Mrs Tanushree Bose vs PUNJAB NATIONAL BANK on 14 June 2019

**FINAL ORDER**

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

1. The Applicant, Tanushree Bose filed the present Review Application being No. 01/2011 arising out of TA/264/2001 on 16.08.2011 under Section 22(e) of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, against the Respondent Bank, Punjab National Bank, taking limitation/cause of action from the Recovery Certificate dated 13.11.2009 in TA/264/2001 and Recovery Notice dated 28.02.2011 issued by the Learned Recovery Officer in RC being No. 52 of 2009, praying for withdrawal of the Recovery Certificate dated 13.11.2009/03.11.2009 passed in TA/264/2001, passing order that the Applicant is not liable to make any payment, passing order for rehearing of the TA/264/2001.

The Applicant has filed an application on 13.12.2012 for condonation of delay of 591 days in filing the RA being No. 01/2011 arising out of TA/264/2001 under Section 24 of the RDDBFI Act read with Section 5 of the Limitation Act.

2. The Respondent Bank has filed written objection to the RA being No. 01/2011 on 20.12.2011. The Respondent Bank has filed written objection to the application filed by the Applicant under Section 5 of the Limitation Act for condonation of delay.

3. The Applicant has filed reply to the written objection filed by the Respondent Bank on 06.08.2012. Shri Aninda Bose, son of Smt. Tanusree Bose, representing Smt.

Tanusree Bose, the Review Applicant has also filed supplementary affidavit on 23.07.2018

4. The Applicant has filed written notes of argument. The Respondent Bank has also filed written notes of argument.

5. The matter was taken up for hearing on 15.12.2017. Learned Counsel for Respondent Bank raised the issue of maintainability of the present RA vide Tribunal's order dated 15.12.2017. The Respondent Bank has also raised the issue of maintainability of the RA in the written objection to the application filed by the Applicant under Section 5 of the Limitation Act. The Respondent Bank has contended that the judgment has been passed by the Tribunal on 03.11.2009 and no Appeal has been preferred by the Applicant, the Recovery Certificate is binding upon the Applicant. The Applicant has filed the present Review Application after lapse of two years and has filed an application for condonation of delay after lapse of one and half years from the date of filing of the Review Application. The Respondent Bank has contended that the RA is not maintainable.

6. Before going into the merits of the case, preliminary issue of maintainability of the present RA being No. 01/2011 needs to be decided at the outset since the present RA has been filed beyond limitation period inspite of filing an application for condonation of delay. The observation and finding of the Tribunal as regard the issue of the maintainability of the RA being No 01/2011 are as under :

(i) The Respondent Bank filed the Original Application being No. 131/2000 under Section 19 of the RDDBF1 Act against Mrs. Tanushree Bose before Learned Debts Recovery Tribunal -1, Kolkata. The O.A./131/2000 has been transferred to Debts Recovery Tribunal No.2, Kolkata, and has been renumbered as TA/264/2001. The Tribunal vide judgment dated 03.11.2009 disposed of the TA/264/2001 and allowed the claim of the Applicant Bank for recovery of Rs. 41,61,521=00 and further interest @ 16.30% p.a. with quarterly rest from 01.04.2000. The Tribunal issued the Recovery Certificate being No. 52/2009 dated 13.11.2009. Mrs. Tanushree Bose has been decided as the certificate debtor vide Recovery Certificate No. 52/2009. Learned Recovery Officer initiated the recovery proceedings in RC/52/2009. The Review Applicant has acknowledged the receipt of the Recovery Notice dated 28.02.2011.

(ii) The Applicant has not preferred any Appeal being aggrieved by the judgment dated 03.11.2009 before any higher judicial forum. The Applicant has filed the present Review Application being No. 01/2011 on 16.08.2011 being aggrieved by the judgment dated 03.11.2009 in TA/01/2011. The Applicant filed an application on 13.12.2012 after lapse of one and half year from the date of filing of the Review Application being No. 01/2011 under Section 5 of limitation Act for condonation of delay of 591 days. Hence, the preliminary issue of maintainability of the RA arises and the Tribunal holds the view that the preliminary issue of maintainability of the Review Application has to be decided by the Tribunal at the outset before going into the merits of the RA/01/2011.

