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2015 DIGILAW 800 (CAL)

Jeevan Diesel & Electrical Limited v. State Bank of India

2015-09-23

SIDDHARTHA CHATTOPADHYAY

body2015
Judgment : Siddhartha Chattopadhyay, J. This revisional application emanates from the order dated 18th November, 2014 passed by the Hon’ble Chairperson, Kolkata Debts Recovery Appellate Tribunal in Appeal No. 429 of 2013 by which the Hon’ble Chairperson was pleased to set aside the judgment and order dated 29th October, 2013 passed by the Learned Presiding Officer, Debts Recovery Tribunal, Gauhati in O.A. No. 147 of 2011. 2. According to the petitioner, the Hon’ble Chairperson, Appellate-Tribunal ought to have appreciated that there was no ‘debt’ as is defined under Section 2(g) Recovery of Debts due to Bank and Financial Institution Act, 1993. The said appellate tribunal had acted beyond his jurisdiction and failed to appreciate that the amount remitted to the account of the Petitioner No. 1 through R.T.G.S., which was not a loan or a financial assistance nor it was even transferred from the corpus of the applicant bank and therefore it does not come within the purview of Section 29 of the Recovery of Debts due to Bank and Financial Institution Act, 1993. He further added that the said amount was remitted, on being instructed by the proforma respondent, towards repayment of his dues lying payable to the present petitioner. Ventilating his such grievances he has prayed for dismissal of the impugned order. 3. The case of the opposite party Bank, as it transpires from their submission in course of hearing, that the bank concerned had remitted the said amount in favour of the present petitioner wrongly. 4. At the time of hearing Learned Counsel, appearing on behalf of the petitioner, has contended that the order passed by the Learned Presiding Officer Debts Recovery Tribunal Gauhati in O.A. No. 147 of 2011 is quite justified and it does not call for any interference. According to him in the said order dated 29th October, 2013 the Presiding Officer, Debts Recovery Tribunal, Gauhati has made a threadbare discussion and defined the true import and meaning of ‘debt’ in terms of Section 2(g) of the Act. He categorically argued that there was no business transaction between the Opposite Party No. 1 and the petitioner company. This petitioner company had business transaction with the proforma respondent, who had given advice to the present opposite party No. 1 to remit the said amount in favour of the present petitioner. He categorically argued that there was no business transaction between the Opposite Party No. 1 and the petitioner company. This petitioner company had business transaction with the proforma respondent, who had given advice to the present opposite party No. 1 to remit the said amount in favour of the present petitioner. He contended that a settlement effected under the procedures prescribed under the said Act is final and irrevocable and is not even bound to be revoked after conclusion of a R.T.G.S. transaction. 5. Learned Counsel appearing on behalf of the opposite party hasadmitted that there is a mistake committed by the bank itself but for that reason they should not be placed under a severe difficulty because it is a public money and it will have a great impact on the financial health of the country. He has also contended referring R.T.G.S./N.E.F.T request that the said request was faxed twice but under the same letter number i.e. B.C.P.L./F & A/R.T.G.S./10/11/126 dated 16.12.2010. This was sent by Brahmaputra Cracker and Polymer Limited twice i.e. one is at 12:44 P.M. and other is at 12:45 P.M. but under the same letter. It was not properly checked by the employees of the bank and as a result this problem arose. He also contended that the plea taken by the petitioner cannot be accepted on the ground that the proforma defendant owes more money to the present petitioner. If the present petitioner is entitled to recover more money from Brahmaputra Cracker and Polymer Limited, then he has other remedy but they cannot adjust it from this bank authority who had wrongly disbursed the said amount in favour of the petitioner. 6. Therefore, the main controversy centres round in the word “Debt”. According to Section 2(g) of the R.D.D.B.F.I. Act. 6. Therefore, the main controversy centres round in the word “Debt”. According to Section 2(g) of the R.D.D.B.F.I. Act. “[‘Debt’ means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application;]” (Emphasis supplied by me.) 7. Referring this definition the Learned Counsel appearing on behalf ofthe petitioner had vehemently argued that the petitioner was never a borrower of the opposite party bank and that there was no privity of contract between them. So according to him it does not come within the mischief of Recovery Act and that the said Act cannot be enforced against him by any stretch of imagination. 