BANK OF BARODA vs S.S. MURUGESAN on 26 April 2023

1. S S Murugesan, S/o Sengoda Gound C/o SSM Poultry Fa Sevagoundanpalaya Thanathampatti, Ko Namakkal taluk, Na

2. V Sengoda Gounder S/o Vadivel C/o SSM Poultry Fa Sevagoundanpalaya Thanathampatti, Ko Namakkal taluk, Na

3. M Poongudi W/o Murugesan C/o SSM Poultry Fa Sevagoundanpalaya Thanathampatti, Ko Namakkal taluk, Na

1. The Bank of Baroda Namakkal Branch Paramathi Road, Na

DEBTS RECOVERY TRIBUNAL COIMBATORE SENT: SHRI G PREMKUMAR. REGISTRAR Dated: 26TH APRIL 2023

2/2022, IA TRC Diary No.73/2022, M /2023 & MA Diary No.246/2023 IN TA 412 OF 2020 OA No.315 of 2011 of DRT, Madurai)

der arm am olathupalayam post amakkal district r arm am olathupalayam post amakkal district arm am olathupalayam post amakkal district .… Petiti Defen Vs. a amakkal .…. Resp Appl MA Diary ioners/ ndants pondent/ licant Bank

2. Sekar S/o Kaliannan 15E, Arunachala Street S P Puthur, Namakkal ….. Respondent/ Auction Purchaser

ORDER PASSED UNDER RULE 5 (4) OF DEBTS RECOVERY TRIBUNAL (PROCEDURE) RULES, 1993

The Petitioners initially filed IA TRC Diary No.73/2022 i.e. Petition under Order 21 Rule 89 of Code of Civil Procedure (ie.Application to set sale on deposit of decree debt) to set aside sale conducted on 21.07.2016 by the Recovery Officer along with IA TRC Diary No.72/2022 ie. Stay Petition under Sec.151 of Code of Civil Procedure.

Registry vide proceedings dated 03.01.2023 raised the following objections and returned the said IAs.

1. Certified copy of the order impugned to be produced.

2. As per Section 34, RDB Act is having overriding effect over any other law for the time being in force, including Code of Civil Procedure. Hence maintainability of the Petition under O21 R89 CPC before the Tribunal to be clarified.

3. Against the order passed by the Recovery Officer only an Appeal under Sec.30 of the RDB Act is maintainable and deposit of amount as stipulated under Sec.30A to be made.

4. Even through application is filed quoting O 21 R 89 CPC, Applicant has not produced proof of mandatory deposit of amount as stipulated in the said provision.

5. Limitation for filing Application under O21 R89 CPC is 60 days from the date of sale as per Article 127 of Limitation Act. Date of sale is mentioned as 21.07.2016 and hence the application is time barred

6. As per Sec. 5 of the Limitation Act, said provisions are not applicable to proceedings under Order 21 of CPC. Hence the present Application filed under O21 R89 CPC cannot be entertained after expiry of the prescribed period of limitation of 60 days.

Said IAs were represented on 06.01.2023 with the clarifications/ Remarks, which in brief are as under:-

1. Certified copy of the Order to be produced at the time of trial.

2. The entire proceedings are not under SARAFESI Act and Petition is maintainable under Order 21 Rule 89 CPC.

3. In the order of DRAT dated 18.01.2018 in MA 06/2017, it is mentioned that Petitioner has paid Rs.63.42 Lakhs with DRAT as pre deposit.

Originally the IAs were filed before the Recovery Officer and hence TRC Diary No.s were given. But prayer was made to DRT not Recovery Officer. After representation, the same were corrected to be presented before the Debts Recovery Tribunal.

Since the defects were not rectified, matter was placed before Hon’ble Presiding Officer and TA was listed on 23.01.2023, 02.02.2023, 15.02.2023 & 14.03.2023 before the Hon’ble Presiding Officer. However, there was no representation for the Petitioners.

