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2018 DIGILAW 1452 (GAU)

Mrinal Sarkar v. Canara Bank

2018-09-27

KALYAN RAI SURANA

body2018
ORDER : 1. Heard Mr. P.P. Medhi, learned counsel for the appearing for the petitioner as well as Mr. S. Borthakur, learned counsel appearing for the respondent. 2. By this application under article 227 of the Constitution of India, read with sections 115 and 151, CPC, the petitioner has prayed for setting aside the impugned order dated 30.7.2018 as well as the order dated 4.9.2018, passed by the learned Debts Recovery Tribunal, Guwahati Bench, Guwahati in O.A. No. 564/2017. 3. By order dated 30.7.2018, the learned Tribunal had held that by order dated 12.7.2018, the petitioner was directed to file written statement within two weeks with an advance copy, which was not done and the prayer for adjournment was again made on 30.7.2018. Accordingly, the right of the petitioner-defendant to file written statement-cum-evidence on affidavit was closed, fixing the case for final hearing on 20.8.2018. On 20.8.2018, the learned Presiding Officer of the learned Tribunal was on leave and the case was adjourned to 4.9.2018. On 4.9.2018, the learned Tribunal had recorded the presence of the learned counsel for the petitioner by further recording that the right of the petitioner to file written statement was already closed and accordingly, the learned Tribunal had proceeded to hear the arguments and the case was reserved for orders on 27.9.2018, i.e. today. 4. Expressing the urgency in the matter, in view of the proceedings of O.A. No. 564/2017, being fixed today for orders, the matter was moved yesterday on 26.9.2018. 5. Upon hearing, the learned counsel for the petitioner as well as the learned counsel for the respondent, the court was confronted with a question that whether an application similar to an application under order IX, rule 7, CPC could be entertained by the learned Tribunal after the case was reserved for passing orders and whether it would be appropriate on part of this court to exercise its extraordinary supervisory jurisdiction under article 227 of the Constitution of India to permit the petitioner to file his written statement before the learned Tribunal at this stage. 6. Accordingly, on the question of law, the matter was adjourned on 26.9.2018 and the matter was listed today. 7. 6. Accordingly, on the question of law, the matter was adjourned on 26.9.2018 and the matter was listed today. 7. The learned counsel for the petitioner has submitted that on the previous occasion on 4.9.2018, he had appeared before the learned Tribunal with a further prayer to defer the proceedings of O.A. No. 564/2017 to enable the petitioner to file a written statement. However, in view of the previous orders to proceed with the hearing, the learned Tribunal had refused to entertain any adjournment petition on behalf of the petitioner and proceeded with the matter and an ex-parte hearing done by the learned counsel for the respondent- Bank. 8. It is submitted that if one opportunity is granted to the petitioner to file his written statement, he would do so within a time permitted by this court and that as per instructions, the petitioner is also agreeable to deposit a reasonable cost for the adjournment. 9. In support of his submissions that the courts had power to allow the petitioner to file his written statement by extending the time for filing such written statement, the learned counsel for the petitioner has placed reliance on the cases of Kajaria Iron Castings Ltd. vs. Aswini Kumar More, (2002) 10 SCC 292 , Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425 , Innovation Apartments Flat Owners Association, Secundrabad vs. Annovation Association, Secundrabad, AIR 1991 AP 69 and Mathes Trading Co. vs. Relish Foods (P) Ltd. (1995) 2 KLJ 418 : 1995 (0) Supreme (Ker.) 235. By referring to said cited cases, it is submitted that the superior court is not powerless to allow a defendant to file their written statement on record if he has good causes shown for not being able to file the written statement at the appropriate stage. 10. By referring to said cited cases, it is submitted that the superior court is not powerless to allow a defendant to file their written statement on record if he has good causes shown for not being able to file the written statement at the appropriate stage. 