JUDGMENT : Vasanti A. Naik, J. Whether it would be necessary for the Debts Recovery Tribunal to serve a notice of the proceedings filed by the decree holder under section 31A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the 'Act' for the sake of brevity) on the judgment debtors-defendants is the question that falls for consideration in this writ petition. 2. Rule. Rule made returnable forthwith. The writ petition is heard finally, with the consent of the learned counsel for the parties. 3. The petitioner was a guarantor to the loan transaction between the respondent No.1State Bank of India and the borrower the respondent No.5 to the writ petition. The respondent No.5 defaulted in repaying the debt. The State Bank of India filed Special Civil Suit No.639 of 1991 for recovery of an amount of Rs.10,51,759/- against the respondent No.5borrower and the petitioner-guarantor. The said suit was decreed ex parte against the petitioner and the respondent No.5. Execution proceedings were filed by the State Bank of India for executing the decree for a sum of Rs.14,39,025/-. An amount of Rs.9,40,000/- was recovered by the State Bank of India by selling the mortgaged property of the borrower. After section 31A was inserted in the Act by the Amendment Act, 2000 permitting a decree holder to seek the recovery certificate in terms of the decree, the State Bank of India filed an application under section 31A of the Act before the Debts Recovery Tribunal on 27/11/2002. The Debts Recovery Tribunal issued a notice to the petitioner and the respondent No.5 but the notice was received back with the endorsement “left”. After the notice was returned back, the Debts Recovery Tribunal proceeded to consider the application filed by the State Bank of India under section 31A of the Act without service of notice on the petitioner after observing that it would not be necessary to serve a notice on the petitioner and the respondent No.5 in the proceedings for grant of recovery certificate under section 31A of the Act. By the impugned order dated 13/05/2003 the Debts Recovery Tribunal issued a recovery certificate in the sum of Rs.10,51,759/- against the petitioner and the respondent No.5 with future interest at the rate of 15% per annum. By the impugned order dated 13/05/2003 the Debts Recovery Tribunal issued a recovery certificate in the sum of Rs.10,51,759/- against the petitioner and the respondent No.5 with future interest at the rate of 15% per annum. Being aggrieved by the order of the Debts Recovery Tribunal, the petitioner filed an appeal before the Debts Recovery Appellate Tribunal. The Debts Recovery Appellate Tribunal dismissed the appeal filed by the petitioner by the order dated 28/11/2014. Both the orders are impugned by the petitioner in the instant petition. 4. Shri Ghare, the learned counsel for the petitioner, submitted that the impugned orders are liable to be quashed and set aside, as the Debts Recovery Tribunal has issued a recovery certificate against the petitioner without serving a notice of the proceedings on him. It is submitted by taking this court through the provisions of rules 9, 11 and 12 of the Debts Recovery Tribunal (Procedure) Rules, 1993 that it would be necessary to serve a notice of the proceedings filed by the decree holder under section 31A of the Act on the judgment debtor against whom a recovery certificate is sought. It is submitted that on a combined reading of the provisions of rules 9, 11 and 12 of the Rules of 1993, it is clear that a copy of the application under section 31A of the Act is required to be served on each of the defendants to the proceedings. It is submitted that only after the defendant/defendants is/are served, the tribunal is empowered to decide the application for issuance of recovery certificate. It is submitted by referring to the Debts Recovery Tribunal (Maharashtra and Goa) Regulations of Practice and specially regulation 39 thereof that an application under section 31A is required to be made in Form No.29 and it is necessary for the tribunal to issue a show cause notice of the said application to the certificate debtor. It is stated that regulation 39(3) of the Regulations provides that the presiding officer of the tribunal, is entitled to pass an appropriate order after considering the reply filed by the certificate debtor. It is stated that regulation 39(3) of the Regulations provides that the presiding officer of the tribunal, is entitled to pass an appropriate order after considering the reply filed by the certificate debtor. It is submitted that it is apparent from a reading of the provisions of the Rules of 1993 and the Debts Recovery Tribunal (Maharashtra and Goa) Regulations of Practice that it would be incumbent for the tribunal to ensure that a notice of the proceedings under section 31A of the Act is served on the defendants before the tribunal decides the application for issuance of recovery certificate. It is submitted that in the present case, though the tribunal had issued the notice to the respondent No.5 and the petitioner and the notice was returned back with an endorsement “left”, the tribunal proceeded to decide the application under section 31A of the Act in the absence of service of notice on the petitioner and the respondent No.5 after holding that it is not necessary to serve a copy of the application under section 31A of the Act on the defendants before issuance of a recovery certificate. 