entitled to prefer an appeal without depositing any amount. 13. Mr. Learned counsel submits that Rule 22 is similar to Section 151 CPC. The petitioner never requested the Tribunal for waivement of the amount but it was submitted that right of appeal was available without depositing any amount, therefore, petitioner is entitled to prefer an appeal without depositing any amount. 13. Mr. Jain, learned counsel for respondent No. 1 submits that point involved in both the cases were one and the same. It is also submitted that since so far as recovery against the public institutions are concerned, a separate Act has been enacted, therefore, petitioner is not entitled to claim the benefit of the right to appeal which was available to the petitioner at the time of enforcement of the Act. It is also submitted that all these aspects have been taken into consideration by this Court while passing the order. 14. In the matter of Vineet Food Products Ltd., AIR 2001 MP 62 , the position of law was considered at length and after taking into consideration the law laid down by the Hon. Apex Court, it was held that right to appeal can be taken away by a subsequent enactment if it so provides expressly or by necessary amendment. 15. In the matter of Jamshed M. Pandey v. Indian Renewable Energy reported in IV 2006 Bank case 245 : AIR 2006 Del 584, a Division Bench of Delhi High Court has upheld the constitutional validity of Section 21 and its proviso of the Act. 16. In the present case, by subsequent enactment expressly the appeal is to be heard in accordance with the provisions of Recovery of Debts Due To Banks and Financial Institutions Act, therefore, no illegality has been committed by the learned appellate Tribunal in rejecting the application filed by the petitioners. 17. Apart from this, the suit which was filed against the petitioners was pending before the Civil Court. Because of coming into force of DRT Act, the suit was transferred from Civil Court to Debts Recovery Tribunal, Jabalpur. At that point of time, the petitioners did not raise any grievance to the effect that since the suit filed against the petitioners is governed by the general law i.e. Code of Civil Procedure, therefore, same cannot be transferred from Civil Court, Indore to Debts Recovery Tribunal, Jabalpur. On the contrary, the petitioners appeared before the Debts Recovery Tribunal, Jabalpur and contested the case. On the contrary, the petitioners appeared before the Debts Recovery Tribunal, Jabalpur and contested the case. After the trial and also at the time of filing of the appeal, the petitioners cannot be allowed to raise the objection that the petitioners are entitled for waivement of the rule whereby the petitioners are liable to deposit 75% of the awarded amount. Therefore, this petition deserves to be dismissed because of the subsequent enactment, the petitioners are liable to deposit requisite amount for the purpose of filing of the appeal before the Debts Recovery Appellate Tribunal, and also on the ground that the petitioners are not entitled to raise any grievance regarding his entitlement for filing the appeal without depositing any amount because the petitioners have submitted the jurisdiction of Debts Recovery Appellate Tribunal under the Act. 18. In view of this, the petition stands dismissed. Petition dismissed.