STANDARD CHARTERED BANK versus MSTC LIMITED on 21 January 2020

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SUPREME COURT REPORTS

[2020] 2 S.C.R.

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STANDARD CHARTERED BANK

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MSTC LIMITED

(Civil Appeal No. 501 of 2020)

JANUARY 21, 2020

[R.F. NARIMAN AND V. RAMASUBRAMANIAN, JJ.]

Recovery of Debts and Bankruptcy Act, 1993 – ss. 19, 20, 21and 22 – Debts Recovery Tribunal (Procedure) Rules, 1993 – r.5AC– Application for review – Appellant-Bank filed an application u/s.19 of the RDB Act for recovery of a sum of Rs.191,03,54,070.96/- –An I.A. was filed by the appellant stating that given the admissionscontained in the balance of the relevant years of the respondent-Company, a sum of Rs. 222,51,00,000/- was owed by the respondent– The said I.A. was allowed by DRT – The respondent filed an appealDagainst the said order before the DRAT – While pending appeal, areview application was filed by the respondent before the DRT –Thereafter, the appeal filed earlier was withdrawn – Meanwhile,an application was filed to condone a delay of 28 days in filing thereview petition before the DRT – Application was dismissed by theEDRT – Writ Petition – The High Court held that no appeal would bemaintainable against the dismissal of the review petition and thattherefore, a writ petition would be maintainable – The High Courtalso held that application u/s. 19 of the RDB Act would subsume anapplication for review as a review application would originate froman order passed u/s.19 , as per procedure prescribed u/s. 22 of theFRDB Act, and would therefore not be an application which couldbe said to be independent of s. 19 of the Act – This being the case,the High Court condoned the delay and set aside the judgment ofthe DRT – On appeal, held: The judgment of the Supreme Court inInternational Asset Reconstruction Company of India Limited makesGit plain, though in a slightly different context, that only applicationthat is referred to by s. 24 of the RDB Act is an application filed u/s. 19 and no other – This being the case, an application for review,not being an application u/s. 19, but an application u/s. 22 (2) (e)

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r/w. r. 5A of the Rules, this judgment would apply on all fours toexclude applications which are review applications from the purviewof s. 24 of the RDB Act – The High Court also wrongly applied Or.XLVII, r. 7 of the CPC – S. 22 (1) of the RDB Act makes it clear thatthe Tribunal and the Appellate Tribunal shall not be bound by theprocedure laid down by the Code of Civil Procedure, making it clearthat Or. XLVII, r. 7 would not apply to the Tribunal – Further, s. 20applies to all applications that may be made, including applicationsfor review and orders being made therein subject to appeal – Also,s. 34 of the Act makes it clear that 1993 Act, will have overridingeffect over any other law for the time being in force, which includesthe Code of Civil Procedure – The High Court was clearly in errorin holding that no appeal would be maintainable against thedismissal of the review petition and that a writ petition would bemaintainable – Therefore, the judgment of the High Court cannotbe sustained and is set aside.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD : 1. Rules 2(b) and 2(c) of the Debt RecoveryTribunal (Procedure) Rules, 1993 define “applicant” and“application”, respectively, as including applicants andapplications filed under Section 19, 31A of the Recovery of Debtsand Bankruptcy Act, 1993 as well as appeals filed under Section30(1) of the Act. An application under Section 31A is an applicationto enforce a decree or order passed by any court before thecommencement of the Amendment Act of 2000 and which hasnot yet been executed. An appeal under Section 30(1) is an appealto the Tribunal against orders of the Recovery Officer madeunder the Act. The reason why Rule 2(c) of the Rules definesapplication as including an application under Section 31A and anappeal filed under Section 31 of the Act, apart from applicationsfiled under Section 19, is because under Rule 4 of the Rules,the procedure for filing such applications/appeal is under FormsI to III appended to the Rules. What is important to note is thateven this extended definition,under the Rules, does not includean application for review filed under Rule 5A of the Rules. Inpoint of fact, Rule 7 makes it abundantly clear that each suchapplication, including applications for review, are viewed AB

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[2020] 2 S.C.R.

