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2012 DIGILAW 203 (MAD)

Bank of India v. Debt Recovery Tribunal, Coimbatore

2012-01-10

M.DURAISWAMY, P.JYOTHIMANI

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JUDGMENT :- P. JYOTHIMANI, J. 1. This Writ Petition has been preferred against the order of the Debt Recovery Tribunal by the Bank, in and by which the Tribunal, on the Application filed by the Bank for recording an award of settlement arrived at in a Lok Adalat conducted by the Tamil Nadu State Legal Services Authority under the provisions of the Legal Services Authorities Act, 1987, refused to record the compromise entered between the Bank and the borrower on the ground that there is no authority for the Officer concerned to sign the terms of settlement and to give a big waiver. 2. We have heard Mr. K. Rajasekaran, learned Counsel appearing for the Bank as well as Mr. B. Raviraja, learned Counsel appearing for the borrower/Second Respondent. 3. Both the Bank as well as the borrower, in a Lok Adalat conducted by the Tamil Nadu State Legal Services Authority, have arrived at a settlement and the same has been recorded by the Lok Adalat and a decree, in fact, has been passed as per Section 21 (2) of the Legal Services Authorities Act. It is also stated by Mr. B. Raviraja, learned Counsel appearing for the borrower/ Second Respondent that pursuant to the award passed by the Lok Adalat, the borrower has, in fact, made full payment. In such circumstances, the question to be considered in this Writ Petition is as to whether it was proper on the part of the Tribunal to virtually reject the compromise entered into between the parties in the manner known to law. 4. A reference to the contents of the impugned order passed by the Tribunal makes it very clear that the Tribunal has failed to understand the very concept of Lok Adalat settlement and the way in which the Tribunal has questioned the authority of the Officer in signing the Lok Adalat is anti-thesis to the very concept itself. 5. In this regard, it is relevant to extract some of the portions of the order of the Tribunal: “It is not understood as to under whose authority Shri. S. Gopalsamy, the DGM signed the terms of settlement and whether he is having power to give such a big waiver. Directions are given to the Bank to produce his authority in this behalf before signing the consent terms before the Lok Adalat.” 6. Directions are given to the Bank to produce his authority in this behalf before signing the consent terms before the Lok Adalat.” 6. The conducting of Lok Adalat has been statutorily recognized by the Act of Parliament under the Legal Services Authorities Act, 1987, by which the disputes between the parties are settled in the District Level, State Level and National Level by the Lok Adalat conducted as per the provisions of the Act by assigning the persons as contemplated therein. The Lok Adalat, when the matter is referred either by the parties themselves or through Court, gets cognizance of the case and arrive at a settlement after discussed with the parties. When such settlement has been arrived at, the Lok Adalat passes final order in the form of award and the said award passed by the Lok Adalat which is signed by the parties becomes a decree by itself, as it is stated under Section 21 of the Legal Services Authorities Act, which reads as follows: “21. Award of Lok Adalat – (1) Every award of the Lok Adalat shall be deemed to be a decree of a Civil Court, as the case may be an order of any other Court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of Section 20, the Court fee paid in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870): (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no Appeal shall lie to any Court against the award.” 7. In fact, even the matter which is not before the Court can be referred to by the parties before the Lok Adalat by way of pre-litigation Lok Adalat settlement in the Alternate Dispute Resolution concept. In which event, the award passed by the Lok Adalat, automatically becomes a decree executable in nature. In cases where the matter is referred by the Court, then the Court retains the jurisdiction over the said case and after the award is passed by the Lok Adalat, the same is formally referred to the Court for the purpose of giving its seal of approval. In cases where the matter is referred by the Court, then the Court retains the jurisdiction over the said case and after the award is passed by the Lok Adalat, the same is formally referred to the Court for the purpose of giving its seal of approval. When once the parties agreed the terms by way of settlement and the same has been passed as an award, so long as the same is not opposed to public policy or against law or illegal, it is the duty of the Court, to which it is referred, to give its seal of approval. It is certainly not open to the Court to dispute the settlement entered into between the parties unless, there are strong reasons of fraud, misconduct, etc. are given. 