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2008 DIGILAW 510 (CAL)

Nasha Toys Pvt Ltd v. Indian Bank

2008-05-09

A.S.OKA, PRATAP KUMAR RAY

body2008
Judgment : PRATAP KUMAR RAY, j. (1). THIS application under Article 226 read with Article 227 of the constitution of India was filed by the defendants of Original Application No. 112 of 1997 being an application under Section 19 of the Recovery of Debts due to banks and Financial Institutions Act, 1993, hereinafter for brevity referred to as said Act, challenging the order dated 17th October, 2000 passed in the said original Application being the judgment allowing the application filed by the respondent no. 1 herein, the Indian Bank, under Section 19 of the said Act for recovery of dues amounting to Rs. 28,05,780. 18 paise, the order dated 11th september, 2002 passed by the Presiding Officer, Kolkata Debts Recovery tribunal rejecting the Misc. Application No. 33 of 2001 arose out of the prayer for setting aside the ex parte judgment dated 17th October, 2000 passed in Original application No. 112 of 1997 and the judgment dated 22nd March, 2004 passed by the Debt Recovery Appellate Tribunal at Kolkata challenging the said order dated 11th September, 2002 rejecting the said appeal. (2). IT is the grievance of the writ petitioners that ex parte judgment dated 17th October, 2000 passed in the said Original Application was not legally sustainable as the fixation of the date for passing such ex parte judgment as earlier passed by the Debt Recovery Tribunal was challenged during pendency of the matter seeking setting aside of such decision to pronounce the judgment ex parte by filing an application, which was not at all considered by the order of 11th september, 2002, passed in the Misc. Application No. 33 of 2001, wherein said ex parte judgment was assailed, stood rejected on the ground of limitation. It is submitted that said order was bad in law as the ex parte judgment dated 17th october, 2000 since was not communicated to the defendants following the mandatory provision of Section 19 (5) of the said Act, which stipulates to serve the copy of every order to the applicant and defendant by the Tribunal, there was no question of attraction of time limit and delay to file it, which was the reason to pass rejection of Misc. Application and that the order dated 22nd March, 2004 passed by the Appellate Tribunal also was bad in law for non-consideration of the said provision of Section 19 (5) of the Act, when the appeal was laid challenging the said order of 11th September, 2002 passed in the Misc. Application aforesaid. (3). THIS application has been opposed by filing an affidavit-in-opposition by the respondent no. 1, the Bank, who initiated the proceeding under Section 19 of the said Act for recovery of the dues as already referred to, which was registered as Original Application No. 112 of 1997. The maintainability question of present application has been raised by contending, inter alia, that the ex parte judgment delivered on 17th October, 2000 by the Presiding Officer, Kolkata Debts recovery Tribunal No. 1 in Original Application aforesaid, the order dated 11th september, 2002 passed by the Presiding Officer of the said Tribunal in Misc. Application No. 33 of 2001 arose out of said Original Application and the order dated 22nd March, 2004 passed by Debts Recovery Appellate Tribunal, Kolkata in appeal No. (No. not mentioned) of 2003/application No. 5 of 2003 arose out of said Original Application and the recovery proceeding being Recovery Proceeding no. 110 of 2000 of the said Tribunal, which are assailed in the writ application since have already been given effect to and implemented by realization of the claim amount from the respective parties including the writ petitioners herein, there is no cause of action existing at the present moment to interfere with the aforesaid orders, which are under challenge herein. (4). THE ex parte judgment, which is challenged herein became the subject matter of an application for setting aside the ex parte judgment in Misc. Application No. 33 of 2001, wherein an order was passed rejecting the said application by the order dated 11th September, 2002, which reads such: "misc. APPLICATION NO. 33 OF 2001 ARISING out OF O. A. NO. 112 OF 1997. Ld. Lawyer Mr. B. B. Ghosh is present for the Misc. Applicants. Ld. Lawyer Mr. D. Chakraborty is present for the O. P. /bank. Heard both the Ld. Lawyers as to Misc. Application dated 11. 7. 01 filed by the Misc. APPLICATION NO. 33 OF 2001 ARISING out OF O. A. NO. 112 OF 1997. Ld. Lawyer Mr. B. B. Ghosh is present for the Misc. Applicants. Ld. Lawyer Mr. D. Chakraborty is present for the O. P. /bank. Heard both the Ld. Lawyers as to Misc. Application dated 11. 7. 01 filed by the Misc. Applicants who are also the Defendants in the original Application No. 112/97 in the capacity of the Defendants No. 1, 2, 3 and 7 to 12 for setting aside the ex parte judgment dated 17.10.2000 passed by this Tribunal. Also heard as to the application dated 11. 7. 