Aseparately and independently, as fees payable for filing suchapplications are vastly different, as is clear from Rule 7(2) of theRules. [Para 8][458-D-F]

2. In fact, this Court in International Asset ReconstructionCompany of India Limited had to consider whether Section 5 ofBthe Limitation Act can be invoked to condone delay in the filingof an appeal after the prescribed period of 30 days under Section30(1) of the RDB Act. The Court first stated, in paragraph 8,that the RDB Act is undoubtedly a special law and a completecode by itself with regard to expeditious recovery of dues tobanks and financial institutions. After then noticing Section 22(1)Cin paragraph 9 and stating that Section 5 of the Limitation Actcannot proprio vigore apply to a tribunal as a tribunal is not aCourt. [Para 9][458G-H; 459A]

3. The judgment of this Court makes it plain, though in aslightly different context, that the only application that isDreferred to by Section 24 of the RDB Act is an application filedunder Section 19 and no other. This being the case, an applicationfor review, not being an application under Section 19, but anapplication under Section 22(2)(e) read with Rule 5A of the Rules,this judgment would apply on all fours to exclude applicationsEwhich are review applications from the purview of Section 24 ofthe RDB Act. [Para 10][461A-B]

4. The peremptory language of Rule 5A would also make itclear that beyond 30 days there is no power to condone delay. Itmay also be noted that Rule 5A was added in 1997 with aFlonger period within which to file a review petition, namely, 60days. This period was cut down, by amendment, with effectfrom 04.11.2016, to 30 days. From this two things are clear:one, whether in the original or unamended provision, there is noseparate power to condone delay, as is contained in Section20(3) of the Act; and second, that the period of 60 days wasGconsidered too long and cut down to 30 days thereby evincing anintention that review petitions, if they are to be filed, should bewithin a shorter period of limitation – otherwise they would notbe maintainable. [Para 14][462C-D]

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5. This Court is also of the view that the High Court wronglyapplied Order XLVII Rule 7 of the Code of Civil Procedure.Section 22(1) of the Act makes it clear that the Tribunal and theAppellate Tribunal shall not be bound by the procedure laid downby the Code of Civil Procedure, making it clear thereby thatOrder XLVII Rule 7 would not apply to the Tribunal. Also, inview of Section 20, which applies to all applications that may bemade, including applications for review, and orders being madetherein being subject to appeal, it is a little difficult to appreciatehow Order XLVII Rule 7 could apply at all, given that Section 20of the RDB Act is part of a complete and exhaustive code.Section 34 of the Act makes it clear that the 1993 Act, (and,therefore, Section 20), will have overriding effect over any otherlaw for the time being in force, which includes the Code of CivilProcedure. The High Court, in holding that no appeal would bemaintainable against the dismissal of the review petition, andthat therefore a writ petition would be maintainable, was clearlyin error on this count also. [Paras 15 and 16][462E; 463B-D]

International Asset Reconstruction Company of IndiaLimited v. Official Liquidator of AldrichPharmaceuticals Limited and Others (2017) 16 SCC137 : (2017) 10 SCR 199 – relied on.

Kamlesh Verma v. Mayawati and Others (2013) 8 SCC320 : (2013) 11 SCR 25 – referred to.

Case Law Reference

(2017) 10 SCR 199relied onPara 2 (vii)(2013) 11 SCR 25referred toPara 3

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 501 of2020.

From the Judgment and Order dated 03.05.2019 of the High Courtof Judicature at Bombay in Writ Petition No. 2765 of 2018.

Neeraj Kishan Kaul, Sr. Adv., Tushad Cooper, Ms. Anushka Sharda,Rohit Ghose, Ms. Smriti Nair, Varun Mathur, Akash Lamba, DivyanshuSrivastava (for M/s. Khaitan & Co.), Advs. for the Appellant.

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ATushar Mehta, SG, Amar Dave, Hemant Sharma, Ms. Anamika,Mrs. Indu Sharma, Advs. for the Respondent.

The Judgment of the Court was delivered by

R. F. NARIMAN, J.

B1. Leave granted.

2. The present appeal raises interesting questions which ariseunder the Recovery of Debts and Bankruptcy Act, 1993 (hereinafterreferred to as “the RDB Act” or “the Act”). The brief facts necessaryto appreciate the questions raised are as follows:- C

C(i) On 29.08.2008, a Receivables Purchase Agreement wasexecuted between Standard Chartered Bank, which is the appellantbefore us and MSTC Limited, which is a Government Company-respondent herein, whereunder receivables from overseas buyers inrespect of invoices raised by the respondent against foreign buyersDwere purchased by the appellant. 95% of the amount raised by theinvoices was remitted to the respondent.

(ii) An Export Insurance Policy was obtained by these partiesfrom ICICI Lombard General Insurance Company under whichthe Insurance Company agreed to indemnify the respondent and theappellant in the event of default in payment of foreign buyers.

