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2009 DIGILAW 325 (ORI)

RAMAKANTA MISHRA v. UNITED COMMERCIAL BANK

2009-04-10

B.N.MAHAPATRA, B.S.CHAUHAN

body2009
JUDGMENT : B.S. Chauhan, C.J. - This writ petition has been filed challenging the order dated 24-5-2002 (Annex.4) passed by the Presiding Officer, Debts Recovery Tribunal, Cuttack (hereinafter referred to as the 'Tribunal') in T.C. No. 312 of 2001 rejecting the application of Ramakanta Mishra (hereinafter referred to as the 'original petitioner') to transfer the case to the Civil Court for execution of the decree. 2. The facts and circumstances giving rise to this case are that the original petitioner had taken a term loan in April, 1971. He did not pay the amount and as on 25-12-1981 a sum of Rs. 1,06,153-64 paise remained outstanding. The original petitioner did not pay the amount in spite of notices given by the opposite party-bank. Thus the bank filed O.S. No. 10/1 of 88/82 before the Additional Civil Judge ('Senior Division'), Puri for realization of the said amount. The said suit was contested by the original petitioner. However, it was decreed vide judgment and decree dated 29-9-1999 and 14-10-1999 directing the original petitioner to pay a sum of Rs. 1,06,154-64 paise along with P.I. and F.I. at the rate of 13% per annum from 25-12-1981. Being aggrieved by the aforesaid judgment and decree, the original petitioner preferred first appeal. However, during this period the bank filed Execution Case No. 7 of 2000 before the Civil Court for recovery of Rs. 11,76,601-64 paise. In view of commencement of the Debts Recovery Act and particularly because of the provisions of Section 31A of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993, proceeding stood transferred to the Tribunal for execution. The matter was contested before the Tribunal by the original petitioner contending that wrong calculations had been made and the outstanding dues including interest etc. on the date of filing the transfer application was less than Rs. 10 lakhs, thus the Tribunal had no jurisdiction to entertain the proceeding and the matter should be referred back to the civil Court for execution of the judgment and decree. 3. The Tribunal considered the submissions advanced on behalf of the original petitioner and came to the conclusion that the outstanding dues was less than Rs. 10 lakhs, however, it was merely a technical ground and there was no prohibition in law and to advance the cause of justice the Tribunal could execute the decree. 3. The Tribunal considered the submissions advanced on behalf of the original petitioner and came to the conclusion that the outstanding dues was less than Rs. 10 lakhs, however, it was merely a technical ground and there was no prohibition in law and to advance the cause of justice the Tribunal could execute the decree. Such a course was adopted in view of the fact that the loan had been advanced to the original petitioner in 1971, the suit was filed in 1982 and it was disposed of after about 17 years in 1999 and it would be greatest injustice to deprive the bank from making the recovery of the same on technical considerations and ultimately passed the following order: In the result, I allow the prayer of the DHR Bank and order issue of certificate of recovery for recovery of Rs. 1,06,143-64 with interest ' 13% p.a. simple and costs of Rs. 7,930.00 and subsequent costs and forward the same to Recovery Cell for further action. Hence this writ petition. 4. This Court while entertaining the writ petition has passed an order dated 29-7-2003 restraining further proceedings before the Debts Recovery Tribunal, Cuttack. 5. Mr. A.K. Mohapatra, learned Counsel for the petitioner has submitted that the order of the Tribunal is a nullity for want of jurisdiction and in view of the fact that the Tribunal has reached the conclusion that the loan amount including interest was less than Rs. 10 lakhs it ought to have transferred the proceeding to the Civil Court for execution of the decree and it had no competence to continue the same. Therefore, the proceedings are liable to be quashed. 6. On the contrary Dr. Sujata Dash, learned-counsel for the bank has submitted that the Tribunal has reached the correct conclusion and in the facts and circumstances of the case as the Tribunal considered it proper to advance the cause of justice and refused to transfer the proceedings to the Civil Court for execution taking into consideration that long period of three decades has already been over and the bank is deprived of its legitimate right to make the recovery, no interference is required. In case the Court feels that the judgment and order of the Tribunal are to be set aside, this Court must transfer the execution proceedings before itself u/s 24, CPC for execution of the decree. In case the Court feels that the judgment and order of the Tribunal are to be set aside, this Court must transfer the execution proceedings before itself u/s 24, CPC for execution of the decree. Hence, the writ petition is liable to be dismissed. 7. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 8. Admittedly the petitioner's case is based on technicality and np'thing else. The loan was taken in 1971. The amount was not paid in spite of notices, Therefore, the bank filed the suit in 1992 which was decreed in 1999 and as the demand including interest as per calculation by the Bank was more than Rs. 10 lakhs the recovery proceedings were maintainable before the Tribunal. The Tribunal accepted the submissions made by the original petitioner that the amount was less than Rs: 10 lakhs, however, it refused to transfer 'the proceedings to the Civil Court for execution. After getting the interim order dated 29-7-2003 no attempt had ever been made by the petitioner to get the matter listed. When the matter came up for hearing on 28-7-2008, learned Counsel far the petitioner sought adjournment. Again the matter came up for hearing on 4-8-2008', and on that date the learned Counsel for the' bank was asked to take instruction as' to what was the amount of maturity value bf the Fixed Deposit on behalf of the petitioner and after adjustment of the same what would remain the outstanding dues. In response to the order dated 4-8-2009 learned Counsel for the bank vide letter dated 19-8-2008 informed the Court that the total amount of the loan outstanding including interest upto 19-8-2008 Was Rs. 7,95,767.81 paise and Fixed Deposit on maturity was Rs. 3,21,616.00 up to that date and after adjusting the said amount the outstanding dues remained at Rs. 4,74,151.81 paise. Considering the same the Court vide order dated 10-8-2008 asked the petitioner whether he was willing to deposit 50% of the said outstanding dues. But the petitioner did not consider it appropriate even to respond to the said order. In view of the fact that a long period has elapsed the Tribunal considered it proper to execute the decree. We do not think that the course adopted by the Tribunal was unwarranted or uncalled for. 9. But the petitioner did not consider it appropriate even to respond to the said order. In view of the fact that a long period has elapsed the Tribunal considered it proper to execute the decree. We do not think that the course adopted by the Tribunal was unwarranted or uncalled for. 9. It has been laid down by the Hon'ble Apex Court in Haryana Financial Corporation and Another Vs. Jagdamba Oil Mills and Another that if a financial institution grants loan to any person to render assistance for an industrial or commercial activity, the loan must be recovered, so that loan be advanced to other applicants. 