01 filed by the Misc. Applicants for condonation of delay under Sec. 5 of the Limitation Act. In the Original Application No. 112 of 1997 in which the ex parte judgment dated 17. 10. 2000 and certificate therein is passed, the misc. applicants have appeared during trial. On 13. 12. 99 the Misc. Applicant Defendants failed to appear and, hence, the order of ex parte hearing against them was passed. On the next date of hearing i. e. on 7. 3. 2000 the Misc. applicant Defendants moved an application for recalling the order for ex parte hearing. On 26.5.2000 the Misc. applicant Defendants again failed to appear and their application for recalling the order for ex parte hearing was dismissed. The case was fixed on 21.8.2000 for delivery of judgment. Again adjournment was given on that date and the next date was fixed on 17.10.2000. The Misc. applicants did not also turn up on that date. Then on 17.10.2000 the impugned ex parte judgment has been passed against them. After a long time i.e. on 11. 7. 01 the Misc. applicant Defendants filed this present application for setting aside the ex parte judgment passed on 17.10.2000. Their ground for the limitation is that Rule 16 of the Debts recovery Tribunal (Procedure) Rules, 1993 provides for sending the copy of the judgment to the parties and the copy of the order was received on 16. 6. 01 and from that date the Misc. Application is filed within one month. But this argument is not according to law and does not appeal to the logic and judicial conscience of the Tribunal. The Misc. application is basically under Order 9 Rule 13 of Civil Procedure Code for setting aside the ex parte judgment. 6. 01 and from that date the Misc. Application is filed within one month. But this argument is not according to law and does not appeal to the logic and judicial conscience of the Tribunal. The Misc. application is basically under Order 9 Rule 13 of Civil Procedure Code for setting aside the ex parte judgment. It should be filed within month from the date of the judgment and the decree. In this case the defendants continuously appeared during the trial. So, the limitation will start from the date of the judgment and decree dated 17. 10. 2000. Moreover, in paragraph 6 of the application dated 11. 7. 01 filed by the misc. Applicants for condonation of delay, the following facts have been recorded: "that the petition hearing matters in the Tribunal are taken up and heard at 2.00 p. m. But on 26. 5. 2000 the matter was taken up at 10-30 A. M. and decided ex parte. The Ld. Advocates for the concerned petitioners/respondents when attended the Tribunal at 2. 00 p. m. came to learn that the matter was already heard ex parte at 10-30 A. M. and the next date was fixed on 21. 8. 2000 for delivery of judgment. "the aforesaid quoted facts clarify that on 26. 5. 2000 the Misc. applicants had full knowledge that the case has been adjourned for 21. 8. 2000 for delivery of judgment. So, there is no question of lack of knowledge of the proceedings on the part of the Misc. Applicants. The aforesaid discussion clearly leads to the conclusion that the Misc. application for setting aside the ex parte judgment is beyond the limitation period filed long after the date of judgment which clearly indicates the willful negligent conduct on the part of the defendants. If in such a situation, the ex parte judgment and certificate of the tribunal is set aside, then it will be a mockery of the very system and procedure of the summary trial because about 60-70% cases are decided ex parte. The defendants deliberately fail to turn up and give presence in the Tribunal. They are habituated first to have the ex parte judgment by deliberate absence and then long after they come for setting aside and contesting the matter for further one decade. Hence, both the present Misc. The defendants deliberately fail to turn up and give presence in the Tribunal. They are habituated first to have the ex parte judgment by deliberate absence and then long after they come for setting aside and contesting the matter for further one decade. Hence, both the present Misc. Applications for setting aside the ex parte judgment and condonation of delay are dismissed with costs of rs. 2,000/-(Rupees two thousand only) to be paid to the O. P./bank. Copy of this order be given to the parties. " (5). CHALLENGING the said order dated 11th September, 2002, the present writ petitioners filed an application under Article 227 of the Constitution of India registered as C. O. No. 98 of 2003, which stood dismissed by the order passed by subhro Kamal Mukherjee,j. by the order dated 22nd January, 2003, which reads such: "this is a revisional application under Article 227 of the constitution of India challenging the order passed by the learned presiding Officer, Kolkata in misc. application No. 33 of 2001, inter alia, rejecting an application for condonation of delay, and, subsequently, rejecting an application to recall an ex-parte judgment and order of the tribunal dated 26th May, 2000. Under section 20 of the Recovery of debts due to Banks and Financial Institutions Act, 1993 such an order is appealable before the Appellate Tribunal constituted under the said act of 1993. Mr. Ashok Banerjee, learned Senior Advocate, appearing for the petitioner, argued vehemently that availability of the alternative remedy cannot be a bar on the part of the High Court to entertain an application under Article 227 of the Constitution of India. The Apex court in the case of Punjab National Bank vs. O. C. Krishnan and others reported in AIR 2001 SC 3208 observed as under: "the act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast tract procedure cannot be allowed to be derailed either by taking recourse to proceedings under Arts. 