Hon’ble Presiding Officer vide Order dated 20.04.2023 directed the Registrar to pass an order under Rule 5 (4) of Debts Recovery Tribunal (Procedure) Rules, 1993.

Meantime Petitioner filed two more IAs seeking very same reliefs ie. IA Diary No.246/2023 ie. Petition to set aside sale conducted on 21.07.2016 along with IA Diary No.245/2023 ie. Stay Petition. Since the said IAs are filed for the very same purpose for which previous IAs were filed, all are taken together for consideration.

The Rule 5 (4) of the Debts Recovery Tribunal (Procedure) Rules, 1993 provides that if the concerned applicant fails to rectify the defect within the time allowed, the Registrar may by order and for reasons to be recorded in writing, decline to register the application. The said order is appealable under Rule 5 (5) of the Debts Recovery Tribunal (Procedure) Rules, 1993.

Further Hon’ble High Court of Madras in the judgement dated 16.07.2021 in Selvaraj Vs Koodankulam Nuclear Power Plant India Ltd (CRP(MD) Nos.915, 943, 967, 991 & 330 of 2020) discussed the Kurakula process of scrutiny of plaint at the preliminary, preregistration stage and held that “…29. To sum up, the Court may reject the plaint before numbering and entering it in the Register of Suits, if from a reading of the plaint, it is seen that the suit is barred by any law, or if it suffers from any procedural infirmity, adumbrated supra….”

In the light of above, the matter is examined and it is observed that

1. Petitioners has not produced certified copy of the order/ proceedings which is impugned. The same is a primary document mandatorily required for deciding the issue involved and in spite of providing an opportunity, Petitioner did not produce the said document.

2. Against the Order passed by the Recovery Officer, only an appeal is maintainable as provided in Sec.30 of the Recovery of Debts and Bankruptcy Act, 1993.

3. Further Appellant is required to make mandatory deposit as stipulated in Sec.30A which specifically provides that “….Such appeal shall not be entertained by the Tribunal unless such person has deposited with the Tribunal fifty per cent. of the amount of debt due as determined by the Tribunal…”. No such deposit was made by the Petitioner.

4. The Petition to set aside sale is filed under Order 21 Rule 89 of Code of Civil Procedure. The said provision provides “…Application to set aside sale on deposit…”. As per that provision also Applicant is required to deposit 5 % of purchaser money & amount specified in the proclamation of sale. No such deposits were made by the Petitioner. The time limit for filing such an application is 60 days from the date of sale as per Article 127 of Limitation Act and delay in making such an application cannot be condoned as specifically stipulated in Sec.5 of the Limitation Act.

Even otherwise, as held by Hon’ble Supreme Court in Standard Chartered Bank vs. MSTC Limited (2020)13 SCC 618 “… Section 34 of the Act makes it clear that the 1993 Act, (and, therefore,

Section 20), will have overriding effect over any other law for the time being in force, which includes the Code of Civil Procedure…”

5. Time limit for filing an appeal under Sec.30 of the Recovery of Debts and Bankruptcy Act, 1993 is 30 days. Hon’ble Supreme Court in International Asset Reconstruction Company of India Limited Vs. Official Liquidator of Aldrich Pharmaceuticals Limited and Ors., (2017) 16 SCC 137 held that “… The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act…”

To sum up, the Petitions are barred by limitation as discussed above, and as per the provisions contained in Recovery of Debts and Bankruptcy Act, 1993 only an appeal is maintainable against the order passed by the Recovery of Officer that too after depositing fifty per cent of the amount of debt due and within the time limit stipulated in Sec.30 of the Recovery of Debts and Bankruptcy Act, 1993. The Petitioner failed to rectify the defects in spite of granting opportunity. In view of the above, Petitions are not liable to be registered and is hereby declined under Rule 5 (4) of Debts Recovery Tribunal (Procedure) Rules, 1993. Sd/-

REGISTRAR

DRT, COIMBATORE