w w w . L a w y e r S e r v i c e s . i n

B.D. Viz & Sons Pvt. Ltd. and Others V/S Bank of India

    Misc. Appl. Nos. 64, 160, 200 and 201 of 2001 and Appeal No. 9 of 2000

    Decided On, 13 February 2002

    At, Debt Recovery Appellate Tribunal At Delhi


    For Petitioner: V.K. Jain, Sr. Adv. and N.K. Jain, Advocate And For Respondents: H.S. Kohli, Advocate.

Judgment Text

Misc. Appl. No. 160/2001

1. This application under Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was moved along with the memorandum of appeal and therein it was prayed that the appellants be exempt from depositing the amount as held due by the Tribunal below. The appeal was filed in the year 1998.

2. By application No. 201/2001, additional grounds have been taken for exemption under Section 21 of the said Act. Replies have been filed and the pleadings are complete.

3. Heard learned Counsels for the parties on these applications.

4. This appeal was filed before Debts Recovery Appellate Tribunal, Mumbai against the final order made by DRT, Jaipur in O.A. No. 827/96 whereunder a decree of Rs. 55,22,559 has been passed with future interest @ 17.5% p.a. with quarterly rests from 25.8.94 till realization.

5. My learned predecessor, Mr. Justice V.R. Datar, Chairman of DRAT, Mumbai passed an order dated 4.10.99 wherein he directed the execution to be stayed until further orders on condition that the appellants would deposit Rs. 10 lakhs. The opening sentence of the order is as follows:

"On 27.7.99, when the matter was placed for hearing on question of deposit and stay time was sought on behalf of the respondent-Bank."
6. There is no dispute that by now Rs. 12 lakhs have been deposited by the appellants and recovery proceedings are under stay.

7. On 4.11.99, the Advocate appearing for the respondent-Bank submitted before my learned predecessor that the deposit made by the appellants was too inadequate and at least Rs. 21 lakhs ought to have been deposited by the appellants. The submission was not finally decided and the matter was adjourned from time-to-time on the point whether the parties were arriving at any amicable settlement. As the matter could not be settled between the parties, my learned predecessor, on 2.2.2000, permitted the respondent-Bank to file reply, if any, and listed 9.3.2000 for final hearing. On 9.3.2000, respondent-Bank was granted further time to file reply and it was directed that the matter would be heard on merits including guidelines of the Reserve Bank of India and 20.4.2000 was fixed for final hearing. Thereafter, upon establishment of this Appellate Tribunal at Delhi, the records of the appeal were transmitted to this Appellate Tribunal.

8. Learned Counsel for the applicant/appellants vehemently contended before me that the question of required deposit under Section 21 of the Act had been decided by my learned predecessor with a direction that Rs. 10 lakhs be deposited. According to him, had it not been so, Mr. Justice Datar would not have fixed dates for final hearing of the appeal. Learned Counsel for the appellants also submitted that the documents on which the respondent-Bank filed recovery suit were void and thus no decree could have been made against the appellants. His contention was that material alterations had been made in the documents which were the basis of the recovery suit. From the written statement, it may transpire that no such plea was taken but learned Counsel appearing for the appellants says that at any stage of the proceedings, if it is proved that material alterations have been made in negotiable instrument's, the same become void. This plea, in my view, in the facts and circumstances as stated above, may not be taken into consideration while deciding waiver under Section 21 of the Act.

9. However, I am inclined to agree with learned Counsel for the applicants/appellants that my learned predecessor Mr. Justice V.R. Datar had directed deposit of Rs. 10 lakhs and had fixed dates for final hearing. In these circumstances, there is cogent ground to make a strong presumption that my learned predecessor had impliedly disposed of the application for exemption under Section 21 by directing the appellants to deposit Rs. 10 lakhs and thereafter by fixing a date for final hearing after affording an opportunity to the respondent-Bank to file reply to the appeal.

10. There is no dispute between the parties that the appellants have already deposited Rs. 12 lakhs.

11. In the aforesaid facts and circumstances, I am inclined to reduce the required deposit under Section 21 and direct that the deposit already made by the appellant is sufficient for entertaining this appeal.

12. Consequently, the applications are disposed of and it is directed that the appeal is entertained for hearing on merits. Copy of this order may be given Dasti to the learned Counsels for the parties and, if not taken by them Dasti within two days, be sent to them.

List on 30.4.2002 for final hearing.