PUNJAB AND SIND BANK vs M/s Samra Tiles Zone Ors. on 27 June 2019

27.06.2019

Item No.67

MA 158 of 2017 PSB Vs.

M/s Samra Tiles Zone & Ors.

Item No.68

MA 157 of 2017 PSB Vs.

M/s Samra Motors & Ors.

Advocates: Sh. GC Dhuriwala, Counsel for the Applicant/ Defendants.

Since both the above Misc. Applications filed above involve same parties and are on the same lines, they are disposed of by passing a common order.

This Application has been filed by Applicants/Defendants for recalling order dt.13.09.2017 and 18.09.2017 vide which right to file WS was closed for defendants and the OA was allowed respectively.

The Counsel for the Applicants/Defendants has stated that even after passing of various orders by the Tribunal the Applicant Bank did not supply complete paper book and on 23.08.2017, the counsel for the Bank stated that in case some papers are missing, he was ready to supply. The Tribunel while disposing of IA 479 of 2017 vide order dt.23.08.2017 had given time to the defendants to file WS within a week after collecting the documents from the branch of the Bank. The counsel for the Applicants/Defendants has further stressed that it is the duty of the Court to ensure that the Applicant Bank has supplied complete paper book but it is missing which is contrary to the principle of natural justice. Moreover, it is contrary to law as defendant cannot be directed by any court to collect the documents from the Applicant. It is not expected from the defendants to first collect the documents by spending 2 to 4 days and then prepare written statement for filing the same within a week w.e.f. 23.08.2017.

The counsel for the Applicants/Defendants stressed further that it was the duty of the Applicant to supply complete paper book whereas it played hide and seek with the Defendnats which even this Tribunal knows. Since contrary orders were passed on 13.09.2017 and 18.09.2017 rather passing of order of dismissal of OA, the Counsel for the

Applicants/Defendants that the said orders be recalled and the Resp./Applicant Bank be directed to place on record complete paper book of the OA to be supplied to the defendants by the office of the Tribunal. Thereafter a sufficient time may be given to the defendants to enable them to file Written Statement, in the interest of justice.

On the other hand side, the counsel for the Resp./Applicant OA Bank, besides filing reply, has stated that the Applicants/Defendants are barred from moving this application since they failed to attend the hearings on 23.08.2017,13.09.2017 and 18.09.2017 to plead their case and plead their IA. The Counsel for the Resp./Applicant OA Bank has further stated that the counsel for the Defendants has not paid fee as is clear from para 7 on page 5 and the defendants wanted time, therefore, they asked for supplying missing documents whereas no list of documents which were missing was provided by them. Further, the court had directed the Applicants/Defendants to colelct the documents whatever missing from the branch but the Applicants/Defendants failed to collect the same. If they were so serious that could have applied for documents also and could have get the same from record. The counsel for the Resp. Bank took serious stand that after giving directions to the Applicants/Defendants to collect the same, they remained absent on 23.08.2017, 13.09.2017 and 18.09.2017.

The Counsel for the Resp. Bank stressed that since the Applicants/Defendants are just trying to delay the matter, the MA should be dismissed. Moreover, the court has passed the orders rightly.

I have heard counsel for the parties and perused the record.

Firstly, it has been ound that the Bank itself was negligent in the matter as is reflected from order dt.20.04.2017 that after filing this OA when they were directed to serv ethe defendants, they themselves delayed the matter. Ultimately when the defendants put their appearance on 26.04.2017 when they were directed to file WS and the matter was adjourned to 03.05.2017 on which date the counsel for the

Applicants/Defendants appeared before Registrar but did not file WS nor they took objection that the paper book was not supplied to them. The matter was adjourned to 05.05.2017 on which date the counsel for the Applicants/Defendants took objection that the paper book was not supplied to which they were supplied copy of paper book in the court itself as reflected from order dt.05.05.2017, which is reproduced hereunder and was given 15 days time to file the WS:

“…Copy of paper book of OA has been supplied to the defendants today in the court…...let written statement be filed within 15 days from today with advance copy to the opposite counsel……The defendants are further directed to disclose particulars of properties or assets other than properties mortgaged with the Bank on affidavit on or before next date of hearing….”

Instead of filing WS, the Applicants/Defendants on the next date, i.e., 23.08.2017 preferred an IA stating that the exhibits/annexures enclosed with the above mentioned case were again not supplied to them. Entertaining the said IA, the defendants were directed to collect the same from the Bank itself and to file reply. But on the next date of hearing dt.13.09.2017 neither WS was filed nor the Applicants/ Defendants were present. Hence, their right to file WS was closed and the case was adjourned to 18.09.2017 for arguments on which date they again remained absent and the matter was decreed against them.

Moreover, as per the amended provisions of Act which was amended to further speed up proceedings and to cut short the delay thrust upon the Tribunal under Section 19 (5) (i) which reads as under: ……the defendant shall within a period of thirty days from the date of service of summons, present a written statement of his defence including claim for set-off under sub-section (6) or a counter claim under sub section (8), if any, and such written statement shall be accompanied with original documents or true copies thereof with the leave of the Tribunal, relied on by the defendant in his defence. PROVIDED that where the defendant fails to file the written statement within the said period of thirty days, the Presiding Officer may, in exceptional cases and in special circumstances to be recorded in writing extend the said period by such further period not exceeding fifteen days to file the written statement of his defence………….

In the light of above provisions as well as order passed by Honble High Court in the case title M/s Crest Steel & Power Pvt. Ltd Vs Punjab National Bank. “……….Therefore, in view of the order passed by the Hon’ble High Court in New India Assurance Co. Ltd. Vs Hilli Multipurpose Cold Storage Pvt Ltd., (2015) 16 SCC 22, the period of thirty days is mandatory keeping in view the object of the Act for expeditious disposal of the claim of the secured creditors. The intention for expeditious disposal is implicit, when sub Section (24) of Section 19, mandates the Tribunal to conclude the proceedings within two hearings…………………. ………Therefore, keeping in view of the object & purpose of the statute, we find that written statement was required to be filed within 30 days, which could in exceptional cases or in special circumstances be extended by the Tribunal by another fifteen days. In the present case, the petitioners were informed by show cause notice that they have to file their written statement within thirty days. The claim of the bank is for recovery of over 1400 Crore. Therefore, the provisions of the Act have to be assigned the meaning which is keeping in view the objective of the Act, rather than to frustrate the object. Therefore, we find that petitioners have lost their right to file written statement, having failed to do so within thirty days and also in the additional fifteen days. Accordingly the petition stands dismissed…………. J. Hemant Gupta, Chief Justice J. Vijay Kumar Shukla”

It is thus clear from the above that the defendants were given more than 5 months’ time to file WS but they neither filed WS nor argued upon the matter and after the decree has been passed they have filed this MA just to linger on the matter.

Hence, finding no merit, the MA is dismissed.

A copy of this order be placed in the file MA 157 of 2017.

File be consigned to record. (Harcharn Singh), Presiding Officer, DRT-I, Chandigarh 27.06.2019/cms