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(iii) The appellant had lodged a claim with the said InsuranceCompany which, however, was repudiated on 03.03.2011. In thisbackground, on 13.03.2012, the appellant filed an application under Section19 of the RDB Act being O.A. No. 43 of 2012 before the DRT,Mumbai for recovery of a sum of Rs.191,03,54,070.96.

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(iv) An I.A was then filed by the respondent before the DRTMumbai, challenging its jurisdiction, which was ultimately disposed ofon 26.09.2013 and an appeal therefrom was dismissed on 03.02.2017,holding that the DRT Mumbai did have territorial jurisdiction to goahead with the case.

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(v) At this point, an I.A was filed by the appellant stating thatgiven the admissions contained in the balance sheet of the relevant yearsof the respondent-Company, a sum of Rs. 222,51,00,000/- was owedby the respondent to the appellant. This I.A. was allowed by the DRTMumbai on 26.10.2017.

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(vi) An appeal was filed by the respondent-Company againstthe said order before the DRAT on 14.11.2017. While the appeal waspending, Review Application No. 1 of 2018 was filed on 18.12.2017before the DRT by the respondent-Company after the appeal that waslodged earlier in point of time was withdrawn by the respondent-Companyon 02.01.2018.

(vii) In the meanwhile, an application dated 16.02.2018 was madeto condone a 28 day delay in filing the review petition before theDRT, the period of limitation under Rule 5A of the Debt Recovery Tribunal(Procedure) Rules, 1993 (hereinafter referred to as “the Rules”)being 30 days. This review petition was dismissed by the DRT on21.04.2018, in which this Court’s judgment reported inInternationalAsset Reconstruction Company of India Limitedvs. OfficialLiquidator of Aldrich Pharmaceuticals Limited and Others, (2017)16 SCC 137 was followed, and Section 5 of the Limitation Act, 1963was held not to be applicable to review petitions that were filed underRule 5A of the Rules. A further plea to exclude time taken underSection 14 of the Limitation Act, 1963 was also dismissed by theDRT stating that a filing of the review petition after the appeal wouldshow that the appeal provision, which requires a minimum 25% deposit,was sought to be circumvented, and, therefore, this being the case,time taken under Section 14 cannot be excluded as the respondent-Company did not move bona fide in the matter.

(viii) From the order dated 21.4.2018, a writ petition was filedbefore the Bombay High Court on 26.04.2018, which was then disposedof by the impugned judgment on 03.05.2019, holding that thealternative remedy of filing an appeal not being available, the writ petitionwould be maintainable. In any case, the judgment of this Court inInternational Asset Reconstruction Company of India Limited(supra) was confined to consideration of Section 30 of the RDB Act,and paragraph 14 of the said judgment would make it clear that itwould apply to the facts of this case inasmuch as an original applicationmade under Section 19 of the RDB Act, (which by the definition clauseunder Section 2(b) applies only to applications made under Section19 and to no others) would subsume an application for review asa review application would originate from an order passed under Section19 of the RDB Act, as per procedure prescribed under Section 22 ofthe RDB Act, and would therefore not be an application which A

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Acould be said to be independent of Section 19 of the RDB Act. Thisbeing the case, the High Court set aside the judgment of the DRT,condoned the delay in filing of the review application itself, andrestored the review application to the file.

3. Mr. Neeraj Kishan Kaul, learned Senior Advocate appearingBon behalf of the appellant, has contended that the High Court is wrongon all counts. First and foremost, the High Court could not havelooked at Order XLVII Rule 7 of the CPC in order to hold that anappeal from an order dismissing a review petition would not bemaintainable before the DRAT both for the reason that Order 47Rule 7 itself is inapplicable under Section 22(1) of the RDB Act and forCthe reason that Section 20 of the RDB Act makes it clear that appealslie to the DRAT from all applications that may have been disposed of bythe Tribunal under the RDB Act. He further argued that the judgmentin International Asset Reconstruction Company of India Limited(supra) ought to have been applied correctly in that the ratioDdecidendi of the judgment made it clear that it is only applicationsunder Section 19 that are referred to in Section 24 of the RDB Act, andthis being the case, a review application, being an independentproceeding, could not be subsumed within the expression“application” contained in Section 24 of the RDB Act. He alsocited the judgment reported in Kamlesh Vermavs. MayawatiEand Others, (2013) 8 SCC 320 to buttress the submission that a reviewpetition cannot be equated with the original proceeding. Further,contrasting Rule 5A of the Rules with Section 20 of the RDB Act, sinceperemptory language has been used in the said rule, making it clearthat a review petition filed beyond 30 days would have to be dismissed,Fcoupled with the fact that no provision for condonation of delay, as inSection 20, is contained in Rule 5A would also make it clear that theimpugned judgment has to be faulted on this ground as well.