10. Per contra, the learned counsel for the respondent-Bank has referred to the provisions of sub-section (5) of section 19 of the Recovery of Debts and Bankruptcy Act, 1993, which provides that the defendant is to file his written statement within a period of 30 days from the date of service of summons, accompanied with the original documents or true copy thereof, further providing that where the defendant fails to file the written statement within the said period of 30 days, the Presiding Officer may in exceptional cases and in special circumstances to be recorded in writing, extend the period by such further period not exceeding 15 days to file the written statement of his defence. Accordingly, it is submitted that the Tribunal did not have the statutory powers to extend the period of filing of written statement beyond the maximum prescribed period of 15 days. 11. In this connection, it would be relevant to refer to the case of International Asset Reconstruction Company of India Ltd. vs. The Official Liquidator of Aldrich Pharmaceuticals Ltd. AIR 2017 SC 5013 : 2017 (0) Supreme (SC) 1023 wherein the Full Bench of the Hon'ble Supreme Court, by referring to the provisions of section 22 of the Recovery of Debts and Bankruptcy Act, 1993, has held that the Tribunal is not a court and, therefore, it is not bound by the principles of Civil Procedure Code. By referring to the provisions of sections 2(b), 1924 and 30(1) read with rule 2(3) of the Debts Recovery Tribunal Procedure Rules, 1993 and referring to the provisions of section 5 of the Limitation Act, it has been held that the Tribunal under the Act is not a court and has no power to condone any delay. By necessary implications, it can be inferred that the time of filing written statement must be directly adhered to in terms of provisions of section 19(5) of the Recovery of Debts and Bankruptcy Act, 1993. By necessary implications, it can be inferred that the time of filing written statement must be directly adhered to in terms of provisions of section 19(5) of the Recovery of Debts and Bankruptcy Act, 1993. The question which arises for determination by this court is whether it would be appropriate on the part of this court to exercise jurisdiction under article 227 of the Constitution of India to direct the learned Debts Recovery Tribunal to accept the written statement after order dated 4.9.2018 when the case was reserved for orders on 27.9.2018 after conclusion of the argument. 12. In this context, this court is reminded of the case of Arjun Singh vs. Mahindra Kumar, AIR 1964 SC 993 , wherein while interpreting the powers of the civil court under order IX, rule 7, CPC, the Hon'ble Full Bench of the Hon'ble Apex Court has, inter alia, held that if the hearing was completed and the suit was not adjourned for hearing, order IX, rule 7, CPC could have no application and the matter would stand at the stage of order IX, rule 6, CPC to be followed up by passing an ex parte decree, further holding that if that was the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application under order IX, rule 7, CPC or any order passed thereon on merits. In this context, it was held that if the case is reserved for orders, order IX, rule 7, CPC would have no application in the matter. 13. The case of Sangram Singh (supra), referred to by the petitioner, is another Full Bench decision of the Hon'ble Supreme Court, wherein the same principles have been differently held that if the case is fixed for final hearing, an ex parte decree can be passed and if it is passed then order IX, rule 13 would come into play, further holding that the decree being a order of the court can only to set aside by another order made and recorded with due formality, but rule 7 of order IX provided that if at an adjournment hearing the defendant appears and shows good causes for his previous non-appearance, he can be heard in answer to the suit. Therefore, bound by the two Full Bench judgments of the Hon'ble Apex Court, the law well established on the point is that if the court reserves any case for passing final orders or judgment, the provisions of order IX, rule 7, CPC would not be applicable. 14. In view of the ratio laid down by the Hon'ble Supreme court in the case of Arjun Singh (supra), the facts of the case of Kajaria Iron Castings Ltd. (supra) and Mathes Trading Co. (supra) are not applicable to the facts of the present case and as the said cases do not deal with the situation where the court had reserved the case for passing final orders after conclusion of the argument. 15. Therefore, this court while exercising jurisdiction under article 227 of the Constitution of India, cannot use the extraordinary powers of this court to override the principle prescribed under order IX, rule 7, CPC, as interpreted by the Hon'ble Apex Court in the case of Arjun Singh (supra). 16. Therefore, this court is constrained to hold that as the proceedings of O.A. No. 564/2017 was reserved for final orders by the impugned order dated 4.9.2018, it is not open to this court to permit filing of written statement after the case is reserved for final orders. Therefore, the only fall out or logical consequences which may follow is that such an ex parte order would not be bar for the petitioner to challenge the final orders under rule 13 of order IX, CPC as provided for in section 22(f) and/or (g) of the Recovery of Debts and Bankruptcy Act, 1993, or to file an appeal, if so advised. 17. Therefore, this revision stands dismissed. 18. There would be no order as to cost of this revision.