(iii) For filing Review Application, Section 5A of Debts Recovery Tribunal(Procedure) Rules provides an opportunity to the aggrieved party. As per Section 5A of 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 of error apparent on the fact 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.*" Before amendment of the RDDBFI Act and Rules made thereunder on 03.11.2016, the period of limitation the provision for filing Review Application vide Section 5A of Debts Recovery Tribunal(Procedure) Rules, 1993 is that "No application for review shall be made after the expiry of a period of sixty days from the date of the order and no such application shall be entertained unless it is accompanied by an affidavit verifying the application." The Review Application being No. 01/2011 has been filed beyond sixty days from the date of judgment dated 03.11.2009. Hence, the Review Application being No. 01.2011 suffers from the point of maintainability for lack of jurisdiction.

(iv) On careful perusal of the Section 5A – Review- of the Debts Recovery Tribunal(Procedure) Rules,1993, the words "shall be" has been specifically inserted in the provision by the Legislature. Hence, there is an issue whether the aggrieved party is entitled to file Review Application beyond limitation period and whether the Tribunal is vested with power to condone delay in filing the Review Application in spite of specific stipulation of the words "shall be". The RDDBFI Act is a special Act, enacted for speedy recovery of the dues of the Banks and Financial Institutions. For invocation of the provisions of the RDDBFI Act and the Rules made thereunder, the compliance of stipulation of limitation period is mandatory. In view of specific provision of the Act, the Tribunal is of the view that the aggrieved party is not entitled to invoke Section 5A – Review- of Debts Recovery Tribunal(Procedure) Rules, 1993 beyond limitation period. The Tribunal holds the view the Tribunal is not vested with power to condone delay in filing Review Application beyond limitation period. The application of Section 5 of the Limitation Act 1963 therefore does not arise in invoking Section 5A-Review- of Debts Recovery Tribunal(procedure) Rules, 1993.

(v) On the abovesaid observation of the Tribunal in respect of application of Section 5 of Limitation Act, the Tribunal relies upon the decision of the **Hon'ble Supreme**

Court of India. The 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 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) has held 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."

(vi) The Review Applicant has pleaded in the application there is a pending case before the CBI Court in connection with Spl. Case No. 15 of 1999 under Section 120B/420/468/471 of IPC and 13(2) read with 13(1) (d) of prevention of Corruption Act, pending before Learned Judge, 1^st Spl. Court, Alipore, copy of orders are annexed to the Application. The case pending before CBI Court is independent proceedings in independent judicial forum. The Tribunal makes it clear that the present order does not have any bearing upon the pending case before the CBI Court.

(vii) In view of abovesaid observation and finding, the application filed by the Review Applicant in RA/01/2011 under Section 5 of the Limitation Act, 1963 for condonation of delay of 591 days in filing the Review Application being RA/01/2011 suffers from the point of maintainability and is liable to be dismissed and the RA being No. 01/2011 shall be accordingly disposed of.

7. The following order is passed:

1. (1) The Application filed by the Review Applicant on 13.12.2012 for condonation of delay of 591 days in filing the Review Application being No. 01/2011 is liable to be dismissed, hence dismissed.

2. (2) The Review Application being No. 01/2011 being a time barred application is liable to be dismissed, hence dismissed, no order as to cost.

3. (3) There remains restraint order remains in the Recovery Proceedings.

4. (4) The present order of the Tribunal shall have no bearing upon the CBI Court case or any suit pending before any judicial forum/investigative body or before any other forum.

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 the Learned Recovery Officer File be consigned to Record Room.

(M.S. Rao) Presiding Officer Kolkata DRT No. 2

*M. S. Rao* 14-06-2019