Matling Engineering India Pvt Ltd vs PUNJAB NATIONAL BANK on 14 June 2019

**FINAL ORDER**

**(Delivered on 14^th June,2019)**

1. The Misc. Applicant, Biswanath Dutta filed the present Misc. Application being No. 21/2015 on 16.10.2015 under Section 22(2)(g) of Recovery of Debts Due to Banks and Financial Institutions, 1993 against the Respondents, taking limitation/cause of action from the date of knowledge of the Recovery Proceedings in RC/34/2011 on 04.05.2015 through the Receiver in respect of execution of attachment order passed by the Learned Recovery Officer, praying for setting aside the certificate dated 01.02.2013 and striking down the name of the Applicant from the O.A. as well as from the decree and certificate.

The Applicant has pleading in the MA for condonation of delay in filing the present MA. No separate application for condonation of delay under the provision of the Limitation Act has been filed by the Misc. Applicant.

2. The brief facts of the proceedings in the TA/33/2002 that has given rise to the present MA are as under:

(i) The Applicant Bank, Punjab National Bank, filed a suit being No. C.S. No. 105/1996 before the Hon'ble High Court at Calcutta against seven Defendants including Shri Biswanath Dutta, Defendant No. 4 on 17.04.1996, praying for issuance of Decree for Rs. 48,83,129=12 and further interest @ 25.75% p.a. from 01.04.1996. The Suit being No. C.S. 105/1996 was transferred to this Tribunal and renumbered as TA/33/2002 vide this Tribunal's order dated 26.11.2002.

(ii) The Tribunal vide judgment dated 04.11.2011 allowed and disposed of the TA/33/2002 and issued Recovery Certificate dated 01.02.2013 against the Defendants for recovery of the dues of the Applicant Bank.

(iii) Learned Recovery Officer vide order dated 02.04.2014 in RC/34/2011 attached an unearthed property of the CDs being Flat No. 404, Block -C, 4^th Floor, Tribeni Apartment at 45, Kalupara Lane, Dhakuria, Kolkata-700031. Learned Recovery Officer vide order 02.04.2014 appointed Shri P. Prasad, Advocate as the Receiver in the RC matter. Vide order dated 30.01.2015 Learned Recovery Officer discharged the Receiver for his non-performance and appointed Shri Narayan Chandra Das, Advocate as the Receiver. The matter in RC/34/2011 was taken up for hearing by the Learned Recovery Officer on 20.08.2015. Shri Biswanath Dutta, Certificate Debtor No. 4 was present.

(iv) The Misc. Applicant being aggrieved by the Recovery Proceedings in RC/34/2011 has filed the present Misc. Application being No. 21/2015.

3. The brief facts of the Applicant's case are as under :

(i) The Misc. Applicant has come to know for the first time on 04.05.2015 when Receiver along with an Officer of the Certificate Holder Bank visited the residence of the Misc. Applicant. The Receiver informed the Misc. Applicant that an attachment order had been issued against the Misc. Applicant in respect of financial assistance taken by the Certificate Debtor No. 2. The Misc. Applicant has not received any intimation as regard the attachment order. The Misc. Applicant thereafter applied for certified copy of the orders.

(ii) The Misc. Applicant after receipt of the certified copy of the orders has come to know that Recovery Certificate has been issued on 01.02.2013 pursuant to the judgment dated 04.11.2011 in TA/33/2002 for recovery of Rs. 48,83,129=12 along with further interest. Since the copy of the original application has not been made over to the Misc. Applicant, hence he could not deal with the contentions made in the original application.

(iii) The Receiver visited the place of the Misc. Applicant which is basically a Flat not belonging to the Misc. Applicant. Hence, the Receiver cannot proceed to attach the said Flat. The Misc. Applicant has no immovable property exclusively standing in his name.

(iv) The copy of Recovery Certificate was not made available to the Misc. Applicant, and hence he had no knowledge of the description of the property which might have been mortgaged with the Certificate Holder Bank

(v) The Misc. Applicant could understand from the order dated 07.02.2013 in RC/34/2011 that Matling Engineering (India) Pvt. Ltd. has obtained financial assistance *[Handwritten signature]*

from Punjab National Bank. The Misc. Applicant was employed for gain and as Finance Manager & Secretary. The Misc. Applicant resigned from the said Company and said Company released the Misc. Applicant from the service from 21.10.1991.

(vi) The Misc. Applicant without prejudice impleading the Misc. Applicant as a party Defendant in the O.A. proceedings is not maintainable. The Misc. Applicant will deal with the contentions of the suit and take out appropriate application once the recovery certificate dated 01.02.2013 is set aside.