4. Mr. Amar Dave, learned Advocate appearing on behalf ofthe respondent, stoutly resisted each one of these contentions. FirstGand foremost, he asked us to consider the fact that the O.A. before theDRT was in 2012, and it is only after waiting for five years that athoroughly frivolous application was taken out in 2017 for a judgmenton admission. He also adverted to Section 19, in particular, sub-section(2) thereof, to argue that Section 19 is not exhaustive of the typesof applications that can be made under the Act. He also strongly reliedH

upon the reasoning of the High Court judgment, and stated that Section19 and 22 should be read together, as a review proceeding emanatesfrom the original proceeding and is really part and parcel of theproceeding, and this being the case, Section 24 of the RDB Act wouldapply Section 5 of the Limitation Act, 1963 to review proceedings aswell. He strongly relied upon paragraph 12, in particular, inInternational Asset Reconstruction Company of India Limited(supra) to contend that there was a fundamental difference betweenthe facts in that judgment and the facts of the present case. Thedifference is that in the earlier judgment, Section 30 pre and postamendment was set out, and it was stated that an appeal that wasfiled against the orders of recovery officers, which will be governed bySection 30 of the RDB Act, would be appeals filed against a personadesignata who is not a tribunal, and this being the case, the secondsentence of paragraph 12 becomes very important, in which this Courtthen states that had the recovery officer been held to be a tribunal, thematter would have to be completely differently viewed. It was hiscase, therefore, that this judgment is wholly distinguishable. He alsosupported the impugned judgment on maintainability of the WritPetition.

5. Having heard learned counsel for both sides, it is necessary toset out some of the provisions of the RDB Act and the Rules madethereunder. Section 2(b) of the RDB Act states as follows:

“2. Definitions.-

(b) “application” means an application made to a Tribunalunder section 19;”

Section 19 of the RDB Act states as follows:

“19. Application to the Tribunal. –

(1) Where a bank or a financial institution has to recoverany debt from any person, it may make an application tothe Tribunal within the local limits of whose jurisdiction- (a) the branch or any other office of the bank or financialinstitution is maintaining an account in which debt claimed isoutstanding, for the time being; or AB

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(aa) the defendant, or each of the defendants where there aremore than one, at the time of making the application,actually and voluntarily resides or carries on business, orpersonally works for gain; or (b) any of the defendants, where there are more than one, atthe time of making the application, actually and voluntarilyresides or carries on business, or personally works for gain;or

(c) the cause of action, wholly or in part, arises xxx xxx xxx

(2) Where a bank or a financial institution, which has to recoverits debt from any person, has filed an application to theTribunal under sub-section (1) and against the same personanother bank or financial institution also has claim to recoverits debt, then, the later bank or financial institution may join theapplicant bank or financial institution at any stage of theproceedings, before the final order is passed, by making anapplication to that Tribunal.

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(5) (i) the defendant shall within a period of thirty days fromthe date of service of summons, present a written statementof his defence including claim for set-off under sub-section(6) or a counter-claim under sub-section (8), if any, andsuch written statement shall be accompanied with originaldocuments or true copies thereof with the leave of the Tribunal,relied on by the defendant in his defence:

Provided that where the defendant fails to file the writtenstatement within the said period of thirty days, the PresidingOfficer may, in exceptional cases and in special circumstancesto be recorded in writing, extend the said period by suchfurther period not exceeding fifteen days to file the writtenstatement of his defence; xxx xxx xxx

(18) Where it appears to the Tribunal to be just andconvenient, the Tribunal may, by order—

(a) appoint a receiver of any property, whether before or aftergrant of certificate for recovery of debt; (b) remove any person from the possession or custodyof the property;

(c) commit the same to the possession, custody ormanagement of the receiver; (d) confer upon the receiver all such powers, as tobringing and defending suits in the courts or filing and defendingapplications before the Tribunal and for the realisation,management, protection, preservation and improvement of theproperty, the collection of the rents and profits thereof, theapplication and disposal of such rents and profits, and theexecution of documents as the owner himself has, or such ofthose powers as the Tribunal thinks fit; and (e) appoint a Commissioner for preparation of an inventoryof the properties of the defendant or for the sale thereof.”

Sections 20, 21 and 22 of the RDB Act state as follows:

“20. Appeal to the Appellate Tribunal. - (1) Save as providedin sub-section (2), any person aggrieved by an order made, ordeemed to have been made, by a Tribunal under this Act,may prefer an appeal to an Appellate Tribunal havingjurisdiction in the matter.