5. Shri Pande, the learned counsel for the State Bank of India, has supported the impugned orders. It is submitted that a decree is passed in favour of the State Bank of India by the civil court and there is no question of adjudication as to what amount is due and recoverable by the bank from the petitioner or the respondent No.5. It is submitted that since the decree was not fully executed through the civil court and the provisions of section 31A of the Act were inserted in the Act, the application under section 31A of the Act was filed. It is submitted that section 31A of the Act does not speak of the service of notice on the party against which a recovery certificate is sought, in the proceedings under section 31A of the Act. It is submitted that section 31A of the Act does not speak of the service of notice on the party against which a recovery certificate is sought, in the proceedings under section 31A of the Act. It is stated by referring to rules 9 and 12 of the Rules of 1993, specially sub-rules (5) and (6) of Rule 12 that since the liability is not fixed on the debtor or guarantor when an application under section 19 of the Act is filed, the provisions of sub-rules (5) and (6) of rule 12 authorise the tribunal to pass an order against the defendant to pay the amount to the extent of the admission and further empower the tribunal to order that any particular fact or facts shall be proved by affidavit or by the production of witnesses. It is submitted that it is apparent from a reading of sub-rules (5) and (6) of Rule 12 that rule 12 would not apply to an application under section 31A of the Act and would govern only an application under section 19. It is submitted that it appears from the provisions of rules 9 and 12 of the Rules that the provisions made therein would be applicable only to an application made under section 19 of the Act and not under section 31A of the same. It is submitted that in this case, the application was filed by the State Bank of India on 27/11/2002 and rule 9, so far as it relates to the filing of the application under sections 19 and 31A, was inserted on 21/01/2003. It is submitted that the Debts Recovery Tribunal (Maharashtra and Goa) Regulations of Practice have been brought into effect in March, 2003 and even if the regulations provide for the service of the notice on the defendants, the said regulations would not apply to the application filed by the State Bank of India, on 27/11/2002. It is submitted that the Debts Recovery Tribunal was satisfied that the amount for which the recovery certificate was issued against the petitioner and the respondent No.5 was due and payable by them and after recording the satisfaction, the impugned order was passed. It is submitted that the Debts Recovery Tribunal was satisfied that the amount for which the recovery certificate was issued against the petitioner and the respondent No.5 was due and payable by them and after recording the satisfaction, the impugned order was passed. The learned counsel relied on the judgment, reported in 2000 (4) Mh.L.J. 657 (Bank of India v. Shree Satya Corpn.) and specially paragraph 18 thereof to substantiate his submission that the scope of the applications under section 19 and section 31A of the Act is altogether different. It is submitted that paragraph 18 of the judgment would be a clue for deciding whether it would be necessary to serve the notice of the proceedings under section 31A of the Act for issuance of a recovery certificate. It is submitted that since the tribunal is not empowered to sit in appeal over the decree passed by the civil court and nothing remains to be adjudicated in regard to the liability of the borrower or the guarantor, the service of notice is not necessary. 6. For answering the question involved in this writ petition, it would be necessary to consider a few provisions of the Act and the Rules. At the outset, it would be necessary to refer to the provisions of section 31A of the Act under which the application for issuance of certificate of recovery is filed. Section 31A of the Act reads thus :- 31A. Power of Tribunal to issue certificate of recovery in case of decree or order. (1) Where a decree or order was passed by any Court before the commencement of the Recovery of Debts to Banks and Financial Institutions (Amendment) Act, 2000 and has not yet been executed, then, the decree-holder may apply to the Tribunal to pass an order for recovery of the amount. (2) On receipt of an application under subsection (1), the Tribunal may issue a certificate for recovery to a Recovery Officer. (3) On receipt of a certificate under subsection (2), the Recovery Officer shall proceed to recover the amount as if it was a certificate in respect of a debt recoverable under this Act. It is apparent from a reading of section 31A of the Act that the tribunal is empowered to issue a certificate of recovery in case of a decree or order. It is apparent from