Sri Nagendra Nath Samanta Samanta vs STATE BANK OF INDIA on 14 June 2019

**FINAL ORDER**

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

1. 1. Applicant, Nagendra Nath Samanta, filed the present Misc. Application being No. 49/2018 on 10.09.2018 under Section 22G of Recovery of Debts & Bankruptcy Act, 1993 against the Respondent Bank, praying for recalling the judgment and order dated 12.01.2018 passed by DRT-2, Kolkata, expunging the name of the Applicant from the *M. Rao*

proceeding being O.A./1381/2010 and RC/10/2018, staying further proceedings in RC/10/2018 pending before Learned Recovery Officer.

The Misc. Applicant has filed an application for condonation of delay of 165 days in filing the application for recalling of the order dated 30.01.2018 passed by the Tribunal.

2. The brief facts of the Applicant's case are that :

- (i) The Misc. Applicant is a aged person of 76 years old and since 2008 he has not been associated with the Organization.

- (ii) The Defendant No. 2 at the request of the Defendant No. 2, became the President of the Deriachak Vidyasagar Social Welfare Organization. The Misc. Applicant without checking the documents signed on several documents during his tenure in the Organization as the president relied upon the assurance of the Defendant No. 2 and continued with the Organization till 2007. During his tenure, in fact the entire working of the Organization was looked after by the Defendant No. 2.

- (iii) The Misc. Applicant resigned from the post of President of the Organization and the Organization accepted his accepted his resignation. One Shri Basudeb Saha inducted as the President of the Organization as may be evident from the books of account for the financial year 2009.

- (iv) The Misc. Applicant cannot be held responsible in any way for the financial liability extended to the Deriachak Vidyasagar Social Welfare Organization.

- (v) The Misc. Applicant has never been served with the copy of the O.A./1381/2010

- (vi) The Misc. Applicant for the first time came to know of the proceedings for the first time when he received a letter of the Recovery Officer, DRT-2 Kolkata vide he was directed to appear on 11.05.2018.

- (vii) After getting the certified copies of the record of O.A./1381/2010, the Misc. Applicant came to know that the Misc. Applicant suffered ex parte order of DRT-2, Kolkata vide judgment and order dated 12.01.2018 in O.A./1381/2010.

- (viii) The address of the Misc. Applicant as given in the cause title of the O.A. is not the residential address of the Misc. Applicant but the address of Deriachak Vidyasagar Social Welfare Organization.

- (ix) The instant proceeding suffers from non-joinder of necessary party as the Misc. Applicant was in no way related with the Deriachak Vidyasagar Social Welfare Organization when the liability arose. The incumbent President ought to have been made a party to the proceeding and not the present Misc. Applicant.

3. The Misc. Applicant has pleaded in the application filed for condonation of the delay that :

(i) The Misc. Applicant contacted Learned Advocate on 10.04.2018 and requested to take steps. Learned Advocate appeared before the Recovery Officer, DRT-2, Kolkata and undertook to file Vakalatnama. Learned Advocate deposited fees for filing Vakalatnama with the Department on 26.04.2018.

(ii) Learned Advocate inspected the O.A./1381/2010 records on 26.04.2018 and found that summons of the proceedings of O.A./1381/2010 was not served upon the Misc. Applicant and the copy of the O.A. could not be received by the Misc. Applicant. The Learned Advocate received the copy of the case records of O.A./1381/2010 on 31.05.2016. The Misc. Applicant handed over few relevant documents found from his residence to the Advocate on 30.06.2018. The Advocate of the Misc. Applicant misplaced the documents in his Chamber and hence the recall application and condonation application could not be filed expeditiously. On 09.08.2018, the Advocate found out the misplaced documents and filed the present Misc. Application. In the meantime, there is a delay of 166 days. The Misc. Applicant has filed the application for condonation of delay of 165 days in filing the present Misc. Application for recall of the order dated 30.01.2018 passed by the Tribunal.

