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2012 DIGILAW 914 (ALL)

Ashish Srivastava v. State Bank of India

2012-04-13

R.K.GUPTA

body2012
JUDGMENT : R.K. GUPTA, (CHAIRPERSON) 1. They are heard. This is an Appeal preferred under Section 20 of the RDDBFI Act, 1993 challenging the order passed by the Debts Recovery Tribunal, Lucknow on 15th December, 2011. By this order, the recall application filed by the appellant to the order dated 3rd November, 2010 has been rejected. The relevant facts for adjudication of the case are that the respondent No. 1 filed the Original Application under Section 19 of the RDDBFI Act, 1993. After filing the Original Application, an application was moved by the respondent No. 1 Bank to implead the present appellant as one of the respondents. The said application was moved by the Tribunal without issuing any notice to the proposed respondent and on interim order was also granted by the Tribunal that the premises bearing Plot No. 25, Block No. 6, Ranighat, Kanpur shall not be sold to any person by the present appellant. After when the said order was passed by the Tribunal dated 3rd November, 2010, the appellant filed an application for recall of the Order dated 3rd November, 2010 on the ground that he has been impleaded as respondent/ defendant in the Original Application Without any notice and the order of injunction has also been passed against him. For this reason, an application was filed by the present appellant for recall of the order dated 3rd November, 2010 which was rejected by the Tribunal by an order dated 15th December, 2011 and therefore, the present Appeal has been preferred. 2. Learned Counsel for the appellant submitted that there has been no transaction with the Bank by the present appellant by which respondent No. 1 Bank has extended any facility to him, therefore, it is submitted that no debt due is recoverable from the present appellant by the Bank so that the appellant either may be necessary or proper party in the Suit for recovery of the debt filed by the Bank under Section 19 of the RDDBFI Act, 1993. 3. On behalf of the respondent Bank, it was submitted that there was facility granted by way of overdraft to the respondent Nos. 2 and 3 and the respondent Nos. 2 and 3 have fraudulently withdrawn the amount from the Bank and the said amount has been paid to the present appellant for purchase of the property. 3. On behalf of the respondent Bank, it was submitted that there was facility granted by way of overdraft to the respondent Nos. 2 and 3 and the respondent Nos. 2 and 3 have fraudulently withdrawn the amount from the Bank and the said amount has been paid to the present appellant for purchase of the property. The property was purchased out of the amount which was fraudulently withdrawn by the respondent Nos. 2 and 3. 4. On behalf of the appellant, it was contended that there had been transfer of the property by sale, but it was only an agreement to sale for a sum of Rs. 2 crore, which was received by the appellant from the respondent Nos. 2 and 3. It is the dispute in the present case, whether the amount was received by the appellant either of Rs. 2 crores or of Rs. 4 crores. 5. The question in the present case is, whether in the present case, the application filed by the appellant could have been allowed by the Tribunal without even issuing of notice to the present appellant. It appears that the Tribunal without issuing any notice to the application for impleadment has allowed the impleadment of the present appellant as one of the defendants in the Original Application and stay order restraining the present appellant was also passed that he will not alienate the property for which agreement to sale was entered into and such course adopted by the Tribunal to allow the application for impleadment without notice to the present appellant is unknown to the law. 6. A part from the aforesaid, this is also to be seen that admittedly, in the present case, there was no facility granted by the Bank of any nature to the present appellant. 7. No debt as defined under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was recoverable from the present appellant. It may be different thing that after withdrawal of the amount fraudulently by the respondent Nos. 2 and 3 as alleged by the Bank, the amount was paid to the present appellant under the agreement to purchase of the property, but that by itself would not be enough to satisfy the requirement to implead the present appellant as one of the defendants in the Original Application before the Tribunal. 8. 2 and 3 as alleged by the Bank, the amount was paid to the present appellant under the agreement to purchase of the property, but that by itself would not be enough to satisfy the requirement to implead the present appellant as one of the defendants in the Original Application before the Tribunal. 8. In this regard, Section 19(2) of the RDDBFI Act, 1993 is relevant, which provides that the Banks or the Financial Institutions may file the Original Application before the Tribunal for recovery of its dues and the debts including the liability against any person. 9. In the present case, admittedly, the amount which was alleged to have been withdrawn fraudulently by the respondent Nos. 2 and 3 from the Bank and was paid to the present appellant and there are no allegations that the present appellants are party to that alleged fraudulent withdrawal for the purchase of the property, but that does not mean that there is liability of the present appellant either under the debt or under the transaction entered into by the present appellant with the Bank or there is liability of the present appellant to pay the amount to the Bank for which application could be instituted against the present appellant, under Section 19(2) of the RDDBFI Act, 1993. 10. This is to be seen that the necessary party means in whose presence a suit cannot be decided effectively and proper party means, a Suit can be decided in his absence, but his presence would be necessary is required for adjudication of the Suit. Presence of the present appellant being a defendant is neither necessary nor appropriate, but he may be witness for withdrawal of the amount, which is received by him and, therefore, a party, who could be witness to the transaction, can not be made as defendant in the case. In view of the aforesaid, I am of the view that the order passed by the Tribunal on 3rd November, 2010 and also the order dated 15th December, 2011 are liable to be set aside and the present Appeal stands allowed.