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though, a provision under an Act cannot expressly oust the jurisdiction of the Court under Arts. 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though, a provision under an Act cannot expressly oust the jurisdiction of the Court under Arts. 226 and 227 of the Constitution nevertheless when there is an alternative remedy available judicial prudence demands that the Court retrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High court should not have entertained the petitioner under Art. 227 of the Constitution and should have directed the respondents to take recourse of the appeal mechanism provided in the Act". In view of such pronouncement of the Apex Court and in view of the availability of the alternative remedy by way of appeal before the appellate Tribunal on facts and on law, I am inclined to interfere/entertain the application under Article 227 of the Constitution of India. Accordingly, the application under Article 227 of the constitution of India is dismissed as not maintainable without, however, any order as to costs. However, I make it clear that I have not gone into the merits of the case and all points are left open to be decided by the appropriate forum. " (6). AFTER the ex parte judgment delivered, the recovery proceeding was initiated and order dated 13th May, 2002 was passed by the Recovery Officer, debt Recovery Tribunal-I, Kolkata registered as case no. RP/110 of 2000 arose out of original case no. O. A. 112 of 1997. This order of Recovery Officer became the subject matter of challenge under Article 227 of the Constitution of India filed by one of the respondents of the Original Application, namely, Nagaland industrial Development Corporation Limited and by the order dated 4th september, 2002, this application was disposed of by P. K. Samanta,j. (as His lordship then was) directing the Recovery Officer to this effect: "the Recovery Officer is accordingly directed to dispose of the petition filed by the opposite party Creditor Bank expeditiously and peremptorily within a period of two months from the date of communication of this order upon an opportunity of hearing to the petitioner Company. It is hereby directed that petitioner Company will make its appearance before the Recovery Officer within a period of fortnight from this date and will file its objection if there be any to the petition filed by the opposite party Creditor Bank within a period of fortnight from the date of its appearance as above. However, it is made clear that if sufficient amount is not available within the petitioner Company in the aforesaid accounts and term deposits maintained with the said Banks then the Recovery Officer will have the authority to pass appropriate orders forthwith by taking into account the aforesaid certificate amount and the interest if any liable to be paid on such amount by the said certificate on the date of making such order." (7). IN pursuance thereof, recovery proceeding completed as the Recovery officer modified the order following the order passed by P. K. Samanta,j. (as His lordship then was) and petitioners of this writ application have not objected anyway and the recovery proceeding has been completed by satisfying the claim as was lodged in the Original Application against the present petitioners and the respondent, Nagaland Industrial Development Corporation Limited. Challenging the order dated 11th September, 2002 passed in Misc. Application No. 33 of 2001 being an application for setting aside the ex parte judgment dated 17th October, 2000 passed in Original Application No. 112 of 1997, an appeal was preferred to the Debt Recovery Appellate Tribunal at Kolkata being Appeal No. (not supplied) of 2003 and connected application no. 5 of 2003/198, which stood dismissed by the order dated 22nd March, 2004, which reads such: "this appeal was preferred on January 28, 2003 from an order dated September 11, 2002, made by the Learned Presiding Officer, debts Recovery Tribunal- (1), Kolkata, hereinafter referred to as "the drt". The principal grievance of the appellant was that without any intimation or any opportunity of hearing to the appellant, the DRT had heard the bank ex parte and disposed of the banks claim petition. The case of the bank was however, that the appellant was fully aware of the