8. Apparently one may at the first blush consider it very sound andacceptable. But if we dip into the issue and go beneath the surface then certainly we would find that there is enough reason for discarding his such view. In Eureka Forbes Limited –Vs.- Allahabad Bank & Ors. reported in (2010) 6 Supreme Court Cases 193, the Hon’ble Apex Court with a view to giving a very meaningful shape to the word “Debt” has observed all the above expressions used in the definition clause and suggested that, expression ‘debt’ has to be given general and wider meaning, just to illustrate, the word ‘any liability’ as opposed to the word ‘determined liability’ or ‘definite liability’ or ‘any person’ in contrast to ‘from the debtor’. The expression ‘any person’ shows that the framers do not wish to restrict the same in its ambit or application. The legislature has not intended to restrict to the relationship of a creditor or debtor alone. General terms, therefore, have been used by the legislature to give the provision a wider and liberal meaning. These are generic or general terms. The expression ‘any person’ shows that the framers do not wish to restrict the same in its ambit or application. The legislature has not intended to restrict to the relationship of a creditor or debtor alone. General terms, therefore, have been used by the legislature to give the provision a wider and liberal meaning. These are generic or general terms. Therefore, it will be difficult for the Court, even on cumulative reading of the provision, to hold that the expression should be given a narrower or restricted meaning. What will be more in consonance with the purpose and object of the Act is to give this expression a general meaning on its plain language rather than apply unnecessary emphasis or narrow the scope and interpretation of these provisions, as they are likely to frustrate the very object of the Act. In Section 2(g) the following words have been incorporated such as any “liability”, “whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil court or any arbitration award or otherwise” and “legally recoverable”. If we analyze the section in the perspective of this case stressing upon the above mentioned words it will be clear that the claim in question made by the opposite party bank is essentially one for recovery of a ‘debt’ from the petitioner on the ground that the petitioner was not entitled to have it from them legally because R.T.G.S. letter number is same. It is not the case of the petitioner that they are entitled to get it from the bank on behalf of the Brahmaputra Cracker and Polymer Limited. If the petitioner is entitled to get the said amount or more from Brahmaputra Cracker and Polymer Limited then the petitioner is at liberty to take action against Brahmaputra Cracker and Polymer Limited but they cannot automatically adjust that so called dues which had been credited to their account under a mistake. We cannot confine ourselves within a narrow meaning of the word “Debt” but the expression “Debt” has to be given the widest amplitude to suggest any liability which is alleged as due from any person by a bank whether secured or unsecured or otherwise. In such circumstances, it comes within the purview of ‘legally recoverable’. We cannot confine ourselves within a narrow meaning of the word “Debt” but the expression “Debt” has to be given the widest amplitude to suggest any liability which is alleged as due from any person by a bank whether secured or unsecured or otherwise. In such circumstances, it comes within the purview of ‘legally recoverable’. On perusal of the impugned judgment of the Chairperson of Debts Recovery Appellate Tribunal and after going through the decision of Eureka Forbes Limited –Vs.- Allahabad Bank & Ors., I have no option left with except to hold that the impugned judgment passed by the Chairperson, Debts Recovery Appellate Tribunal Kolkata does not call for any interference. 8. Accordingly, this revisional application stands dismissed butwithout cost. 9. Let a copy of this order be sent to the Learned Appellate Tribunal &Presiding Officer, Debts Recovery Tribunal, Gauhati for their information and taking necessary action in accordance with law. 10. Urgent certified photocopy of this Judgment and order, if appliedfor, be supplied to the parties upon compliance with all requisite formalities.