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(3) Every appeal under sub-section (1) shall be filed within aperiod of thirty days the date on which a copy of the ordermade, or deemed to have been made, by the Tribunal is receivedby him and it shall be in such form and be accompanied bysuch fee as may be prescribed:

Provided that the Appellate Tribunal may entertain an appealafter the expiry of the said period of thirty days if it is satisfiedthat there was sufficient cause for not filing it within that period.

21. Deposit of amount of debt due, on filing appeal. -Where an appeal is preferred by any person from whom theamount of debt is due to a bank or a financial institution or aconsortium of banks or financial institutions, such appealshall not be entertained by the Appellate Tribunal unlesssuch person has deposited with the Appellate Tribunal fiftypercent of the amount of debt so due from him asdetermined by the Tribunal under section 19:

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Provided that the Appellate Tribunal may, for reasons to berecorded in writing, reduce the amount to be deposited bysuch amount which shall not be less than twenty-five percent of the amount of such debt so due to be deposited underthis section.

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22. Procedure and powers of the Tribunal and theAppellate Tribunal. - (1) The Tribunal and the AppellateTribunal shall not be bound by the procedure laid downby the Code of Civil Procedure, 1908 (5 of 1908), but shall beguided by the principles of natural justice and, subject to theother provisions of this Act and of any rules, the Tribunaland the Appellate Tribunal shall have powers to regulate theirown procedure including the places at which they shallhave their sittings.

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(2) The Tribunal and the Appellate Tribunal shall have, for thepurposes of discharging their functions under this Act, thesame powers as are vested in a Civil Court under the Codeof Civil Procedure, 1908 (5 of 1908), while trying a suit, inrespect of the following matters, namely:

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(e) reviewing its decisions;”

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Section 24 of the RDB Act states as follows:

“24. Limitation. - The provisions of the Limitation Act, 1963(36 of 1963), shall, as far as may be, apply to an applicationmade to a Tribunal.”

FSection 34 (1) of the RDB Act states as follows:

“34. Act to have overriding effect.—

(1) Save as provided under sub-section (2), the provisionsof this Act shall have effect notwithstanding anythinginconsistent therewith contained in any other law for the timebeing in force or in any instrument having effect by virtueof any law other than this Act.”

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Rule 2(b) and 2(c) of the Debt Recovery Tribunal (Procedure)Rules, 1993 states as follows:

“2. Definitions.-

(b) – “applicant” means a person making an applicationunder section 19 or under section 31A and includes an“applicant” who files an appeal under section 30(1) of theAct;

(c) “application” means an application filed under section19 or under section 31A and includes an “appeal” filedunder section 30(1) of the Act”

Rule 4(1) of the Rules states as follows:

“4. Procedure for filing applications

(1) An application under section 19 or section 31A, or undersection 30(1) of the Act may be presented as nearly aspossible in Form I, Form II and Form III respectivelyannexed to these rules by the applicant in person or by hisagent or by a duly authorised legal practitioner to the Registrarof the Bench within whose jurisdiction his case falls or shall besent by registered post addressed to the Registrar.”

Rule 5A of the Rules states as follows:

“5A.Review.-

(1) Any party considering itself aggrieved by an order madeby the Tribunal on account of some mistake or error apparenton the face of the record desires to obtain a review of theorder made against him, may apply for a review of the orderto the Tribunal which had made the order.

(2) No application for review shall be made after theexpiry of a period of thirty days from the date of the order andno such application shall be entertained unless it isaccompanied by an affidavit verifying the application.

(3) Where it appears to the Tribunal that there is no sufficientground for a review, it shall reject the application butwhere the Tribunal is of opinion that the application forreview should be granted, shall grant the same:

Provided that no such application shall be granted withoutprevious notice to the opposite party to enable him to appearand to be heard in support of the order, a review of which isapplied for.”

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ARule 7 of the Rules states as follows:“7. Application fee

(1) Every Application under section 19(1), or section 19(2), orsection 19(8), or section 30(1) of the Act, or interlocutoryapplication or application for review of decision of the TribunalBshall be accompanied by a fee provided in the sub-rule (2) andsuch fee may be remitted through a crossed Bank DemandDraft drawn on a bank or Indian Postal Order in favour of theRegistrar of the Tribunal and payable at the place wherethe Tribunal is situated.