8. The concept of such decree passed by the Lok Adalat has been explained elaborately by the Honourable Apex Court in the case of Afcons Infrastructure Limited and another versus Cherian Varkey Construction Company Private Limited and others, 2010 (8) SCC 24 , wherein, R.V. Raveendran, J. as his Lordship then was, while making a thorough study of the concept of ADR system including mediation, conciliation, arbitration etc., summarized the nature of disputes, which are normally suitable for ADR process as including the dispute between the Banks and customers, which reads as follows: “28. All other suits and cases of Civil nature in particular the following categories of cases (whether pending in Civil Courts or other special Tribunals/forums) are normally suitable for ADR processes: (i) All cases relating to trade, commerce and contracts, including – “Disputes arising out of contracts (including all money claims); Disputes relating to specific performance; Disputes between suppliers and customers; Disputes between bankers and customers; Disputes between developers/builders and customers; Disputes between landlords and tenants/licensor and licensees; Disputes between insurer and insured;” (ii) All cases arising from strained or soured relationships, including “Disputes relating to matrimonial causes, maintenance, custody of children; Disputes relating to partition/division among family members/coparceners/co-owners; and Disputes relating to partnership among partners.” (iii) All cases where there is need for continuation of the pre-existing relationship in spite of the disputes, including – “Disputes between neighbours (relating to easementary rights, encroachments, nuisance etc); Disputes between employers and employees; Disputes among members of societies/associations/apartment owners’ associations;” (iv) All cases relating to tortious liability, including – “Claims for compensation in motor accidents/other accidents; and” (v) All consumers disputes, including – “Disputes where a trader/supplier/manufacturer/service provider is keen to maintain his business/professional reputation and credibility or product popularity.” The above enumeration of “suitable” and “unsuitable” categorisation of cases is not intended to be exhaustive or rigid. They are illustrative, which can be subjected to just exceptions or additions by the Court/Tribunal exercising its jurisdiction/discretion in referring a dispute/case to an AD process.” 9. Ultimately, the Supreme Court held the effect of such award passed by the Lok Adalat as per Section 21 of the Legal Services Authority Act, 1987, which reads as follows: “38. The other four ADR processes are non-adjudicatory and the case does not go out of the stream of the Court when a reference is made to such a non-adjudicatory ADR forum. The Court retains its control and jurisdiction over the case, even when the matter is before the ADR forum. When a matter is settled through conciliation, the settlement agreement is enforceable as if it is a decree of the Court having regard to Section 74 read with Section 30 of the AC Act. Similarly, when a settlement takes place before the Lok Adalat, the Lok Adalat award is also deemed to be decree of the civil Court and executable as such under Section 21 of the Legal Services Authorities Act, 1987. Similarly, when a settlement takes place before the Lok Adalat, the Lok Adalat award is also deemed to be decree of the civil Court and executable as such under Section 21 of the Legal Services Authorities Act, 1987. Though the settlement Agreement in a conciliation or a settlement award of a Lok Adalat may not require the seal of approval of the Court for its enforcement when they are made in a direct reference by parties without the intervention of the Court, the suit/proceedings. As the Court continues to retain control and jurisdiction over the cases which it refers to conciliations, of Lok Adalats, the settlement agreement in conciliation or the Lok Adalat award will have to be placed before the Court for recording it and disposed in its terms.” 10. In such circumstances, when the Bank itself agreed for the settlement in the Lok Adalat and filed necessary Application before the Debt Recovery Tribunal for referring the award passed by the Lok Adalat, in the absence of any proper reasons, in our considered view it is improper on the part of the Debt Recovery Tribunal to make unnecessary and unwarranted comments about the very authority of the Bank in arriving at the settlement. When the ADR systems, which are being propagated in this country wherein the parties not only settled the disputes outside the Court, but, on settlement their relationship continues in a cordial atmosphere, it is the duty of the Court to encourage the same and when the Bank has accepted certain question the same either in respect of the quantum of interest or quantum of Waiver, which is certainly within the purview of the Bank and not for the Court to dictate. 11. On a reading of the impugned order of the Tribunal, we are constrained to note that the Tribunal, which form part of the judiciary, has not chosen to appreciate the latest concept which has developed in this Country, especially by the catena of judgments made by the Honourable Apex Court including the judgment in the case of Afcons Infrastructure Limited and another versus Cherian Varkey Construction Company Private Limited and Others, 2010 (8) SCC 24 , referred to above and the tendency of the Tribunal in this regard is highly deplorable. 12. 12. In these circumstances, the impugned order of the Debt Recovery Tribunal stands set aside and the Debt Recovery Tribunal is directed to record the award passed by the Lok Adalat and give its formal orders, which shall be passed within a period of one week from the date of receipt of a copy of the order. No costs. Consequently, M.P. Nos. 1 & 2 of 2011 are closed. 13. Before parting with this case, we are constrained to make some observations, which may be helpful for posterity. The Government of India, which has enacted a noble Legislation like that of the Legal Services Authorities Act with an avowed object of settling the dispute between the parties in an amicable manner, which not only reduces the docket exposure, which is the main problem in the judiciary through out the country, but also to make the parties to live peacefully without having an adjudication mood in their disputes, in our view, ought to appoint appropriate persons in charge of the Tribunals like that of the Debt Recovery Tribunal or atleast give proper training before they take charge explaining to them the various concept of ADR Systems, so that the idea of ADR can be inculcated in the mind of the Presiding Officers in the larger interest of the Country.