At, High Court of Andhra Pradesh
By, THE HONOURABLE CHIEF JUSTICE DR. AR. LAKSHMANAN & THE HONOURABLE MR. JUSTICE Y.V. NARAYANA
For the Appearing Parties: Dipak Bhattacharji, K.V.Simhadri, Advocates.
AR. LAKSHMANAN, C.J.
( 1 ) HEARD Mr. K. V. Simhadri, learned Counsel for the petitioners and Mr. Deepak Bhattacharjee, learned Standing Counsel for the respondent-Banks.
( 2 ) THIS writ petition is directed against the orders dated 10-12-2001 and 7-2-2002 passed by the learned Debts Recovery Tribunal, Hyderabad in OA No. 784 of 2001. We have perused both the orders impugned in this writ petition.
( 3 ) THE writ petitioners are defendants in the OA. It appears that the impugned order dated 10-12-2001 was passed in the absence of the learned Counsel appearing on behalf of the defendants without hearing their case. The impugned order days that no representation was made on behalf of the writ petitioners-Defendants before the learned Tribunal though they have filed their objections for the interim relief. A perusal of the order would show that the learned Tribunal has not referred to any of the objections raised by the petitioners herein but granted interim relief in favour of the respondent-Banks. It appears that the learned Tribunal has been carried away by me report submitted by the Commissioner. It is stated before us that against this order dated 10-12-2001 the respondent-Banks herein have filed an appeal before the Debt Recovery Appellate Tribunal, Chennai questioning the correctness of this order and praying for enhancement of the amount to be deposited. In our opinion, the order passed by the learned Tribunal dated 10-12-2001 is not only laconic but in the result of a total non-application of mind by the Tribunal. It is seen from the objections filed by the petitioners that they are yet to file the written statement in the main Original Application. Even though objections were filed by the petitioners herein opposing appointment of receiver the Tribunal has not considered any of the objections and passed the order dated 10-12-2001 impugned in this writ petition. In our opinion, the said order dated 10-12-2001, suffers from error apparent on the face of the record. Hence the order is liable to be set-aside of the ground of total non-application of mind on the part of the learned Tribunal.
( 4 ) LIKEWISE, the order dated 7-2-2001 directing the petitioners herein to approach the Debt Recovery Appellate Tribunal at Chennai against the order dated 10-12-2001 is also not warranted. Merely because Appeal has been filed by the respondent-Banks, the petitioner is also not obliged to file such an appeal before the appellate Tribunal. According to the learned Counsel for the petitioners, a detailed affidavit has been filed by the petitioners before the learned Tribunal explaining the reasons for the absence on 10-12-2001. It is stated that on coming to know of the order dated 10-12-2001, the petitioners immediately applied for the certified copy of the said order as there was no communication about the same and after obtaining the certified copy filed the said affidavit on 6-2-2002 and thereafter the matter was adjourned to 7-2-2002. On 7-2-2002, the learned Tribunal after hearing both sides directed the petitioner to prefer an appeal against the order-dated 10-12-2001. We have already stated that the order dated 10-12-2001 had been passed by the learned Tribunal contrary to law and in violation of the principles of natural justice. Under these circumstances, there is no need or necessity for compelling the petitioner herein also to file appeal before the Debt Recovery Appellate Tribunal. We have therefore, no hesitation to set aside the order dated 10-12-2002 wherein it is directed that the petitioners shall deposit a sum of Rs. 5. 00 lakhs per month into the Debt Recovery Tribunal to the credit of OA 784 of 2001, failing which receiver will be appointed for managing the company. The order of the Tribunal is also contrary to the powers conferred on the Tribunal under Section 19 Sub-clause (20) of the Recovery of Debts due to the Banks and Financial Institutions Act, 1993. The said section says that the Tribunal, after giving the applicant and the defendant an opportunity of being heard pass such interim order or final order including the order for payment of interest from the date on or before which payment of the amount is found due up to the date of realization or actual payment, on me application as it thinks fit to meet the ends of justice. Thus, in our considered opinion, the Tribunal ought to have granted an opportunity to the petitioner to be heard before passing the impugned orders. The order of the Tribunal is vitiated on grounds of breach of natural justice in not providing an opportunity of hearing before passing the orders. This apart, the learned Tribunal has failed to consider the objections filed by the petitioners by way of Memo, dated 22-11-2001 in the Original Application and that too after the matter was adjourned by the Court Officer to 7-1-2002. The Tribunal, in our opinion, has no power to pass the impugned order without affording opportunity to the petitioners to present their case. In our opinion, the Tribunal has exercised the discretionary powers vested in it in an unreasonable manner. We, therefore, a
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llow this writ petition and set aside the impugned orders dated 10-12-2001 and 7-2-2002 passed in OA 784 of 2001 and restore both the applications to file. The Tribunal shall, after giving notice to the petitioners herein and to the Banks, consider the prayer in Paras 7 (1) to 7 (3) of the Original Application and pass appropriate orders thereafter in accordance with law. The Tribunal is directed to dispose of the Memo for appointment of receiver as prayed for in Paras 7 (1) and 7 (3) of the Original Application within two months from the date of receipt of this Order.