proceedings at every stage and it chose not to attend the hearing before the DRT or the Recovery Officer with intent to delay the recovery proceedings. I have heard the advocates for the parties. The case of the bank was however, that the appellant was fully aware of the proceedings at every stage and it chose not to attend the hearing before the DRT or the Recovery Officer with intent to delay the recovery proceedings. I have heard the advocates for the parties. The claim petition was disposed of by an order dated August 21 2000, Recovery proceedings in pursuance to the certificate issued by the DRT had commenced. The Recovery Officer by an order dated May 13 2002, directed attachment of the current account and term deposit account maintained by one of the guarantors the Nagaland Industrial development Corporation Ltd. hereinafter referred to as the NIDC. Those accounts were maintained with Vijaya Bank, and the Indian bank, both branches situate at Dimapur. NIDC preferred a revision application before the High Court at Calcutta. The appellant had been impleaded in the petitioner as a party. The revision application was disposed of by an order dated September 4 2002. The Honble P. K. Samanta,j. modified the order of the Recovery Officer from which the revision application was made to the extent that the order of attachment "shall be operative in respect of a total sum of Rs. 50 lakhs maintained by the petitioner Company both in the current account and the term deposit account ???. . ". The Honble Judge also directed the Recovery officer, "to dispose of the petition filed by the opposite party creditor bank expeditiously and peremptorily within a period of two months from the date of communication of this order upon an opportunity of hearing to the petitioner Company ???. . the petitioner Company will make its appearance before the Recovery Officer within a period of fortnight from this date and will file its objection if there be any to the petition filed by the opposite party creditor bank within a period of fortnight from the date of its appearance as above". The matter was taken up by the recovery Officer on October 22 2002, and in pursuance to the order of the Calcutta High Court directed the NIDC to make payment of Rs. 47,64,807. 18 together with a further sum of Rs. 28,05,780. 18 towards interest. The matter was taken up by the recovery Officer on October 22 2002, and in pursuance to the order of the Calcutta High Court directed the NIDC to make payment of Rs. 47,64,807. 18 together with a further sum of Rs. 28,05,780. 18 towards interest. In the order dated October 22 2002, it has been recorded that inspite of receipt of notice, the appellant had failed to appear or file any objection in violation of the order of the High Court. The matter appeared several times thereafter before the Recovery Officer, but neither the appellant nor NIDC were present. The Recovery Officer heard the matter further on January 31 2003, when both the bank and the nidc were represented by advocates. It is significant that advocate appearing for the appellant today, before this appellate tribunal, had appeared for NIDC on January 31 2003. The Recovery officer recorded that the bank had complied with an order dated December 22 2002. , and filed a statement of account showing full realization of the certificate amount. On the request of advocate for NIDC, for extension of time to file objection, the Recovery Officer allowed such time and fixed the matter for hearing on February 28 2003. In the meantime, the appellant had preferred this appeal from the order of the DRT dated September 11 2002, disposing of the claim petition. This was intimated to the Recovery Officer by advocate appearing on behalf of the NIDC on February 28 2003. In those circumstances, the only ground, it would appear to me on which this appeal is being persued was that the appellant was not aware of the proceedings before the DRT and the order dated August 21 2000, had been made ex parte. In the impugned order, the DRT had clearly recorded, and I am inclined to agree with his view that, on "26. 5. 2000, the Misc. applicants had full knowledge that the case had been adjourned for 21.8.2000 for delivery of judgment". In the impugned order, the DRT had clearly recorded, and I am inclined to agree with his view that, on "26. 5. 2000, the Misc. applicants had full knowledge that the case had been adjourned for 21.8.2000 for delivery of judgment". It was submitted by advocate for the appellant that it was common practice before the DRT that all matters for hearing would be taken up at 2.00 p. m. but that the instant matter had been taken up and disposed of by the DRT at 10.30 a. m. A xerox of the cause list of the DRT dated March 7, 2000 and May 26 2000, were made over by advocate for the bank. It would appear in no uncertain terms that the matters were fixed for hearing on 10. 