10. It is well settled law that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. Vide Dal Singh v. King Emperor of India AIR 1917 PC 25 ; Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, ; and Sree Jain Swetambar Terapanthi Vid.(S) Vs. Phundan Singh and Others, . 11. In Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another the Apex Court considered a case wherein the District Judge, Meerut entertained and allowed an appeal against the judgment and order of the prescribed authority though appeal was not provided under the statute. The High Court of Allahabad refused to interfere with the said order observing that undoubtedly the judgment and order of the said appellate authority was without jurisdiction, but as the District Judge had rightly set aside the judgment of the prescribed authority, there was no occasion for the writ Court to interfere with the said judgment and order. The Apex Court approved the said judgment and order of the Allahabad High Court observing as under: It was contended before the High Court that no appeal lay from the decision of the prescribed authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the prescribed authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the prescribed authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the prescribed authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the prescribed authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the prescribed authority has been set aside, no objection can be taken. 12. Writ jurisdiction is a discretionary. It is not issued merely because it is lawful to do so. Once a factual stand is taken, it cannot be changed on any legal proposition whatsoever nor it is permissible for the Court to examine the correctness of the findings of fact unless it is found to be perverse being based on no evidence or contrary to evidence, as the writ Court exercises its supervisory jurisdiction and not of appellate forum. The purpose of the writ Court is not only to protect a person from being subjected for violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being the power discretionary, the Court has to balance competing interest, keeping in mind that interest of justice and public interest can coalesce in certain circumstances. (Vide Champalal Binani Vs. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being the power discretionary, the Court has to balance competing interest, keeping in mind that interest of justice and public interest can coalesce in certain circumstances. (Vide Champalal Binani Vs. The Commissioner of Income Tax, West Bengal and Others, ; Ramniklal N. Bhutta and another Vs. State of Maharashtra and others Chimajirao Kanhojirao Shirke and Another Vs. Oriental Fire and General Insurance Co. Ltd., ; Shama Prashant Raje Vs. Ganpatrao and Others, ; Life Insurance Corporation of India and Others Vs. Smt. Asha Goel and Another, ; Roshan Deen Vs. Preeti Lal, ; S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. and Others, ; and Chandra Singh Vs. State of Rajasthan and Another, . 13. In A.M. Allison Vs. B.L. Sen the Apex Court held that writ Court can refuse to exercise its jurisdiction as the writ proceedings cannot 'of course', if it is satisfied that there has been no failure of justice. 14. Therefore, Court has to examine the case with this angle also bearing in mind that cause of substantial justice cannot be defeated on mere technicalities. 15. We are in full agreement with the judgment of the Tribunal wherein it has been observed that if the Tribunal makes recovery it fail to understand how the cause of the petitioner got prejudiced. Learned Counsel for the petitioner could not give any reason worth, the name except technicalities, that if the recovery is made by the Tribunal, how the petitioner would be adversely affected and how it makes any difference if the decree is executed by the Civil Court or Tribunal. 16. In such fact-situation the submissions made by Dr. Sujata Dash, learned Counsel for the opposite party, that even after expiry of 30 years the bank is not able to make the recovery as the petitioner had lingered the case on technical grounds, thus execution proceedings be transferred before this Court in exercise of power u/s 24 of the CPC for execution thereof, would be justified. Section 24, CPC provides for transfer of suit, appeal or other proceedings. Other proceedings include the execution proceedings. Vide Rajagopala Pandarathar and Ors. v. Tirupathia Pillai and Anr. AIR 1926 Mad 421; Sarjudei Vs. Rampati Kunwari, ; Prabhakara Rao H. Mawle Vs. Section 24, CPC provides for transfer of suit, appeal or other proceedings. Other proceedings include the execution proceedings. Vide Rajagopala Pandarathar and Ors. v. Tirupathia Pillai and Anr. AIR 1926 Mad 421; Sarjudei Vs. Rampati Kunwari, ; Prabhakara Rao H. Mawle Vs. Hyderabad State Bank, ; and Mulraj Doshi Vs. Gangadhar Singhania, . Transfer of the proceedings by the High Court before itself on the ground that a party is abusing the process of the Court or otherwise resorting to the process that other party may not succeed stands fully fortified by the judgment of the Hon'ble Supreme Court in Abdul Rahman Vs. Prasony Bai and Another, . 17. In view of the above, we set aside the judgment and order dated 24-5-2002 passed by the Tribunal impugned before us and in the facts and circumstances of the case, as the petitioner is not willing to deposit any amount whatsoever and a period of thirty years is already over, we transfer the Execution Proceeding before us. The Tribunal is requested to transmit the entire record to the learned Registrar (Judicial) of this Court immediately. Both the parties are directed to appear before the Registrar (Judicial) of this Court on 4-5-2009 and the Registrar (Judicial) will proceed with the matter in accordance with law.