4. The Misc. Applicant has also filed an affidavit on 26.11.2018. The Misc. Applicant has pleaded in the said affidavit that he did not receive the summons and paper book of O.A./1381/2010 since those papers and documents were not sent to his residential address but reportedly sent to the address of Deriachak Vidyasagar Social Welfare Organization. Learned Registrar vide order dated 23.07.2013 considered completion of service by hand delivery as well as by post by recording that one Shri Susanta Midya, staff had accepted the summons along with O.A. for both the Defendants by putting his signature and office seal on their behalf and there was no record of returning of registered post item from the postal authorities though the Misc. Applicant has not authorized Shri Susanta Midya to act on his behalf. The Misc. Applicant did not receive the summons and paper book either from Shri Susanta Midya or Deriachak Vidyasagar Social Welfare Organization. It is not on record that the Tribunal received the acknowledgment due card of regd. Post from the postal authorities. The Tribunal vide order dated 23.11.2015 directed the Applicant Bank to serve the copy of the order upon the Defendants by regd. Post/speed post and to file compliance report on the next date of hearing fixed on 22.02.2016. There was no record of compliance of the said order by the Applicant Bank. The Tribunal vide order dated 03.01.2018 observed that the copy of evidence on affidavit has been served upon the Defendant No. 2 but there is no service of copy of evidence on affidavit upon the Defendant No. 1

The Misc. Applicant has pleaded that Deriachak Vidyasagar Social Welfare Organization, a juristic person, availed loan from the Applicant Bank in the year 2006 but the said Organization was not a party as a Defendant in the Section 19 Application. The Defendant Nos. 1 and 2 who signed certain printed documents for Deriachak Vidyasagar Social Welfare Organization in the capacity of President and Secretary, signing of the Articles of Agreement and Agreement for Hypothecation on 29.03.2006 were not the valid documents for fixing personal liability of the Defendants. An affidavit executed by Defendant No. 2 on 23.03.2006 to create mortgage of immovable property of Deriachak Vidyasagar Social Welfare Organization was not a valid documents for creation of mortgage by deposit of title deeds, therefore, the immovable properties were not enforceable.

The Misc. Applicant has not executed any personal guarantee to secure the loan availed by Deriachak Vidyasagar Social Welfare Organization from the Applicant Bank as is evident from the evidence on affidavit filed by the Applicant Bank.

The Revival Letter has not been executed by the Treasurer and Secretary without relying upon any authority from Deriachak Vidyasagar Social Welfare Organization. The Defendant Nos. 1 and 2 have not executed the Revival Letter. Hence, this document cannot be relied upon by the Applicant Bank for extension of period of limitation to fix liability of the Defendant Nos. 1 and 2.

The Misc. Applicant has mentioned the list of dates for delay in filing the present Misc. Application. The Misc. Applicant has prayed for condonation of delay of 174 days considering the sufficient cause explained in the affidavit and setting the final order dated 12.01.2018, giving liberty to file written statement and evidence on affidavit for the ends of justice.

5. The Respondent Bank has filed affidavit in opposition to the application for condonation of delay in filing the present MA. The Respondent Bank has pleaded in the opposition that :

(i) The present MA is not maintainable for the reasons that the present MA has been filed by Sri Nagendra Nath Samanta in his personal capacity and the O.A./1381/2010 has not been filed against him personally. The Misc. Applicant being the President of Deriachak Vidyasagar Social Welfare Organization was imleaded in his official capacity representing the borrower Deriachak Vidyasagar Social Welfare Organization. No claim was made personally against him in the O.A./1381/2010. The Applicant Bank has no claim personally against the President and Secretary of Deriachak Vidyasagar Social Welfare Organization and has all the claim against the borrower, Deriachak Vidyasagar Social Welfare Organization. The Tribunal vide its final order dated 12.01.2018 has specifically stated that the Defendants in the capacity of President and Secretary representing the said Deriachak Vidyasagar Social Welfare Organization executed security documents.

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MA/19/2018

(ii) As regard the contention of the Misc. Applicant for non-service of summons upon the Misc. Applicant, the Respondent Bank has pleaded that the summons were sent by Speed Post to the Defendants as well as was served by hand service in the office of said Organization on 15.05.2013. The service was accepted and recorded by the Registrar of the Tribunal vide order dated 23.07.2013. One Atiur Rahaman Khan(Avocate) served a copy of written statement vide his letter dated 17.02.2016 addressed to the Advocate of the Applicant Bank. The written statement was intended to be filed for both the Defendants, copy annexed to the affidavit in opposition.

