PUNJAB NATIONAL BANK vs Mr Jeetendra Gandhi on 10 November 2020

: - O R D E R - :

The Applicants have preferred the present Review Application under Section 17(1) of RDB Act, SARFAESI Act read with Rule 5A of DRT(Procedure) Rules, to review the impugned order dated 21.08.2017 and to set aside the order dated 21.08.2017 passed by this Tribunal in TSA No.47/2017 and 2RA No.3/2020

consequently dismiss the TSA 47/2017 with costs. The applicant is the Respondent in the TSA 47/2017 preferred by the above Respondent.

2.0 Facts of the case in brief:-

2.1 The Respondent/applicant herein had filed SA No.376/2016 before DRT-I, Bangalore and the same as transferred in view of territorial jurisdiction to DRT-II Bangalore and renumbered as TSA No.47/2017. After receipt of the notice, the bank and filed statement of objection along with certain documents and on 06.10.2006 bank filed fresh set of eight documents along with a list and sought for dismissal of the Appeal. The appeal came to be allowed observing that the list of document is not marked and allowed the SA on 21.08.2017.

2.2 Aggrieved by the said final order dated 21.08.2017, the applicant bank has preferred present Review Application for reconsidering the order, as the Applicant bank has produced the documents relied upon by them at the time of argument, but the same was not marked citing negligence in conducting the case.

2.3 It is submitted that the non marking of the documents in the Appeal is not intentional, the Applicant believed that in the 3RA No.3/2020

appeal there is no recording of evidence, hence list with documents are sufficient. Thus the Applicant along with the present appeal has produced all the documents relied upon by them and prays to take into record, while passing order in the present Review Application.

2.4 Further the Applicant bank submits that non marking of documents may not be fatal for deciding the appeal, however now all the documents are marked and produced before this Tribunal, same be mistake and can be rectified by reviewing the order in the interest of justice. The documents produced by the applicant in the present RA may kindly be taken into record and order dated 21.08.2017 may kindly be reviewed. Hence the present Review Application before this Tribunal.

3.0 The Respondent has filed his Statement of Objections inter alia contending that the Applicant Bank has not filed the Review Application within 30 days from the date of order. The Applicant has not filed any application to condone the delay. On this ground alone, the Review Application must be dismissed with exemplary costs.

3.1 This Respondent further submits that the Applicant Bank have not till date submitted a copy of photographs 4RA No.3/2020

evidencing the Affixture, either the Auction Sale Notice or the Possession Notice, but have submitted other documents, that too after disposal of the SA and as an after though, which is not permissible in the eye of law.

3.2 The Applicant Bank instead of preferring the appeal against the impugned order before the appropriate appellate authorities, have chosen to prefer this Review Application, which is nothing, but abuse of process of law, which has to be dismissed with exemplary costs.

4.0 During the course of the proceedings, the Applicant has filed IA No.1118/2018 for condonation of delay of six days in filing the present Review Application. In the IA it is contended that the present Application was filed for review of the said order dated 27.09.2017, but ought to have been filed within 30 days from the date of the order i.e. 21.08.2017.

4.1 It is submitted in the affidavit that he was suffering from viral fever during the third week of September, 2017 and could not attend his office and he was not aware of the amendment of the Act by reducing the period from 60 to 30 days hence prays to condone the delay by way of the present IA No.1118/2018.

5.0 Heard the arguments of Ld. Counsels for both sides 5RA No.3/2020

and perused the available records.

6.0 It is evident that the Respondent has preferred SA No.376/2016 before DRT-I, Bangalore and the same was transferred to DRT-II, Bangalore vide DFS Notification on the point of jurisdiction. After hearing the submissions of the Ld. Counsels for both sides and perusing the records, it reveals that my predecessor has passed a detailed and considerate order in the TSA No.47/2017 on 21.08.2017, allowing the SA and setting aside the Possession Notice dated 10.06.2016 citing statutory deficiencies such as non-filing of proof of affixture of Possession Notice, proof of paper publication, affixture and valuation reports.

6.1 Aggrieved by the said final order dated 21.08.2017, the bank has preferred present Review Application for reconsidering the order, but with a delay of six days in filing the Review Application. Further, it is seen from records that the documents relied upon by bank at the time of argument, were not marked citing negligence in conducting the case. However, the contention of the applicant that the non marking of the documents in the Appeal is not intentional, as in the appeal there is no recording of evidence, hence list with documents are sufficient.

6.2 The core issue for consideration before this Tribunal is whether the final order dated 21.08.2017 passed by this Tribunal 6RA No.3/2020

in the TSA No.47/2017 on can be rectified/modified by taking into consideration the documents filed by the applicant bank along with the present Review Application needs/requires for a review when the matter is disposed of?

6.3 The provision to review the order of the Tribunal is enumerated in S.22(2)(e) of the Recovery of Debts due to Banks and Financial Institutions Act,1993 read with Rule 5-A of the Debts Recovery Tribunal[Procedure] Rule,1993.