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(2) The amount of fee payable shall be as follows:- D

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S. No.Nature of ApplicationAmount of FeePayable1.Application for recovery of debts dueunder section 19(1) or section 19(2)Rs. 12,000of the ActRs. 12,000 plus Rs.(a) Where amount of debt due is1,000 for every oneRs. 10 lakhslakh rupees of debtdue or part thereof(b) Where the amount of debtin excess of Rs. 10due is above Rs. 10 lakhslakhs, subject to amaximum ofRs. 1,50,0002.Application to counter claim undersection 19(8) of the Act –Rs. 12,000(a) Where the amount of claimRs. 12,000 plus Rs.made is upto Rs. 10 lakhs.1,000 for every onelakh rupees or part(b) Where the amount of claimthereof in excessmade is above Rs. 10 lakhs.of Rs. 10 lakhs,subject to amaximum ofRs. 1,50,000

3. Application for Review includingAreview application in respect ofRs. 125counter-claim50% of fee payable(a) against an interim orderat rates asapplicable on the(b) against a final order ex-applications underBcluding review for correctionof clerical or arithmetical mistakessection 19(1) or19(8) of the Act,subject to amaximum ofRs. 15,0004.Application for interlocutory orderRs. 250C5.Appeals against orders of theRecovery OfficerIf the amount appealed against isRs. 12,000(i) less than Rs. 10 lakhsRs. 20,000D(ii) Rs. 10 lakh or more but lessRs. 30,000than Rs. 30 lakhs(iii) Rs. 30 lakhs or more6.VakalatnamaRs. 5”E

6. A reading of the aforesaid provisions of the Act and Ruleswould show that review petitions are dealt with in Section 22(2)(e) readwith Rule 5A of the Rules. Section 24, which applies the provisionsof the Limitation Act to applications made to a Tribunal, would, as perthe definition section contained in Section 2(b), apply only toFapplications that are made under Section 19, which are originalapplications to recover debts that are made by banks and financialinstitutions. What is clear is that an application for review cannotpossibly be said to be an application filed under Section 19 even ona cursory reading of the provisions of the Act, as it traces its origin toGSection 22(2)(e) read with Rule 5A of the Rules.

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7. As a matter of fact, applications that are made to the Tribunalunder Section 19 of the Act are only made in order to recover a debtfrom any person. Even Section 19(2), which is strongly relied upon byShri Dave, makes it clear that another bank or financial institution may H

Ajoin an applicant bank or financial institution at any stage of the proceedingbefore the final order is passed by making an application against thesame debtor for debts owed to such other bank or financial institution.Also, under Section 19(5) of the Act, a written statement may includea claim for set-off and/or a counter-claim and under Section 19(18)of the Act, interim orders may be passed in applications filed forBrecovery of debts under Section 19 of the Act. All this must becontrasted with an application for review that is filed under Section 22(2)(e) of the Act read with Rule 5A of the Rules. Such applicationsare not for recovery of debts but are only applications to correcterrors apparent on the face of the record in a judgment that hasCbeen delivered in an application filed under Section 19.

8. A reading of the Rules is also illuminating. Rules 2(b) and 2(c)of the Rules define “applicant” and “application”, respectively, asincluding applicants and applications filed under Section 19, 31A as wellas appeals filed under Section 30(1) of the Act. An applicationDunder Section 31A is an application to enforce a decree or orderpassed by any court before the commencement of the Amendment Actof 2000 and which has not yet been executed. An appeal under Section30(1) is an appeal to the Tribunal against orders of the RecoveryOfficer made under the Act. The reason why Rule 2(c) of theRules defines application as including an application under SectionE31A and an appeal filed under Section 31 of the Act, apart fromapplications filed under Section 19, is because under Rule 4 of theRules, the procedure for filing such applications/appeal is under Forms Ito III appended to the Rules. What is important to note is that eventhis extended definition, under the Rules, does not include anFapplication for review filed under Rule 5A of the Rules. In point offact, Rule 7 makes it abundantly clear that each such application,including applications for review, are viewed separately andindependently, as fees payable for filing such applications are vastlydifferent, as is clear from Rule 7(2) of the Rules.G9. In fact, this Court in International Asset ReconstructionCompany of India Limited (supra) had to consider whether Section 5of the Limitation Act can be invoked to condone delay in the filing of anappeal after the prescribed period of 30 days under Section 30(1) of theRDB Act. The Court first stated, in paragraph 8, that the RDB Act isundoubtedly a special law and a complete code by itself with regard toH

expeditious recovery of dues to banks and financial institutions. Afterthen noticing Section 22(1) in paragraph 9 and stating that Section 5of the Limitation Act cannot proprio vigore apply to a tribunal as atribunal is not a Court (in paragraph 10), the Court went on to hold:

