Debts Recovery Tribunals and Appellate Tribunals
STATE BANK OF INDIA vs Sri Anirban Dutta And Ors on 5 July 2019
**DEBTS RECOVERY TRIBUNAL-II, KOLKATA**
**Jeevan Sudha Bldg. 7th Floor, 42/C J.L.Nehru Road, Kolkata-700071**
**Before Shri Makena Srinivasa Rao, Presiding Officer**
**Token No. : 182 of 2019**
**( Arising out of O.A./53/2015)**
**In the matter of -**
State Bank of India, a body corporate constituted by and under the State Bank of India Act, 1955, having its Local Head Office at 1, Strand Road, Kolkata-700001 and carrying on their business inter alia at its Jamuria Bazar Branch, P.O. Jamuria Hat, District Burdawn, PIN-713336, West Bengal.
.....Respondent
1. 1. Sri Anirban Dutta, son of Sri Sarit Kumar Dutta, Proprietor of M/s Own Trading Unit, Village Akhalpur, P.O. Mondalpur, P.S. Jamuria, District Burdawn, PIN-713325
2. 2. Smt. Nilima Dutta, wife of Sri Sarit Kumar Dutta, Proprietor of M/s Own Trading Unit, Village Akalpur, P.O. Mondalpur, P.S. Jamuria, District Burdawn, PIN: 713325
.....Applicants
Versus
**Present:**
For Applicants : Shri Shri Somnath Saha, Learned Counsel For Respondent Bank : None appeared **Date of Order : 05.07.2019**
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**FINAL ORDER**
**(Delivered on 5<sup>th</sup> July,2019 )**
1. 1. The Misc. Applicants filed the present Misc. Application on 03.04.2019 under Section 22(2)(g) of Recovery of Debts and Bankruptcy Act, 1993 against the Respondent Bank, taking limitation/cause of action from the date of judgment/final order passed by the Tribunal dated 07.01.2019.
The Misc. Applicants have filed an application under Section 5 of the Limitation Act for condonation of delay of 56 days in filing the present MA.
1. 2. The Tribunal vide final order dated 07.01.2019 has allowed the OA being No 53/2015. The Misc. Applicants have filed the present Misc. application being aggrieved by the Tribunal's final order dated 07.01.2019 beyond limitation period. The Registry of Token No. 182/2019
the Tribunal has declined registration of the Misc. Application since the Misc. Application has been filed beyond limitation period. Hence, the Registry has allotted a Token Number to the Application and listed the matter before the Tribunal for hearing on the point of maintainability and registration.
3. The matter being Token No. 182/2019 was taken up for hearing on 18.06.2019 and heard and the matter has been reserved for order.
4. The Tribunal has disposed of the O.A. being No. 53/2015 filed under Section 19 of the RDDBFI Act vide final order dated 07.01.2019. 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 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.
5. The Misc. Applicants have not filed an Appeal against the judgment/final order dated 07.01.2019 in O.A./53/2015 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. Applicants have also avoided to prefer Appeal before Hon'ble Appellate Tribunal to avoid making pre-deposit of fifty percent of the debt amount.
6. Further, the Misc. Applicants have avoided preferring a Review Application against the judgment/final order of the Tribunal dated 07.01.2019 in O.A./53/2015 inspite of the provision of the Act for raising error and mistake in the judgment dated 07.01.2019 in O.A./53/2015. 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.
7. The Misc. Applicants have filed the present Misc. Application on 03.04.2019 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 07.01.2019 in OA/53/2015 is the judgment/final order and not any interim order or the order of dismissal of any interim application for default.
237Token No. 182/2019
8. The proceedings under Section 19 of the RDDBFI Act are the original proceedings and are like that of a suit. The RDDBFI Act is a special law. The Section 5 of the Limitation Act is applicable to the Section 19 application only being the original proceedings like that of a suit. In view of above, the Tribunal is of the view that there is an issue of maintainability of the present Misc. Application, whether the Misc. Applicants are entitled to file such Misc. Application under Section 22(g) of the Act for setting aside the judgment/final order dated 07.01.2019 in O.A./53/2015 avoiding invocation of Section 20 of the RDDBFI Act(filing of Appeal) or Rule 5A of DRT(Procedure) Rules(Review Application) if they are aggrieved by the Tribunal's final order dated 07.01.2019, whether Section 5 of the Limitation Act is available for such Misc. application, whether the Tribunal has the authority to condone the delay in filing the Misc. Application under Section 22(g) of the Act. Hence, the issue of maintainability of the Misc. Application is kept open.
9. The Registry is directed to register and number the Misc. Application.
The Token No. 182/2019 arising out of the Misc. Application stands disposed of.
10. The Misc. Applicants shall take proper steps for service of the Misc. Application along with the copy of the present order upon the Respondent Bank and file affidavit of service before the Registry of the Tribunal.
11. After completion of service, the matter be listed before the Tribunal.
Order pronounced in open Tribunal on 5<sup>th</sup> July, 2019.
Copy of the order be given to the parties.
Copy of the order be sent to the Registry of the Tribunal.
Sd/- (M.S. Rao) Presiding Officer DRT-2, Kolkata