(iii) The O.A. /1381/2010 was heard by the Tribunal on 23.11.2015 when none of the Defendants was present. The Defendants did not file written statement. Last opportunity was given by the Tribunal to the Defendants to file written statement. The matter was taken up for hearing on 23.11.2015. The Applicant Bank was directed to serve the copy of the order dated 23.11.2015 upon the Defendants. The Applicant Bank has served the copy of the order dated 23.11.2015 and has filed the affidavit of service confirming service of the copy of the order dated 23.11.2015 in the respective address of the two Defendants, postal receipts annexed. The affidavit is affirmed on 17.02.2016/17.02.2016. The Applicant Bank has served the copy of evidence on affidavit upon the Defendants, acknowledged by Mr. A.R. Khan, Advocate. The copy of Applicant Bank's Advocate letter dated 06.02.2017 sending the copy of the evidence on affidavit is annexed to the affidavit in opposition. The Misc. Applicant was the President of Deriachak Vidyasagar Social Welfare Organization and hence the service was made in the office of Deriachak Vidyasagar Social Welfare Organization, the borrower, and it tantamount to service on the Misc. Applicant in his personal capacity. There was no need to serve personally on the Misc. Applicant as in his personal capacity he was not the borrower.

(iv) The grounds for delay 174 days taken by the Misc. Applicant for filing the present MA, relating to the illness and misplacing of the papers by the Advocate of the Misc. Applicant in filing the present MA are not tenable. The Misc. Applicant never gave his residential address to the Applicant Bank. The Misc. Applicant was aware of all the developments of the O.A. as the notices were served in the recorded address with the Applicant Bank being the address of the borrower. The summons and paper books of the O.A. were duly served at the office of the borrower which was represented by the Misc. Applicant. It was not necessary to serve the summons and paper books at the residential address of the Misc. Applicant since he was representing the borrower, the notices were duly received at the office of the borrower.

(v) The Tribunal's order dated 23.11.2015 was complied with, only the affidavit was not brought on record. The post of Hon'ble Presiding Officer of the Tribunal was vacant for a long time. The copy of the evidence on affidavit was served upon Mr. Ariur Rahaman Khan, Advocate representing the borrower as well as both the Defendants.

(vi) The Respondent Bank has pleaded that there is no sufficient ground for condonation of delay and has prayed for dismissal of the MA being No. 49 of 2018.

6. I have heard the Learned Counsel for the parties and gone through the pleadings made in the SA and the papers and documents annexed to the SA. The observation and finding of the Tribunal are as under:

(i) The Respondent Bank filed the O.A. being No. 1381/2010 on 21.10.2010 against Shri Nagendra Nath Samanta, President, Shri Sudip Sakha Midya, Secretary of Deriachak Vidyasagar Social Welfare Organization. Vide order dated 23.07.2013 of Learned Registrar of the Tribunal, Mr. Atiur Rahaman Khan appeared for the Defendant No. 2, Shri Sudip Sakha Midya, and filed Vakalatnama. Mr. Atiur Rahaman Khan, Advocate for the Defendant No. 2 acknowledged the receipt of the copy of the O.A. on 23.07.2013 putting his signature on the Paper Book of O.A. of the Tribunal. The matter was taken by the Tribunal for hearing on 03.01.2018. None appeared for the Defendants and hence, the Defendants have been set ex parte.

(ii) The Tribunal passed the Judgment/Final Order on 12.01.2018 in O.A./1381/2010 and accordingly allowed claimed of mortgage made by the Applicant Bank in respect of the properties in the name of Deriachak Vidyasagar Social Welfare Organization. The Tribunal has issued Recovery Certificate being No. 10/2018 against the Defendants and the Recovery Proceedings are pending. The Misc. Applicant has admitted receipt of the notice of the Learned Recovery Officer for appearance in the recovery proceedings. Hence, the Misc. Applicant has the knowledge of the Recovery Proceedings in O.A./1381.2010.

