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2009 DIGILAW 875 (CAL)

Avijit Mondal v. UNION OF INDIA

2009-12-03

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : BHASKAR BHATTACHARYA, ACJ. (1.) This mandamus-appeal is at the instance of a writ-petitioner and is directed against an order dated 11th September, 2009 passed by a learned Single Judge of this Court by which His Lordship disposed of the said writ-application by directing the respondent-Bank to serve a copy of the application under Section 19 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (hereinafter referred to as the Act) upon the learned advocate for the appellant within a week from the date of order with the observation that the time for filing written statement against the claim of the Bank should start running from the date of service of copy of such application. (2.) Being dissatisfied, the writ-petitioner has come up with the present appeal. (3.) There is no dispute that the respondent-Bank filed an application under Section 19 of the Act thereby claiming a sum of Rs.3,08,9,880/-before the Debts Recovery Tribunal, Calcutta Bench. The grievance of the writ-petitioner in the writ-application out of which the present appeal arises was that only the summons of the proceedings before the Tribunal had been served upon him but such summons was not accompanied by the copy of the application under Section 19 of the Act along with its annexure as provided in Rule 11 of the Debts Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as the Rules). According to the writ-petitioner, so long the said provision of the Rules had not been complied with by serving a copy of the application along with the summons through Registered Post by the Registrar of the Tribunal, there was no valid service of summons in accordance with the said provision and as such, the writ- petitioner was unable to file written statement to the said application. At the time of hearing of the said writ-application, the learned advocate appearing on behalf of the Bank did not dispute the fact that the summons was not accompanied by a copy of the application under Section 19 of the Act and hence, he offered to serve such copy upon the learned advocate-on- record for the writ-petitioner and the learned Single Judge accepted the said offer by giving a direction upon the learned advocate for the Bank to serve such copy upon the learned advocate for the writ-petitioner within seven days with clear direction that the time to file written statement against the claim of the Bank would start running from the date of the service of copy of such application with annexure upon his learned advocate. (4.) Being dissatisfied, the writ-petitioner has come with the present appeal. Mr. Basu, the learned senior advocate appearing on behalf of the appellant, relies upon Rule 11 of the Rules which provides that a copy of the application and the paper-book shall be served on each of the defendant as soon as those are filed by the Registrar of the Tribunal through Registered Post and contends that unless the copy of the application under Section 19 of the Act is served by the Registered Post through the learned Registrar of the Tribunal, the service cannot be said to be due service in terms of the Rules. In other words, Mr. Basu contends that the mode of service provided under Rule 11 could not be dispensed with by the learned Single Judge by directing delivery of such copy upon the learned advocate appearing on behalf of the writ-petitioner. Mr. Basu submits that if any statute provides any specific mode for effecting service that can be done only through that mode and not through any other modes. In support of such contention, Mr. Basu relies upon following decisions: 1) Nazir Ahmad vs. Emperor reported in AIR 1936 Privy Council 253; 2) K. Prasad vs. Union of India reported in 1988 (Sup) SCC 269, paragraph 24; 3) CIT vs. Anjum M. H. Ghaswalla reported in 2002 (1) SCC 633 ; 4) Bhavnagar University vs. Palitana Sugar Mill(P) Ltd. reported in 2003 (2) SCC 111 . (5.) Mr. Sinha, the learned advocate appearing on behalf of the Bank, on the other hand, has opposed the aforesaid contention of Mr. (5.) Mr. Sinha, the learned advocate appearing on behalf of the Bank, on the other hand, has opposed the aforesaid contention of Mr. Basu and has contended that the initial deficiency of the service of summons has been rectified by His Lordship by giving specific order upon his client and thus, there is no necessity of fresh service of summons over again thorough Registered Post by the Registrar of the Tribunal. Mr. Sinha further points out that His Lordship was also conscious in protecting the right of the appellant by specifically indicating that time to file written statement against the claim of the Bank would start only on the receipt of copy of the application with annexure and not before such service. Mr. Sinha, therefore, prays for dismissal of the appeal. Thus, the sole question that arises for determination in this appeal is whether the learned Single Judge was justified in curing the defect of service of summons as provided in the Rules by directing the learned advocate for the Bank to serve a copy of the petition with annexure upon the learned advocate on record for the appellant. (6.) In all the decisions cited by Mr. Basu, those have reiterated the well- settled position of law that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under a particular Statute are only the creatures of Statute and they must act within the four corners thereof. We do not for a moment dispute the said proposition of law. But the law is equally settled that all the duties prescribed in a Statute are not always mandatory but some of those may be directory in nature. For violation of the mandatory provisions of a Statute, the result of the actions taken becomes a nullity but for non-compliance of a directory provision, the resultant action does not become nullity if substantial compliance is made and no prejudice is caused to a party affected by the said decision for such non-compliance. (7.) Therefore, the crucial question before us is whether the Rule 11 of the Rules is mandatory or is a directory provision. (7.) Therefore, the crucial question before us is whether the Rule 11 of the Rules is mandatory or is a directory provision. (8.) The Rules, the violation of one of which is alleged in this appeal, were made in exercise of power under Section 36 of the Act which is quoted below: "Power to make rules.