a reading of section 31A of the Act that the tribunal is empowered to issue a certificate of recovery in case of a decree or order. A decree holder who was unable to get the decree executed before the coming into force of the Amendment Act, 2000 is entitled to apply to the tribunal for an order for recovery of the amount. Subsection (2) of section 31A of the Act provides that the tribunal may issue a certificate for recovery of amount to a Recovery Officer. Subsection (2) of the Act gives a discretion to the tribunal to either issue or not to issue a recovery certificate. We are not concerned with subsection (3) of section 31A of the Act while dealing with the question that we are required to answer. After section 31A of the Act was brought on the statute book on 17/01/2000, the Debts Recovery Tribunal (Procedure) Rules, 1993 were accordingly amended. On 21/01/2003, rule 9 of the Rules of 1993 was amended. The unamended provisions of rule 9, provided for the procedure for filing of every application before the Debts Recovery Tribunal. The words “every application” were substituted by the words “an application under section 9 or section 31A”. It would be necessary to consider the provisions of rules 9, 11 and 12 of the Rules at this stage. The relevant rules are reproduced here for reference :- 9. Documents to accompany the application under section 19 or section 31A of the Act.– (1) An application under section 19 or section 31A shall be accompanied by a paper book containing : (i) a statement showing details of the debt due from a defendant and circumstances under which such debt has become due; and shall also disclose details of the case and decision in that case which is sought to be reviewed; (ii) all documents relied upon by the applicant and those mentioned in the application; (iii) details of the crossed demand draft or crossed Indian Postal Order representing the application fee; (iv) Index of Documents. (2) The documents referred to in sub-rule (1) shall be neatly typed in double space on one side of the paper, duly attested by a senior officer of the Bank, or Financial Institution, as the case may be, and numbered accordingly. (2) The documents referred to in sub-rule (1) shall be neatly typed in double space on one side of the paper, duly attested by a senior officer of the Bank, or Financial Institution, as the case may be, and numbered accordingly. (3) Where the parties to the suit or proceedings are being represented by an agent, document's authorising him to act as such agent shall be appended to the application: Provided that where an application is filed by a legal practitioner, it shall be accompanied by a duly executed vakalatnama. 11. Endorsing copy of application to the defendant. – A copy of the application and paperbook shall be served on each of the defendants as soon as they are filed, by the Registrar by registered post. 12. Filing of written statement and other documents by the defendant and by the applicant as a reply to the written statement.– (1) The defendant may, within a period of thirty days from the date of service of summons, file two complete sets of written statement including claim for setoff or counter claim, if any, along with documents in a paper book form. (2) A copy of the written statement filed under sub-rule (1) shall be served to the applicant. (3) If the defendant fails to file the written statement of his defence, including claim for setoff or counter claim under sub-rule (1), if any, within the period of thirty days, the Presiding Officer may in exceptional cases and special circumstances to be recorded in writing, extend the period, by such further period not exceeding fifteen days. (4) If the defendant have filed their claim for setoff or counter claim, the applicant shall file reply statement in answer to the claim for setoff or counter claim within a period of thirty days of filing of such claims. (5) If the applicant fails to file his reply within the period of thirty days, the Presiding Officer may, in exceptional cases and special circumstances, to be recorded in writing, extend the period, by such further period not exceeding fifteen days. (5) If the applicant fails to file his reply within the period of thirty days, the Presiding Officer may, in exceptional cases and special circumstances, to be recorded in writing, extend the period, by such further period not exceeding fifteen days. (6) The written statement of the defendant including claim for setoff or counter claim or any other pleading whatsoever by the defendant or the applicant, as the case may be shall be supported by an affidavit sworn in by the defendant or the applicant or the witnesses, verifying all the facts and pleadings and other documents annexed and the affidavits of witnesses, to be led by defendant or the applicant shall be filed simultaneously with the written statement of the defendant or the reply of the applicant. (7) If the defendant or the applicant as the case may be, fails to file the reply as specified above, the Tribunal may proceed forthwith to pass an order on the application as it thinks fit. (8) Where a defendant makes an admission of the full or part of the amount of