30 a. m. The submissions by advocate for the appellant, I am afraid are of no substance and quite incorrect factually. Non furnishing of copies of orders in the instant case, I am afraid has no force in law. The appellant was represented by advocate throughout the proceedings, and there was no explanation as to why not even a whisper of an enquiry was made either by the appellant or its advocate between may 26 2000 and August 21 2000. It was significant that though the money has been recovered from NIDC, was no appeal has been preferred, nor any affidavit in support of this appeal was affirmed by nidc. The Recovery Of Debts Due To Banks And Financial Institution act, 1993, has provided in clear and simple language that an appeal from an order by the Recovery Officer would lie to the DRT and thereafter to the appellate tribunal. The appellant however, has sought to formulate its own proceedings by preferring the appeal before this appellate tribunal. For those reasons, the two applications and the appeal have no merit in law or otherwise I find no reason to interfere with the impugned order. The applications and the appeal are accordingly dismissed. There shall however be no order as to costs. A xerox of this order may be made available to the advocates for the parties by the registry of this appellate tribunal. " (8). THE said order is also under challenge herein. From the affidavit-in-opposition filed by the respondent no. The applications and the appeal are accordingly dismissed. There shall however be no order as to costs. A xerox of this order may be made available to the advocates for the parties by the registry of this appellate tribunal. " (8). THE said order is also under challenge herein. From the affidavit-in-opposition filed by the respondent no. 1 it appears that the present writ petitioner all through had the knowledge of the order passed by the Tribunal. In the affidavit-in-opposition different dates have been specified to identify the conduct of writ petitioners and other particulars of the different orders in paragraph 5 in details, which reads such: "5. That without prejudice to the aforesaid but fully relying upon the same, I state as follows: i. On or abut 21. 05. 1997 the respondent No. 1 filed an application under Section 19 of the Recovery of Debts due to Banks and Financial Institution Act, 1993 (hereinafter referred to as the said Act) being O. A. No. 112 of 1997 (hereinafter referred to as the said case) against the Petitioners and the proforma Respondent nos. 6 to 8 herein in the Debts Recovery Tribunal, West bengal and Union Territory of Andaman and Nicobar islands, inter alia, Recovery of its dues of Rs. 28,05,780. 18 paise as on 21.05.1997 and other consequential reliefs. I crave leave to refer a copy of the said application before this Honble Court at the time of hearing of the instant application, if necessary. II. Summons of the said case were duly served upon the petitioners and also upon the proforma Respondent Nos. 6 yo 8. III. On 26.11.1997 the Petitioner Nos. 1, 2 and 7 herein appeared before the said Tribunal through Ld. Advocate mr. B. B. Ghosh and case was adjourned till 05. 05. 1998. On 05.05.1998 all the Petitioners herein appeared before the Ld. Tribunal and prayed time to file written statement and matter was adjourned till 16. 10. 1998. On 16.10.1999 the matter was again adjourned till 27. 04. 1999. On 27.04.1999 the matter could not be taken up and as per concerned rules the same was put up on the very next day i.e. on 28. 04. 1999 when the petitioners appeared before the Ld. Tribunal but did not file their Written Statement and next date was filed on 26. 06. 1999. On 26. 09. 1999 the Petitioners again appeared through its Ld. 04. 1999 when the petitioners appeared before the Ld. Tribunal but did not file their Written Statement and next date was filed on 26. 06. 1999. On 26. 09. 1999 the Petitioners again appeared through its Ld. Advocate Mr. B. B. Ghosh but did not file the Written Statement and the case was adjourned till 06.09.1999. Thereafter the Petitioners did not appear before the Ld. Tribunal consecutive days and since there was no written Statement on behalf of the petitioners herein the case was fixed for exparte hearing on 07.03.2000 when the Petitioners appeared before the ld. Tribunal and filed a petition with a prayer to vacate the order for exparte hearing accordingly the case was fixed on 26. 05. 2000 for hearing petition dated 07.03.2000 filed by the Petitioners herein. On 26.05.2000 the Petitioner did not appear before the Ld. Tribunal and the petition dated 07. 03. 2000 was dismissed by the Ld. Tribunal. The case was taken up for hearing exparte and hearing was concluded and next date was fixed on 21. 08. 2000 for delivery of judgment. In spite of knowledge of the said application, the Petitioners and the proforma Respondent Nos. 6 to 8 herein did not choose to filed their written statements and they have avoided to contest the said case in one pretext to another. I crave leave to refer the entire orders passed in the said application before this Honble Court at the time of hearing of the instant application, if necessary. IV. I say that ultimately the said application was taken up for hearing ex-parte by the said Tribunal and the judgment and order was passed on 17. 