(vii) The Misc. Applicant has come to know the issuance of recovery certificate in TA/33/2002 for the first time on 16.07.2015 and thereafter on 12.08.2015, the Misc. Applicant applied for certified copy of the same. The Misc. Applicant has applied for certified copy of the order of TA/33/2002 within the period of limitation from the date of coming into knowledge of the said proceedings.

(viii) There is no intentional delay or latches on the part of the Misc. Applicant in filing the present Misc. Application. Since the certified copy of the records in TA/33/2002 has not been handed over to the Misc. Applicant in time, the Misc. Applicant could not file the present Misc. Application within thirty days from 16.07.2015 i.e. the date of coming into knowledge of the RC proceedings. The Misc. Applicant has prayed for condonation of delay in filing the present Misc. Application.

4. The Respondent Bank has filed affidavit in opposition to the Misc. Application. The Respondent Bank has dealt with the pleadings made in the Misc. Application. The Respondent Bank has contended that the inspite of several notices and summons issued by the Tribunal, the Misc. Applicant and other Defendants did not appear and the Tribunal has decreed the original application. The Respondent Bank has contended that the Misc. Application is barred by limitation and the Misc. Applicant is not entitled to any relief.

5. The Misc. Applicant filed supplementary affidavit on 20.07.2018. The Misc. Applicant has contended that on perusal of the TA/33/2002, M/s Matling Engg.(India) Pvt. Ltd. obtained financial assistance from the Respondent Bank and the Defendant No. 2 in TA/33/2002 executed the security documents. The Defendant No. 2, Shri Ajit Kumar Mukherjee as the Managing Director of the Defendant No. 1, executed the security documents prior to joining of the Misc. Applicant in the Defendant No. 1. There is wrong mention of the name of the Applicant Bank in the evidence of affidavit, which has been mentioned as Bank of India instead of Punjab National Bank.

6. After filing of the present Misc. Application being No. 21/2015 on 16.10.2015, the matter was taken up for hearing on 20.09.2017 i.e. after lapse of more than one and half year. The Misc. Applicant has not taken any effective step to pursue the matter and disposal thereof during this period. The matter was taken up for hearing on 08.06.2018

when none of the parties was present. The matter was thereafter taken up for hearing on 20.07.2018 when the Respondent Bank filed affidavit in opposition. The Misc. Applicant was present in person. The Misc. Applicant was allowed liberty to file affidavit in reply to the affidavit in opposition filed by the Respondent Bank. The matter was listed for hearing on the MA on 10.01.2019. The matter was taken up for hearing on 10.01.2019. None was present for the Misc. Applicant. Learned Counsel for Respondent Bank argued the matter and the matter has been reserved for order. From the conduct of the Misc. Applicant as it appears from the order sheets, it appears that the Misc. Applicant is not serious to pursue his case and early disposal of the matter.

7. Heard the Learned Counsel for the Respondent Bank and perused the pleadings made in the Misc. Application, the supplementary affidavit filed by the Misc. Applicant and affidavit in opposition filed by the Respondent Bank. The observation and finding of the Tribunal are as under :

(i) The Respondent Bank filed the T.A. being No. 33/2002 against seven Defendants vide order dated 26.11.2002 of Learned Registrar of the Tribunal. The Defendants have been served paper publication since service by regular mode of service i.e. hand delivery and postal service could not be effected upon the Defendants vide Learned Registrar's order dated 23.12.2004. The matter was taken by the Tribunal for hearing on 08.02.2005. None appeared for the Defendants and hence, the Defendants have been set ex parte vide Tribunal's order dated 08.02.2005. The matter was finally heard on 26.03.2010 when none was present for the Defendants. The matter was reserved for order.

(ii) The Tribunal passed the Judgment/Final Order on 04.11.2011 in T.A./33/2002. The Tribunal has issued Recovery Certificate being No. 34/2011 on 01.02.2013 against the Defendants and the Recovery Proceedings are pending. The Misc. Applicant has admitted in the Misc. Application that upon visit of the Learned Receiver at his residence, he came to know the recovery proceedings. Hence, the Misc. Applicant has the knowledge of the Recovery Proceedings in TA/33/2002.

(iii) Pursuant to pronouncement of judgment in T.A./33/2002, there is no existence of the T.A./ 33/2002. The Misc. Applicant has filed the Misc. Application being No. 21/2015 in the disposed of and non-existing T.A/33/2002, contending mainly the non service of notice/summons in the T.A. proceedings and his non-execution of security document and accordingly no debt liability can be decided against him. Hence, the Misc. has filed the present Misc. Application being No. 21/2015 and has prayed for setting aside the certificate dated 01.02.2012, condoning the delay for filing the Misc. Application.