debt due to a bank or financial institution, the Tribunal shall order such defendant, to pay such amount, to the extent of the admission, by the applicant within a period of thirty days from the date of such order, failing which the Tribunal may issue a certificate in accordance with section 19 of the Act, to the extent of amount of debt due admitted by the defendant. (9) The Tribunal may at any time for sufficient reason order that any particular fact or facts shall be proved by affidavit, or that the affidavit of any witness shall be read at the hearing, on such conditions as the Tribunal thinks reasonable: Provided that after filing of the affidavits by the respective parties where it appears to the Tribunal that either the applicant or the defendant desires the production of a witness for cross examination and that such witness can be produced and it is necessary to do so, the Tribunal shall for sufficient reasons to be recorded, order the witness to be present for cross examination, and in the event of the witness not appearing for cross examination, then, the affidavit shall not be taken into evidence and further that no oral evidence other than that given in this proviso will be permitted. (10) If the defendant denies his liability to pay the claim made by the applicant, the Tribunal may act upon the affidavit of the applicant who is acquainted with the facts of the case or who has on verification of the record sworn the affidavit in respect of the contents of application and the documents as evidence. (11) The provisions contained in section 4 of the Banker's Books Evidence Act, 1891 (18 of 1891) shall apply to a certified copy of an entry in a banker's book furnished along with the application filed under subsection (1) of section 19 by the applicant. Though none of the parties have referred to rule 13 of the Rules of 1993, in our view the said rule would also be relevant. Rule 13 of the Rules reads thus : 13. Date and place of hearing to be notified. – The Tribunal shall notify the parties the date and place of hearing of the application in such a manner as the Presiding Officer may by general or special order direct. 7. On a reading of rule 9 of the Rules, it is clear that the said rule provides for the manner in which an application under section 19 or section 31A of the Act is required to be filed. Rule 11 of the Rules would be more relevant. The said rule provides that a copy of the application and the paper book shall be served on each of the defendants, by the registrar as soon as they are filed, by registered post. On a reading of rule 11, it is clear that a duty is enjoined upon the registrar of the Debts Recovery Tribunal to serve a copy of the application under section 19 or section 31A of the Act on each of the defendants as soon as it is filed. Rule 12 of the Rules provides that the defendant would be required to file two complete sets containing the reply to the application along with documents with the Registry within one month of the service of the notice of the application on him. The defendant is further required to endorse one copy of the reply along with documents as mentioned herein above, to the applicant who files the application under section 19 or section 31A of the Act, as the case may be. The defendant is further required to endorse one copy of the reply along with documents as mentioned herein above, to the applicant who files the application under section 19 or section 31A of the Act, as the case may be. The tribunal is empowered to permit a defendant to file a reply after the expiry of the period of one month in its discretion. In terms of sub-rule (4) of Rule 12, if the defendant fails to file the reply on or before the fixed date, the tribunal is empowered to proceed forthwith to pass an order on the application, as it may deem fit. Sub-rules (1), (2), (3) and (4) would surely apply to the applications under either section 19 or section 31A of the Act. Sub-rule (5) of rule 12 on which great reliance has been placed by the learned counsel for the State Bank of India may not apply to an application under section 31A of the Act, but would apply to an application made under section 19. In a given case, sub-rule (6) of rule 12 could be applied to an application under section 31A of the Act also. On a reading of the provisions of rules 9, 11 and 12, it is clear that it would be incumbent upon the registrar of the Debts Recovery Tribunal to ensure that the application under section 31A of the Act is served on each of the defendants. Rule 13 of the Rules would also be relevant. This rule provides that the tribunal would notify the date and place of hearing of the application to the parties in such manner, as the presiding officer may by general or special order direct. This rule would apply to the parties to an application under section 19 or section 31A of the Act. The rule provides for an opportunity of hearing to the parties before an application is decided by an order that is required to be signed as per the provisions of rule 14 of the Rules of 1993. Though the provisions of the Rules of 1993 clearly provide for the service of notice of an application made by a financial institution