“11. An “application” is defined under Section 2(b) of the RDBAct as one made under Section 19 of the Act. The latterprovision in Chapter IV deals with institution of originalrecovery proceedings before a Tribunal. An appeal lies againstthe order of the Tribunal under Section 20 before theAppellate Tribunal within 45 days, which may be condoned forsufficient cause under the proviso to Section 20(3) of the Act.The Tribunal issues a recovery certificate under Section 19(22)to the Recovery officer who then proceeds under Chapter Vfor recovery of the certificate amount in the manner prescribed.A person aggrieved by an order of the Recovery officer canprefer an appeal before the Tribunal under Rule 4, by anapplication in the prescribed Form III. Rule 2(c) defines an“application” to include a memo of appeal under Section 30(1).The appeal is to be preferred before the Tribunal, as distinctfrom the Appellate Tribunal, within 30 days. Section 24 of theRDB Act, therefore, manifestly makes the provisions of theLimitation Act applicable only to such an original “application”made under Section 19 only. The definition of an“application” under Rule 2(c) cannot be extended to read it inconjunction with Section 2(b) of the Act extending the meaningthereof beyond what the Act provides for and then make Section24 of the RDB Act applicable to an appeal under Section 30(1) ofthe Act. Any such interpretation shall be completely contrary tothe legislative intent, extending the Rules beyond what the Actprovides for and limits. Had the intention been otherwise, nothingprevented the Legislature from providing so specifically.

12. A comparative study of Section 30, pre and post- amendmentin the year 2000, reveals that the deemed status of proceedingsbefore the Recovery officer, as a Tribunal, stands denuded.Had the proceedings before the Recovery officer deemed tobe before a Tribunal, entirely different considerations mayhave arisen.

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Old Section 30 before the 2000Section 30 after the 2000AmendmentAmendment“30 Orders of Recovery Officer to“30. Appeal against the-be deemed as order of Tribunal.order of Recovery Officer.-Notwithstanding anything(1) Notwithstanding anythingcontained in Section 29, ancontained in Section 29, anyorder made by the Recoveryperson aggrieved by an orderOfficer in exercise of his powersof the Recovery Officer madeunder Sections 25 to 28 (bothunder this Act may, within thirtyinclusive), shall be deemed todays from the date on which ahave been made by the Tribunalcopy of the order is issued to him,and an appeal against suchprefer an appeal to the Tribunal.orders shall lie to the Appellate(2) On receipt of an appeal underTribunal.”sub-section (1), the Tribunalmay, after giving an opportunityto the appellant to be heard, andafter making such enquiry as itdeems fit, confirm, modify or setaside the order made by theRecovery Officer in exercise ofhis powers under Sections 25to 28 (both inclusive).”

13. The RDB Act is a special law. The proceedings arebefore a statutory Tribunal. The scheme of the Act manifestlyprovides that the legislature has provided for application ofthe Limitation Act to original proceedings before the Tribunalunder Section 19 only. The Appellate Tribunal has been conferredthe power to condone delay beyond 45 days under Section20(3) of the Act. The proceedings before the Recovery officerare not before a Tribunal. Section 24 is lim- ited in its applicationto proceedings before the Tribunal originating under Section 19only. The exclusion of any provision for extension of time by theTribunal in preferring an appeal under Section 30 of the ctmakes it manifest that the legislative intent for exclusion wasexpress. The application of Section 5 of the Limitation Act byresort to Section 29(2) of the Limitation Act, 1963 thereforedoes not arise. The prescribed period of 30 days under Section30(1) of the RDB Act for preferring an appeal against the orderof the Recovery officer therefore cannot be condoned byapplication of Section 5 of the Limitation Act.”

10. The judgment of this Court makes it plain, though in a slightlydifferent context, that the only application that is referred to bySection 24 of the RDB Act is an application filed under Section 19 andno other. This being the case, an application for review, not beingan application under Section 19, but an application under Section22(2)(e) read with Rule 5A of the Rules, this judgment would applyon all fours to exclude applications which are review applicationsfrom the purview of Section 24 of the RDB Act.

11. However, Mr. Dave laid great stress on paragraph 12 ofthe said judgment and, in particular, the sentence “had the proceedingsbefore the Recovery Officer deemed to be before a Tribunal,entirely different considerations may have arisen”. From thissentence, the learned counsel sought to infer that it would not only beapplications under Section 19 that would come within the “application”spoken of in Section 24, but other applications also.