(iv) The provisions available for the aggrieved person in the Recovery Of Debts and Bankruptcy Act, 1993 in a disposed of Original Application, filed under Section 19 of

M. P. Ch the Act are that (1) under Section 20 of the Recovery of Debts and Bankruptcy Act (2) under Rule 5A of the Debts Recovery Tribunal(Procedure) Rules,1993.

As per Section 20 (1) of the Act, **Appeal to the Appellate Tribunal**, "*Save as provided in sub-section (2), any person aggrieved by an order made or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter. (2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties, (3) Every appeal under sub-section(1) shall be filed within a period of thirty days from the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed. Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.*"

Section 21 of the Act provides that, "*Where an appeal is preferred by any person whom the amount of financial debt is due to a bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal fifty percent of the amount of debt so due from him as determined by the Tribunal under Section 19.*"

(v) The Misc. Applicant has not filed an Appeal against the judgment dated 04.11.2011 in T.A./33/2002 inspite of the provision of the Act that the Hon'ble Appellate Tribunal is empowered to condone delay in filing the Appeal beyond limitation period showing sufficient cause. The Misc. Applicant has also avoided to prefer Appeal before Hon'ble Appellate Tribunal to avoid making pre-deposit of fifty percent of the debt amount.

(vi) As per Rule 5A of the Debts Recovery Tribunal(Procedure) Rules, 1993, **5A. Review**, "*(1) Any party considering itself aggrieved by an order made by the Tribunal on account of some mistake, or error apparent on the face of the record desires to obtain a review of the order made against him, may apply for a review of the order to the Tribunal which had made the order. (2) No application for review shall be made after the expiry of a period of thirty days from the date of the order and no such application shall be entertained unless it is accompanied by an affidavit verifying the application (3) Where it appears to the Tribunal that there is no sufficient ground for a review it shall reject the application but where the Tribunal is of opinion that the application for review should be granted, shall grant the same, Provided that no such application shall be granted without previous notice to the opposite party to enable him to appear and to be heard in support of the order, a review of which is applied for.*"

*H. sh*

(vii) The Misc. Applicant has avoided preferring an Review Application against the judgment of the Tribunal dated 04.11.2011 in T.A./33/2002 inspite of the provision of the Act for raising error and mistake in the judgment dated 04.11.2011 in T.A./33/2002. Filing of Review Application beyond limitation period of thirty days from the date of the judgment dated 04.11.2011 attracts the issue of maintainability of the Review Application. It appears that the Misc. Applicant has not invoked this provision to avoid the issue of maintainability in filing the Review Application.

(viii) The Misc. Applicant has filed the present Misc. Application being No 21/2015 on 16.10.2015 under Section 22(g) of Recovery of Debts & Bankruptcy Act,1993 beyond limitation period of thirty days as mandated in the Act. Section 22(2) of the Act provides that "*The Tribunal and the Appellate Tribunal shall have, for the purpose of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908(5 of 1908) while trying a suit in respect of the following, namely, (g) setting aside any order of dismissal of any application for default or any order passed by it ex parte*" The order passed by the Tribunal on 04.11.2011 in TA/33/2002 is the judgment/final order and not any interim order or the order of dismissal of the application for default.

(ix) In view of above said observation and finding, the Tribunal deems it fit that before going into the merits of the Misc. Application, the issue needs to be examined at the outset whether the Misc. Applicant can file such Misc. Application under Section 22(g) of the Act for setting aside the judgment/final order dated 04.11.2011 in T.A./33/2002 instead of invoking Section 20 of the Act(filing of Appeal) or Rule 5A of DRT(Procedure) Rules(Review Application) if he is aggrieved by the final order dated 04.11.2011, the issue of authority of the Tribunal to condone the delay in filing the Misc. Application under Section 22(g) of the Act.

