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M/s Hargobind Fashion P. Ltd v/s State Bank of Patiala

    WP (C) 533 of 2006 & 35 of 2006

    Decided On, 16 January 2006

    At, High Court of Delhi

    By, THE HONOURABLE CHIEF JUSTICE MR. MARKANDEYA KATJU & THE HONOURABLE MR. JUSTICE MADAN B. LOKUR

    For the Petitioner : M.C. Dhingra, Advocate. For the Respondent: R.K. Kataria and Mr. Vishnu Mehra, Advocates.



Judgment Text

Markandeya Katju, C.J. (Oral)


1. Heard learned counsels for the parties and perused the record.


2. By means of this petition petitioner challenged the impugned order of the Debt Recovery Appellate Tribunal in Misc. Appeal No. 329/2002.


3. The facts of the case are that OA No. 07/1995 was filed by the Respondent Bank before the DRT, New Delhi, in respect of a certain loan. Written statement was filed before the DRT by the petitioner (respondent therein) alleging non- compliance of Rule 9 of the Rules framed under the Recovery of Debt Due to Banks and Financial Institution Act, 1993.


4. Rule 9 states as follows:-


“9: Documents to accompany the application (1) Every application shall be accompanied by a paper book containing:-


(i)statement showing details of the debt due from a defendant and the circumstances under which such a debt has become due;


(ii)all documents relied upon by the applicant and those mentioned in the application;


iii)details of the crossed demand draft or crossed Indian Postal Order representing the application fee;


(iv)the documents referred to in sub-rule (1) shall be neatly typed in double space on one side of the paper, duly attested by a senior officer of the bank, or financial institution, as the case may be, and numbered accordingly.


(v)Where the parties to the suit or proceedings are being represented by an agent, documents authorizing him to act as such agent shall also be appended to the application:


Provided that where an application is filed by legal practitioner it shall be accompanied by a duly executed Vakalatnama.”


5. The Tribunal vide order dated 27.09.1995 framed the following three preliminary issues:-


“1. Whether the application has been filed as per the rules and the Act?


2. Whether the proper court fee has been paid as per the rules and the Act?


3. Whether OA can be entertained without filing the statement of account and the documents”


6. After hearing the counsels for the parties, the Tribunal vide order dated 26.2.1996 disposed off these issues vide Annexure A/3 to the Writ Petition.


7. It is alleged that by order dated 26.2.1996, the Tribunal decided the first two preliminary issues whereas the third preliminary issue was not decided. The Tribunal in the concluding paragraph of its order observed:-


“So far as the question of Statement of Accounts and documents are concerned, the necessary documents on which the appellant relies has already been filed. However, the applicant Bank is directed to supply the Statement of Accounts to the defendants.”


8. It is alleged that despite the above direction, statement of Accounts and other documents relied on by the bank were not supplied to the petitioner.


9. Since the issue by non-compliance of Rule 9 was not adjudicated upon, petitioner moved a misc. application dated 26.2.1998 praying for deciding the preliminary issue. Copy of the application is Annexure A/4.


10. Thereafter by Order dated 21.04.1999 vide Annexure A/8, the Tribunal observed:-


“..in view of this, I direct the Banks/financial institutions, if they choose so, to make Interim Application showing cause for non-compliance of Rule 9 and also file documents along with IA, the interim application shall be decided/considered on its merits. Applicant banks/financial institutions to give appropriate application, if they choose so. Ten days time is granted to applicant banks/financial institutions to move an interim application, falling which OA shall stand dismissed. In the event, applications are filed, the same shall be considered on merits. Objection of learned Counsel for defendants are decided accordingly.”


11. It is alleged that even thereafter the bank chose not to file any application disclosing its reasons for not filing statement of accounts and other documents with the OA and also for not supplying copy thereof to the defendants. In these circumstances, the petitioner filed an application dated 12.05.1999 praying for dismissal of the OA, as the bank had failed to file any application, much less any within 10 days as directed by the Tribunal. True copy of the application is Annexure A/9. The bank filed objection to the same vide Annexure A/10. However, by order dated 11.09.2002 (Annexure A/12), the Tribunal observed as follows:-


“11.9.2002


OA No. 07/95


Present: Mr. S. K. Tyagi, Counsel for Applicant Mr. C. Dhingra Counsel for Defendants No. 1 to 3 Proceedings against defendant No. 4 have abated.


Today the matter is fixed for final arguments. Ld. Counsel for defendants No. 1 to 3 states that copy of the statement of accounts has been filed by the applicant only on 10.09.2002 with an advance copy to him.