(iii) In view of passing of judgment/final order in O.A./1381/2010, there is no existence of the O.A./ 1381/2010. The Misc. Applicant has filed the Misc. Application being No. 49/2018 in the disposed of and non-existing O.A., contending the illegalities/irregularities in the O.A. proceedings and has prayed for setting aside the final order dated 12.01.2018, 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 O.A. filed under Section 19 of 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 avoided preferring an Appeal against the final order of the Tribunal dated 12.01.2018 in O.A./1381/2010 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 and to file the Misc. Application before the Tribunal and thus avoided make 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."

(vii) The Misc. Applicant has avoided preferring an Review Application against the final order of the Tribunal dated 12.01.2018 in O.A./1381/2010 inspite of the provision of the Act for raising error and mistake in the Final Order dated 12.01.2018 in O.A./1381/2010. Preferring of Review Application beyond limitation period of thirty days from the date of the final order dated 12.01.2018 invites 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.

(viii) The Misc. Applicant has filed the present Misc. Application being No 49/2018 on 10.09.2018 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 12.01.2018 in O.A./1381/2010 is the judgment/final order and not the order of dismissal of the application for default. The order dated 12.01.2018 is also not the ex parte order passed by the Tribunal during pendency of the O.A. against any party/application in the O.A. The Misc. Applicant has filed the present Misc. Application being No 49/2018 along with application for condonation of delay.

(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 12.01.2018 in O.A./1381/2010 instead of invoking Section 20 of the Act or Rule 5A of DRT(Procedure) Rules if he is aggrieved by the final order dated 12.01.2018, 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 O.A. Once the O.A. filed 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 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

29. "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 Application filed by the Misc. Applicant for condonation of delay of 174 days in filing the present Misc. Application being No 49/2018, 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 several factual and legal issues, mainly contending that 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 O.A./1381/2010 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 final order dated 12.01.2018. This Tribunal is not inclined to examine the legalities/irregularities in the judgment/final order passed by this Tribunal itself vide order dated 12.01.2018. Hence, the Tribunal declines to consider the prayer made by the Misc. Applicant in the present Misc. Application.

(xiii) The Tribunal has noted the statement of the Respondent Bank made in the affidavit in opposition that the Misc. Applicant has executed documents and loan documents in the capacity of President of the Deriachak Vidyasagar Social Welfare Organization. The Misc. Applicant on affidavit has declared in his affidavit filed on 26.11.2018 that he has not executed any personal guarantee to secure the loan availed by Deriachak Vidyasagar Social Welfare Organization. The Tribunal has noted the statement of the Misc. Applicant that he is 76 years old, suffering from various ailments for a long time. In view of above statement of both the Misc. Applicant and Respondent Bank, the

Tribunal deems it fit that the Misc. Applicant deserves certain protection from the Tribunal inspite of the fact that the Misc. Application suffers from the issue of maintainability.

7. In view of observation and finding, the Application filed by the Misc., Application for condonation of delay of 174 days in filing the Misc. Application being No 49/2018 arising out of O.A./1381/2010 suffers from the point of maintainability. Accordingly the MA being No 49/2018 arising out of O.A./1381/2010 also suffers from the point of maintainability. The following order is passed :

1. (1) The Application filed by the Misc. Applicant for condonation of delay of 174 days is liable to be dismissed, hence dismissed, being not maintainable.

2. (2) The Misc. Application being No 49/2018 arising out of O.A./1381/2010 is liable to be dismissed, hence dismissed being not maintainable with no order as to cost.

3. (3) Learned Recovery Officer is directed not to take any further step as against the Certificate Debtor, Shri Nagendra Nath Samanta without leave of the Tribunal.

4. (4) Learned Recovery Officer is directed to take steps as against the mortgage property in the name of Deriachak Vidyasagar Social Welfare Organization for recovery of the dues of the Certificate Holder Bank at the outset.

5. (5) Misc. Applicant's prayers made in the MA/49/2018 for recall of the judgment/final order dated 12.01.2018 in O.A./1381/201, expunging the name of the Misc. Applicant from the O.A./1381/2010 and RC/10/2018, order for stay of proceedings in RC/10/2018 are declined.

6. (6) The Misc. Application being no 49/2018 arising out of O.A./1381/2010 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) 14-06-2019

Presiding Officer Kolkata DRT No. 2