10. 2000. Though an application for vacating the order for ex-parte herein was filed by the Petitioners on 07.03.2000 but no one was present for moving the same. A xerox copy entire order sheet upto the said judgment and order dated 17. 10. 2000 is annexed hereto and is marked with the latter "r1". V. Following the said judgment and order dated 17.10.2000, a certificate being No. 110 of 2000 dated 21. 11. 2000 was issued under sub Section 7 of Section 19 of the said Act by the Debts Recovery Tribunal, kolkata to the tune of Rs. 28,05,780. 18. A xerox copy of the said certificate dated 21.11.2000 is annexed hereto and is marked with the latter "r-2". VI. 11. 2000 was issued under sub Section 7 of Section 19 of the said Act by the Debts Recovery Tribunal, kolkata to the tune of Rs. 28,05,780. 18. A xerox copy of the said certificate dated 21.11.2000 is annexed hereto and is marked with the latter "r-2". VI. I say that challenging the orders dated 13. 05. 2002 and dated 17. 07. 2002 respectively passed by the said tribunal in the matter the proforma Respondent No. 11 herein moved one Revisional Application being C. O. No. 1648 of 2002 under Article 227 of the Constitution of india. Before this Honble Court wherein after hearing the Learned Advocates appearing for the parties His lordship the Honble Justice Prabir Kumar Samanta by an order dated 04.09.2002 disposed of the said application, inter alia, by correcting to the impugned order dated 13. 05. 2002 as made by the Recovery Officer in case No. RP/110/2000 arising out of case No. 0a/112/97 shall be operative in respective of a total sum of Rs. 50 lakhs maintained by the Petitioner therein both in the current accounts and term deposits with the vijaya Bank and Indian Bank Dimapur Branch. His lordship was also pleased to direct the Recovery Officer to dispose of the petition filed by the creditor Bank expeditiously and peremptorily within a period of two months from the date of communication of the said order upon an opportunity of hearing to the Petitioners therein. A copy of the said order dated 04.09.2002 annexed hereto and is marked with the letter R-3. VII. I say that challenging the said ex-parte judgment and order and subsequent certificate thereof, the Petitioners on 11.07.2001 filed an application being M. A. No. 33 of 2001 under Section 22 (2) (f) read with Rule 18 of the said act along with an application under Section 5 of the limitation Act, 1963 for condonation of delay. After filing of the said application being M. A. No. 33 of 2001 the petitioners did not consider it to necessary to appear before the Ld. Tribunal for four consecutive days, however, by an order dated 11.09.2002 the said Tribunal was pleased to reject the said application being M. A. No. 33 of 2001 having no merit thereof. After filing of the said application being M. A. No. 33 of 2001 the petitioners did not consider it to necessary to appear before the Ld. Tribunal for four consecutive days, however, by an order dated 11.09.2002 the said Tribunal was pleased to reject the said application being M. A. No. 33 of 2001 having no merit thereof. Entire order sheet from the date of filing of the M. A. No. 33 of 2001 to the date of delivery of judgment are annexed hereto and is marked with the letter R-4. VIII. I say that on or about 31.12.2002 the Petitioner filed an application for issuing a Certified copy of the order dated 11.09. 2003 and on or about 14.01.2003 filed an application being C. O. No. 98 of 2003 under Article 227 of the Constitution of India. The said C. O. 98 of 2003 was dismissed on 22.01.2003 by this Honble Court. Thereafter on 28.01.2003 the Petitioners prefer an appeal being appeal no??? of 2003/application No. 5 of 2003 before the Debts Recovery Appellate Tribunal at kolkata. In the said Appeal pursuant to direction of the honble Chairperson, Debts Recovery Appellate Tribunal, kolkata the Affidavits were exchanged. The said appeal along with connected applications were taken up for hearing when after hearing the Learned Advocates appearing for the parties the Honble Chairperson of the said Appellate Tribunal by his order dated 22. 03. 2004 was pleased to dismiss the said appeal along with the connected applications having no merit in Law or otherwise. A copy of the Memorandum of Appeal without annexures and copies of the Affidavits and a copy of the Order dated 22. 03. 2004 are annexed hereto and a copy of the order dated 22. 1. 2003 passed in C. O. No. 98 of 2003 are collectively marked with the letter R-5. IX i say that in terms of the said order of this Honble Court the Recovery Officer of the said Tribunal on or about 22. 10. 2002 was taken up for hearing when after hearing the parties it is recorded that the Respondent No. 1 complied with an order dated 22. 12. 2002 and filed a statement of account showing full realization of the certificate amount. 10. 