6.4 A careful reading of sub-section (2) of S.22 of the Act will clearly show that grounds for review mentioned in O.47 R.1 of the Code are available to a review petitioner before the Tribunal. But sub-rule (1) of R.5-A of the Rules conveys that the Tribunal shall have power to review its own orders only on one ground namely, some mistake or error apparent on the face of record for review under R.5-A of the Rules, For proper appreciation of facts, Section 5A in The Debts Recovery Tribunal (Procedure) Rules, 1993is extracted which reads as follows:- "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 face of the record desires to obtain a review of the order made*

7RA No.3/2020

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 2[but where the Tribunal is of opinion that the application] for review shall be granted, it 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.]"*

6.5 It is evident from the records, the Tribunal has passed a well-considered order based on the documents made available on merits on 21.08.2017, allowing the SA and setting aside the Possession Notice dated 10.06.2016 citing statutory deficiencies such as non filing of proof of affixture of Possession Notice, proof of paper publication, affixture and valuation reports by my predecessor. Therefore, my predecessor has passed a detailed order considering all the aspects in accordance with law.

6.6 Further, this Tribunal relies upon the judgment in the matter of AribamTuleshwar Sharma v. AribamPishak Sharma [reported in AIR 1979 SC 1047] the Hon'ble Supreme Court has 8RA No.3/2020

held that there are definite limits to the exercise of power of review and it reads thus:- *"It is true as observed by this court in Shivdeo Singhi v State of Punjab there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court".*

6.7 There is absolutely nothing on record to show that in the impugned final order there is no mistake or error apparent on the face of the order. As pointed out in the final order there were statutory deficiencies citing negligence in conducting the case, the Bank has not filed any supporting documents to prove its case countering/refuting the grounds raised by the Applicant in the TSA; also in the grounds of Appeal at Para-6(5) of the Review Application, the Applicant Bank has admitted that the documents are not marked and the same is a mistake, can be rectified by reviewing the final order. It is not the case of the bank that after 9RA No.3/2020

exercise of due diligence, the Applicant Bank in the TSA could not produce and mark the documents against the grounds raised by the borrower at the time when the matter was adjudicated or when order was passed by my predecessor. Therefore as per Rule 5A, there is no error made out in the order.

6.8 Under these circumstances, in view of the principles laid down by the Hon'ble Supreme Court in the decisions referred supra, the Tribunal is of the view that present Review application is not at maintainable either in law or on facts and that the grounds raised does not merit for review the final order dated 21.08.2017. Hence, Review application in RA No.3/2020 filed by the applicants in the TSA.No.47/2017 deserves to be dismissed.

6.9 On a further perusal of the records it is clearly reveals the fact that the present Review Application No.3/2030 (SR No.9799/2017, D.No.10920/2017) is filed on 27.09.2017, whereas the order in TSA No.47/2017 was passed by this Tribunal is on 21.08.2017, which is enclosed as Annexure A at Page 14 of the Review Application. The Applicant Bank has preferred the present Review Application with delay, but after realizing that there is a delay, filed IA No.1118/2018 to condone the delay of six days in filing the present Review Application subsequently during the course of the proceedings.

10RA No.3/2020

6.10 As per Rule 5A(2) of DRT(Procedure) Rules, prescribes that, *"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."*

6.11 On this ground the present application is not maintainable as per law and liable to be dismissed. Further, Rule 5A of the Debts Recovery Tribunal (Procedure) Rules 1993 (DRT Rules) prescribes a 30 day limitation period for filing of a review application and in the instant case the Review Application is being filed with a delay is 6 days by the Applicant.

6.12 In this regard this Tribunal relies on the Judgement of Hon'ble Supreme Court delivered on 21.01.2020 in the case titled *Standard Chartered Bank v MSTC Limited* [SLP (C) No 20093 of 2019], which clarified the interplay between the provisions of Recovery of Debts and Bankruptcy Act 1993 (RDB Act) and Limitation Act 1963 (Limitation Act). The Hon'ble Supreme Court in the aforesaid Judgement has held that:- *"14) The peremptory language of Rule 5A would also make it clear that beyond 30 days there is no power to condone delay. We may also note that Rule 5A was added in 1997 with a longer period within which to file a review petition, namely, 60 days. This period was cut down, by amendment, with effect from 04.11.2016, to 30 days. From this two things are clear: one, whether in the original*

11RA No.3/2020

*or unamended provision, there is no separate power to condone delay, as is contained in Section 20(3) of the Act; and second, that the period of 60 days was considered too long and cut down to 30 days thereby evincing an intention that review petitions, if they are to be filed, should be within a shorter period of limitation – otherwise they would not be maintainable."*

6.13 The Tribunal relying upon the judgments of the Hon'ble Apex Court concludes that the applicant has not made a case for review as there is no error on the face of the records as given under Rule 5A(1)(2) of DRT(Procedure) Rules 1993; further the present RA is filed with a delay of 6 days and it is settled position that the Tribunal has no power to condone the delay in filing the Review under Rule 5[5A]; hence, the review application is only to be dismissed. For the foregoing discussion of facts and the applicability of Act and Rules, the present Review Application No.3/2020 (D.No.10920/2017) is dismissed.

7.0 RA 3/2020(D.No.10920/2017) is dismissed. No order as to costs.

(Dictated to the PS(PJ), after its transcription and necessary corrections, signed and pronounced by me in the Open Court on this 10^th Day of November, 2020)

**Sd/-** **Presiding Officer** DRT-II, Bangalore

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