under section 31A of the Act on the defendants, the Debts Recovery Tribunal (Maharashtra and Goa) Regulations of Practice, 2003 further endorse that the service of notice of the application on the defendants would be necessary. Though the provisions of the Rules of 1993 clearly provide for the service of notice of an application made by a financial institution under section 31A of the Act on the defendants, the Debts Recovery Tribunal (Maharashtra and Goa) Regulations of Practice, 2003 further endorse that the service of notice of the application on the defendants would be necessary. Regulation 39 of the Regulations of Practice, 2003 provides for the filing of an application for issuance of recovery certificate in Form No.29 and casts a duty upon the tribunal to issue a show cause notice of the said application under section 31A of the Act to the certificate debtor. Regulation 39(3) further provides that it would be necessary for the presiding officer of the tribunal to consider the reply, if filed by the defendant, hear both the parties and then pass an appropriate order. We do not find anything in the rules or the regulations that would be derogative of the provisions of section 31A of the Act. Subsection (2) of section 31A of the Act empowers the tribunal, in its discretion either to issue a certificate for recovery or not to issue the same. The Rules of 1993 provide for the manner in which an application under section 31A could be filed and the manner in which the registrar and the tribunal should proceed when the same is filed. The Regulations of Practice, 2003 make it abundantly clear that it would be necessary for the tribunal to ensure that a notice of the proceedings under section 31A of the Act is served on the defendant and if a reply is filed, it would be necessary to decide the application after considering the reply and hearing the parties. The registrar of the tribunal was probably aware about the position of law and hence the notice of the proceedings filed by the State Bank of India was issued to the petitioner and the respondent No.5. After the notices were received back with an endorsement “left”, the tribunal, without making any further efforts to ensure that the service is effected on the petitioner and the respondent No.5, proceeded to decide the application under section 31A of the Act without referring to the provisions of rules 9 to 13 of the Rules of 1993 and regulation 39 of the Regulations of Practice, 2003. Had the tribunal perused the Rules of 1993 and the Regulations of Practice, 2003, that were brought into force before the impugned order was passed, the tribunal may not have observed that the service of notice of the application under section 31A of the Act was not necessary. While holding that it would be necessary to serve a notice of the proceedings under section 31A of the Act on the defendants, we are not inclined to accept the submission made on behalf of the State Bank of India that paragraph 18 of the judgment in the case of Bank of India v. Shree Satya Corporation (supra) would be a pointer for deciding the question involved. Paragraph 18 of the said judgment merely carves out the distinction between the scope of the proceedings under section 19 and section 31A of the Act and nothing more. The question whether it would be necessary to serve a notice of an application under section 31A of the Act on the defendants did not fall for consideration before the court in that case. We are also not inclined to accept the submission made on behalf of the bank that since the application under section 31A was filed on 27/11/2002 and rule 9 was amended on 21/01/2003, the provisions of the Rules of 1993 that make a reference to an application under section 31A would not apply to the said application. The unamended provisions of rule 9 provided for the procedure for filing of 'every' application and 'every' application would include an application filed under section 31A of the Act, after section 31A was inserted in the statute. Since rules 11, 12 and 13 applied to every application before rule 9 was amended on 21/01/2003, rules 9, 11, 12, and 13 would apply to the applications under section 31A the Act from the date of insertion of section 31A in the Act, by amendment. 8. Hence, by answering the question in the affirmative, we allow this writ petition. The impugned orders are hereby quashed and set aside. The Debts Recovery Tribunal is directed to decide the application filed by the State Bank of India after granting an opportunity to the petitioner and the other defendants of filing a reply and after hearing them. 8. Hence, by answering the question in the affirmative, we allow this writ petition. The impugned orders are hereby quashed and set aside. The Debts Recovery Tribunal is directed to decide the application filed by the State Bank of India after granting an opportunity to the petitioner and the other defendants of filing a reply and after hearing them. The petitioner undertakes to appear before the Debts Recovery Tribunal on 06/07/2017 so that issuance of notice to the petitioner could be dispensed with. Rule is made absolute in the aforesaid terms with no order as to costs.