2002 was taken up for hearing when after hearing the parties it is recorded that the Respondent No. 1 complied with an order dated 22. 12. 2002 and filed a statement of account showing full realization of the certificate amount. X i say that challenging the said entire proceedings and orders passed the said proceedings before the Debts recovery Tribunal at Kolkata, and order passed by the said Debts Recovery Appellate Tribunal at Kolkata, and also after passing of the said order dated 04. 09. 2002 by this Honble Court, the Petitioners filed the instant application before this Honble Court but in the meantime in view of the dismissal of Appeal on 22. 03. 2003 and also satisfaction of Certificate amount on 28.07.2004 the recovery proceeding was closed and file was sent to record following the satisfaction of the recovery. A copy of the order sheet dated 28. 07. 2004 is annexed hereto and is marked with the letter R-6. " (9). HAVING regard to the aforesaid orders under challenge, this Court has to consider in exercise of the jurisdiction under Article 226 read with Article 227 of the Constitution of India, the ambit and scope of judicial review of the impugned orders in this application. It is a settled legal position that the scope of judicial review under Article 226 and the scope of such review under supervisory jurisdiction under Article 227 are very limited. Such jurisdiction could be exercised when there is a breach of natural justice principle and there is a breach of mandatory statutory provision resulting a prejudicial effect. Furthermore, it is also a settled legal position that natural justice principle is also contoured and limited by the prejudice theory. From the orders already quoted and the different sequence of the proceedings, it appears that the writ petitioners got every opportunity to place their case but they did not avail it. Writ petitioners all through were being represented by the learned Advocate, as such, there was no scope of any breach of principle of natural justice. (10). From the orders already quoted and the different sequence of the proceedings, it appears that the writ petitioners got every opportunity to place their case but they did not avail it. Writ petitioners all through were being represented by the learned Advocate, as such, there was no scope of any breach of principle of natural justice. (10). FURTHERMORE, so far as, non-compliance of provision of Section 19 (5) of the said Act as urged, namely, non-service of the copy of the ex parte judgment, which has been highlighted as a statutory breach, this Court is of the view that when the application for setting aside the ex parte judgment was filed, which was registered as Misc. Application No. 33 of 2001 and against the dismissal of this application when the matter was not placed to the Tribunal but was referred to the Appellate Tribunal, which was not permissible under the law and there was an order passed by Subhro Kamal Mukherjee,j. in the aforesaid application moved by the present writ petitioner directing to prefer an appeal before the Debt recovery Tribunal as per law, which admittedly has not been done, hence, the submission on breach of Section 19 (5) of said Act cannot be a factor to quash the impugned orders herein. Writ petitioners had the knowledge of the orders impugned. Hence, the reason as assigned by the Tribunal and the Appellate tribunal both rejecting the application for setting aside ex parte judgment being misc. Application No. 33 of 2001 and the subsequent order of the Appellate tribunal cannot be said as orders passed, which suffers from any illegality of decision making process, to allow this application. There is no doubt that Section 19 (5) directs the supply of the copy of the judgment but when the parties appeared before the Tribunal and took all steps subsequent to the passing of ex parte judgment by filing Misc. Application seeking order of setting aside such ex parte judgment, judgment came to their knowledge from the very date when they filed the application for setting aside the ex parte judgment, which was registered as Misc. Application No. 33 of 2001. Application seeking order of setting aside such ex parte judgment, judgment came to their knowledge from the very date when they filed the application for setting aside the ex parte judgment, which was registered as Misc. Application No. 33 of 2001. As such, the finding of both the Tribunals below by holding that the limitation would start from the date when the writ petitioners got the knowledge of the judgment cannot be said as a finding, which could be interfered with to unsettle the entire matter when already recovery proceeding has been finalized by payments of the claim awarded by the Tribunal and no objection was raised by the petitioners with reference to such. The exercise of jurisdiction under Article 226 and 227 is a discretionary jurisdiction. In view of the facts of the case, this Court is not interfering with the impugned orders of this application by exercising such discretion. Hence, this application, accordingly, stand dismissed.