(x) The careful reading of Section 2(g) of the Recovery of Debts & Bankruptcy Act,1993, it appears that this Section does not specify that the "order" includes also the Judgment/Final Order in the original application. Once the original application under Section 19 of the Act has been decided finally and judgment/final order passed, there is specific provisions of the Act for the aggrieved party i.e. Section 20 of the Act and Rule 5A of DRT(Procedure) Rules. Hence there is an issue of maintainability of the present Misc. Application. Before deciding the maintainability of the present MA, there is also an issue whether there is any scope of filing application for condonation of delay in invoking Section 22(g) of the Act. On this issue of condonation of delay in invoking Section 22(g) of the Act, the Tribunal relies upon the decision of the Hon'ble Supreme Court of India. **Hon'ble Supreme Court of India in Civil appeal No. 16962 of 2017 in the matter of International Asset Reconstruction Co. of India Ltd Vs Official**

M. A.

Liquidator of Aldrich Pharmaceuticals Ltd. & others and Civil Appeal No. 16963 of 2017 in the matter of Iridium India Telecom Ltd. Vs Doha Bank QSC & another (decision dated 24.10.2017). The Hon'ble Supreme Court of India has held in the said decision that "The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery Officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only."

The Tribunal holds the view that application of Limitation Act is applicable under the Recovery of Debts & Bankruptcy Act only to the Application filed under Section 19 of the Act. There is exclusion of provision for extension of time by the Tribunal in preferring an application under Section 22(g) of the Act. Hence, there is no scope of filing Application under Section 5 of the Limitation Act for invoking Section 22(g) of the Act. The delay for invoking Section 22(g) of the Act against the final order of the Tribunal, therefore, cannot be condoned by the Tribunal for lack of authority of the Tribunal.

(xi) In view of above observation and finding, the Misc. Application filed by the Misc. Applicant being No. 21/2015 along with prayer for condonation of delay of in filing the present Misc. Application, invoking Section 22(g) of the Recovery of Debts & Bankruptcy Act suffers from the point of maintainability.

(xii) The Misc. Applicant has raised in the present Misc. Application factual and legal issues, mainly contending that he has not been served with notice/summon and he has not executed any security document in his personal capacity and hence, no debt liability can be decided as against him and he may be discharged from the debt liability in T.A./33/2002 and the recovery proceedings initiated by the Learned Recovery Officer. The factual and legal issues raised by the Misc. Applicant in the Misc. Application can be the subject matter of Appeal under Section 20 of the Act in case he is aggrieved by the judgment dated 04.11.2011. This Tribunal is not inclined to examine the legalities/irregularities in the judgment passed by this Tribunal itself vide order dated 04.11.2011. Hence, the Tribunal declines to consider the prayers made by the Misc. Applicant in the present Misc. Application.

(xiii) The Defendants in TA/33/2002 have been served by paper publication as the regular mode of service by hand delivery and postal service became ineffective. Hence the service upon the Defendants was effective and complete. As regard the contention of

M. S. Ch the Misc. Applicant that he resigned from the Defendant No. 1 and the Defendant No. 1 released him from the service on 21.10.1991 and he has debt liability, the Respondent Bank submitted the original loan documents along with evidence on affidavit in TA/33/2002. The Respondent Bank has submitted the Agreement of Guarantee in original executed by the Defendants including the Defendant No. 4, Shri Biswanath Dutta, on 15.09.1989 to secure the loan availed by the Defendant No. 1. The Misc. Applicant has not produced any documentary evidence that he has been discharged from the debt liability by the Respondent Bank on his resignation from service from the Defendant No. 1 or his debt liability has been taken over by the other Defendants on the date of his resignation from service from the Defendant No. 1 with the consent of the Respondent Bank. The Tribunal vide judgment dated 04.11.2011 has rightly decided the debt liability of the Defendants including the Defendant No. 4, the Misc. Applicant and there is no scope of reconsideration of judgment dated 04.11.2011 as against the Misc. Applicant.

8. In view of observation and finding, the Misc. Application filed by the Misc. Applicant along with prayer for condonation of delay in filing the Misc. Application being No 21/2015 arising out of TA/33/2002 suffers from the point of maintainability.

The following order is passed

- (1) Misc. Applicant's prayer made in the MA/21/2015 for setting aside the Recovery Certificate being No. 34/2011 and striking down the name of the Misc. Applicant from the original application as well as from the decree and certificate is declined.

- (2) The prayer made by the Misc. Applicant for condonation of delay in filing the present Misc. Application being No. 21/2015 is liable to be dismissed, hence dismissed, being not maintainable.

- (3) The Misc. Application being No 21/2015 arising out of TA/33/2002 is liable to be dismissed, hence dismissed being not maintainable with no order as to cost.

- (4) The Misc. Application being no 21/2015 arising out of TA/33/2002 is accordingly disposed of.

Order pronounced in open Tribunal on this 14^th June, 2019

Copy of the order be given to the parties.

Copy of the order be sent to Recovery officer.

(M.S. Rao) Presiding Officer Kolkata DRT No. 2 14-06-2019