12. We are afraid we are unable to agree with the aforesaidsubmission. The clear ratio decidendi of this judgment makes itabundantly clear that the only application referred to in Section 24 is anapplication filed under Section 19 and to no other. The sentence that isextracted and relied upon by Mr. Dave only makes sense in the contextof Section 30 unamended, when read juxtaposed with Section 30 asamended. Under the unamended section, when the recovery officer’sorder was deemed as an order of the Tribunal, appeals would lie tothe Appellate Tribunal. This would mean that Section 20 of the RDBAct would apply, as a result of which Section 20(3) would kick in andwould permit condonation of delay. After the amendment, it is importantto note that the recovery officer is no longer considered a Tribunal,as result of which an appeal from a recovery officer’s order is made notto the Appellate Tribunal, but to the Tribunal of first instance. It is in thiscontext that the aforesaid sentence in paragraph 12 of the Court’sjudgment is to be read, making it clear that if the unamended Section30 were to apply, the provision contained in Section 20(3) would beattracted, permitting condonation of delay.

13. Mr. Dave’s second contention that, in any case, a reviewpetition is only a correction of the order made in the originalproceeding, and therefore part and parcel of the original proceeding,cannot be countenanced in view of this Court’s judgment inKamleshVermavs. Mayawati and Others (supra). This Court held:

A

B

C

D

E

F

G

H

A“13. In a criminal proceeding, review is permissible on the groundof an error apparent on the face of the record. A reviewproceeding cannot be equated with the original hearing of thecase.

20.2. When the review will not be maintainable:

B(i) xxx

(iii) Review proceedings cannot be equated with the originalhearing of the case.”

14. The peremptory language of Rule 5A would also make it clearCthat beyond 30 days there is no power to condone delay. We may alsonote that Rule 5A was added in 1997 with a longer period withinwhich to file a review petition, namely, 60 days. This period was cutdown, by amendment, with effect from 04.11.2016, to 30 days.From this two things are clear: one, whether in the original or unamendedprovision, there is no separate power to condone delay, as is containedDin Section 20(3) of the Act; and second, that the period of 60 dayswas considered too long and cut down to 30 days thereby evincing anintention that review petitions, if they are to be filed, should be within ashorter period of limitation – otherwise they would not be maintainable.

15. We are also of the view that the High Court wrongly appliedEOrder XLVII Rule 7 of the Code of Civil Procedure. Order XLVIIRule 7 states as follows:

“7. Order of rejection not appealable - Objections to ordergranting application.-

(1) An order of the Court rejecting the application shall not beFappealable; but an order granting an application may be objectedto at once by an appeal from the order granting the application orin an appeal from the decree or order finally passed or made inthe suit.

(2) Where the application has been rejected in consequenceGof the failure of the applicant to appear, he may apply for anorder to have the rejected application restored to the file, and,where it is proved to the satisfaction of the Court that he wasprevented by any sufficient cause from appearing when suchapplication was called on for hearing, the Court shall order it to be H

STANDARD CHARTERED BANK v. MSTC LIMITED[R. F. NARIMAN, J.]

restored to the file upon such terms as to costs or otherwise as itthinks fit, and shall appoint a day for hearing the same.

(3) No order shall be made under sub-rule (2) unless notice ofthe application has been served on the opposite party.”

16. Section 22(1) of the Act makes it clear that the Tribunal andthe Appellate Tribunal shall not be bound by the procedure laid down bythe Code of Civil Procedure, making it clear thereby that OrderXLVII Rule 7 would not apply to the Tribunal. Also, in view ofSection 20, which applies to all applications that may be made,including applications for review, and orders being made thereinbeing subject to appeal, it is a little difficult to appreciate how OrderXLVII Rule 7 could apply at all, given that Section 20 of the RDB Act ispart of a complete and exhaustive code. Section 34 of the Actmakes it clear that the 1993 Act, (and, therefore, Section 20), will haveoverriding effect over any other law for the time being in force, whichincludes the Code of Civil Procedure. The High Court, in holdingthat no appeal would be maintainable against the dismissal of the reviewpetition, and that therefore a writ petition would be maintainable,was clearly in error on this count also.

17. Shri Dave’s contention that as to the appellant’s conduct, as inan application filed in 2012 an I.A praying that a judgment should begiven on admission, was filed unconscionably late i.e. only in 2017, fiveyears later, also has no legs to stand. In 2013, the respondent challengedthe jurisdiction of the DRT Mumbai which challenge was repelled finallyin appeal only in 2017 after which the said I.A was filed. In any event,this is not an argument which would, by itself, lead to a dismissal of theSLP filed by the appellant under Article 136 of the Constitution of India.