(1) The Central Government may, by notification, make rules to carry out the provisions of this Act. (2) Without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely: (a) the salaries and allowances and other terms and conditions of service of the Chairpersons, the Presiding Officers, Recovery Officers and other officers and employees of the Tribunal and the Appellate Tribunal under Sections 7, 12 and 13; (b) the procedure for the investigation of mis-behaviour or incapacity of the Chairpersons of Appellate Tribunals and the Presiding Officers of the Tribunals under sub-section (3) of Section 15; (c) the form in which an application may be made under Section 19, the documents and other evidence by which such application shall be accompanied and the fees payable in respect of the filing of such application; (d) the form in which an appeal may be filed before the Appellate Tribunal under Section 20 and the fees payable in respect of such appeal; (e) any other matter which is required to be, or may be, prescribed. (3) Every notification issued under sub-section (4) of Section 1, Section 3 and Section 8 and every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or rule or both Houses agree that the notification or rule should not be issued or made, the notification or rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule." (9.) Rule 11 is also quoted below: "Endorsing copy of application to the defendant: -A copy of the application and paper-book shall be served on each of the defendant as soon as they are filed, by the Registrar by registered post." (Emphasis supplied by us). (10.) From a plain reading of those provisions, it is apparent that the Rules framed are procedural ones and Rule 11, therefore, also prescribes the procedure for service of copy of the application and the paper-book. It is now settled by the Apex Court that if a particular statutory provision is a procedural one, even the use of the word "shall" in such provision will not make it mandatory unless consequence of disobedience has been indicated in the Statute. The exceptions to the previously mentioned rule of interpretation are in the cases where there is either "no notice", or "no opportunity" or "no hearing". In this connection, we may refer to the following observations of the Supreme Court in the case of State Bank of India vs. S.K. Sharma reported in A.I.R. 1996 S.C. 1669 at 1683:- "A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively." (11.) In the case of Lachmi Narayan vs. Union of India reported in A.I.R. 1976 S.C. 714, the Supreme Court pointed out some of the cases where the provisions must be held to be mandatory. Those are enumerated below in the exact language of the Apex Court:-"The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law-maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of must instead of "shall, that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, the Construction of Statutes pp. 523-524). Here the language of sub-section (2) of Section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months." (12.) In the case before us, the word used in the Rule 11 is "shall" and not "must" and the language is also not in the negative form. The provision of giving notice is a rather procedural one and no consequence is indicated in the Statute for non-compliance of service in the manner prescribed. In such circumstances, unless prejudice is shown, the departure from the statutory provisions cannot lead to annulment of the action taken. The provision of giving notice is a rather procedural one and no consequence is indicated in the Statute for non-compliance of service in the manner prescribed. In such circumstances, unless prejudice is shown, the departure from the statutory provisions cannot lead to annulment of the action taken. (13.) We have already pointed out that the learned Single Judge has directed the learned advocate for the Bank to serve a copy of the application upon the learned advocate appearing for the writ-petitioner and has further held that the time to file written statement will start running only on service of such application. Therefore, the demand of the writ-petitioner that the copy must be sent by the Registrar and that too by the Registered Post is a device to further delay the disposal of the proceedings. (14.) The four decisions cited by Mr. Basu, we have already pointed out, reiterated the principles which are applicable to the mandatory provisions of the Statute but as indicated above, those have no application in respect of directory provision of a Statute dealing with procedural matter. Even in the fourth decision cited by Mr. Basu, viz. Bhavnagar University (supra), the Apex Court in paragraph 42 of the judgment distinguished mandatory provisions from a directory one. (15.) In the case of Anjum M. H. Ghaswalla (supra), relied upon by Mr. Basu, the question was whether the Commission in exercise of its power under Sections 245-D (4) and (6) of the Income Tax Act had the power to reduce or waive interest statutorily payable under Sections 234-A, 234-B and 234-C except to the extent of granting relief under the circulars issued by the Board under Section 119 of the Act and such question was answered in negative. Therefore, in that case, the provisions of the Statute mentioned above were found to be mandatory. In the case of K. Prasad (supra), another one relied upon by Mr. Basu, the provisions of Cadre Strength Regulation was found to be mandatory and thus, in paragraph 24 of the judgment, the Apex Court demanded compliance of such mandatory provision. (16.) Similarly, in the case of Nasir Ahmed (supra), the other decision cited by Mr. In the case of K. Prasad (supra), another one relied upon by Mr. Basu, the provisions of Cadre Strength Regulation was found to be mandatory and thus, in paragraph 24 of the judgment, the Apex Court demanded compliance of such mandatory provision. (16.) Similarly, in the case of Nasir Ahmed (supra), the other decision cited by Mr. Basu, the question before the Privy Council was that in a case where the Magistrate had neither acted nor purported to act under Section 164 or Section 364 of the Code of Criminal Procedure, and nothing had been tendered in evidence as recorded or purporting to be recorded under either Section 164 or Section 364, whether the oral evidence of the Magistrate was admissible. Answering such question in negative, the Privy Council held that Section 164 was not meant to allow evidence to be put in a form in which it could prove itself under Section 74 or Section 80 of the Evidence Act. It is a section, the Privy Council proceeded, conferring powers on Magistrate and delimiting them and if oral evidence was allowed in such a case, all the precautions and safeguards laid down by Sections 164 and 364 would be of such trifling value as to be almost idle. According to the said decision, any Magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without showing, or reading to the accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The Privy Council apprehended that the range of magisterial confessions would be so enlarged by this process that the provisions of Section 164 would almost inevitably be widely disregarded. It was further pointed out that the object of Sections 164 and 361 was clearly to prescribe the mode in which confessions are to be dealt with by the Magistrates when made during an investigation, and to render inadmissible any attempt to deal with them by allowing oral evidence and thus, those provisions were found to be mandatory in nature. Thus, the principles laid down in the decisions cited by Mr. Thus, the principles laid down in the decisions cited by Mr. Basu were laid down in the cases where the violations were made to the mandatory provisions of the Statute and have no application to a case where the provision is a directory one. (17.) The point taken by the appellant having failed, we find no merit in this appeal and the same is dismissed. (18.) In the facts and circumstances, there will be, however, no order as to costs. (19.) The time to file written statement is extended by one month from today as provided in the Rules. The copy of the application with annexure be served upon the learned advocate for the appellant by tomorrow.