For this reason he states that arguments cannot be heard today. His other contention is that this OA is liable to be dismissed since statement of account was not filed earlier as was required under Rule 9 of the DRT (Procedure) Rules 1993. He contends that certain preliminary objections were raised by these defendants earlier on the basis whereof three preliminary issues were framed by my learned predecessor on 27.09.1995 which included the issue of non-filing of statement of account and the documents and its consequences. The preliminary issues were decided by this Tribunal on 26.2.1996 but the third preliminary issue with regard to the consequences of non-filing of statement of account was not decided, accordingly, defendants No. 1 to 3 were compelled to file an application for deciding the said issue. Since in various OAs similar pleas were raised said application was decided along with other applications by this Tribunal by a common order on 21.4.1999 and a copy thereof was placed on record of this case. By the said order applicant was directed to file appropriate application seeking permission to file statement of account within 10 days failing which OA was to be dismissed. Even said order was not complied with. Accordingly, defendants No. 1 to 3 filed an application for dismissal of the OA. Applicant also filed one application stating therein that said order was not applicable in this case as it was passed in OAs. Application filed by the bank was dismissed as not pressed since application of defendants No. 1 to 3 was dismissed in default. His main contention is that since the earlier order was not complied with and statement of account has been filed at this belated stage the OA is liable to be dismissed. Above prayer for dismissal of OA has been opposed by the Counsel for the appellant. According to learned counsel for applicant OA cannot be dismissed merely on the technicalities which may be prejudicial to the interest of the bank. He further states that earlier this matter was dealt with by Mr. P.K. Mittal Advocate and because of his inept handling applicant was compelled to withdraw the brief from him and hand over the same to the present counsel. He states that after inspecting the file present counsel has taken appropriate steps. He further contends that photocopy of the statement of account was already on record.


I have given my careful consideration to the rival contentions of both the parties. I have also perused the order dated 26.2.1996 and I do not find any force in the contention of the Ld. Counsel for defendants No. 1 to 3 that the issue regarding non-supply of the statement of account and its consequences was not decided by the said order. Page 2 of the above order clearly shows that this issue was considered by this Tribunal and only for this reason applicant was directed to supply the statement of account to the defendants. It was further held at page 3 that justice cannot be defeated by technicalities. This direction itself shows that my learned predecessor did not deem it fit to dismiss the OA only because the statement of account was not filed. Accordingly, there was no force in the subsequent application for dismissal of the OA. Besides this in the order dated 21.4.1999 details of the OAs. Besides this in the order dated 21.4.1999 details of the OAs wherein this order was passed have not been mentioned. This order dated 21.4.1999 is merely a photocopy of an order not even signed by the presiding officer and merely OA No. has been mentioned by some one in hand. Had this order been passed in this OA the details of all the OAs which covered this order should have been also mentioned. Besides this counsel for the applicant has justified the delay in filing the certified copy of the statement of account which was on account of negligence on the part of earlier counsel. Applicant has also taken corrective measures by withdrawing the brief from the earlier counsel and entrusting the same to another counsel. Besides this, the application of defendants No. 1 to 3 for dismissal of the OA for non-compliance of the order dated 21.4.1999 was also dismissed in default but no steps were taken for its revival.


Be that as it may, OA cannot be dismissed on this technical ground as it would result in grave miscarriage of justice as the money involved in this OA is nobody’s personal money but is public money. Accordingly, the contention of Ld. Counsel for the defendants No.1 to 3 for dismissal of the OA is rejected. Since copy of the statement of account has been supplied only yesterday final arguments are not heard today. Fix for final arguments on 12.12.2002. Sd/- Presiding Officer DRT”


12. Aggrieved against the order dated 11.09.2002, the petitioner filed a Misc. Appeal before the Debt Recovery Appellate Tribunal vide Annexure A/13. The Bank filed its reply vide Annexure A/14 and petitioner’s rejoinder is Annexure A/15. The Misc. Appeal was dismissed by order dated 09.11.2005, hence this writ petition.


13. In the impugned order the DRAT has held that the Tribunal has decided the third issue also. The DRAT also observed that the OA is of the year 1995, but has not yet been disposed off.


14. On the facts of the case we find no merit in this writ petition. A perusal of the order dated 11.09.2002 shows that the statement of accounts by the applicant was filed on 10.09.2002 with an advance copy to the respondent. Hence there can now be no grievance of the petitioner that the statement of accounts has not been filed and copy of the same has not been supplied to him.


15. In our opinion, even if the OA before the DRT was not initially accompanied by the documents mentioned in Rule 9, those documents could be filed later. After all these are only procedural rules, and it is well-settled that rules of procedure are hand-maids to the justice. Hence in our opinion, even if the statement of accounts was not filed earlier it could be filed later. We agree with the submission of learned counsel for the bank that the OA could not be dismissed merely on technicalities. Hence, now the question whether the third issue was decided by the Tribunal or not has become irrelevant. We agree with the DRAT that the OA can not be dismissed merely on technicalities as it would result in grave miscarriage of justice as the money involved is public money. Writ jurisdiction is discretionary jurisdiction and we are not inclined to exercise our jurisdiction under Article 226 of the Constitution where admittedly, the petitioner has taken a loan and has not repaid it.


16. We are informed that loans of banks and financial institutions of over Rs.1,50,000 crores have not been recovered for various reasons including court orders and this is adversely affecting the economy of the country. Unless loans are recovered fresh loans cannot be granted to needy businessmen for setting up new industries, and this is adversely affecting the industrialization of the country.


17. In Mardia Chemicals Ltd. v. Union of India 2004 (4) SCC 311, the Supreme Court quoted from the Narasimham Commit

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tee which stated:- “Bank and financial institutions at present face considerable difficulties in recovery of dues from the clients and enforcement of security charged to them due to delay in the legal processes. A significant portion of the funds of banks and financial institutions is thus blocked in unproductive assets, the values of which keep deteriorating with the passage of time. Banks also incur substantial amounts of expenditure by way of legal charges which add to their overheads.” 18. In paragraph 34 of the same judgment the Supreme Court observed:- “it is also a fact that a large sum of amount remains uncovered. Normal process of recovery of debts through courts is lengthy and time consuming and is not suited for recovery of such dues. For financial assistance rendered to the industries by the financial institutions, financial liquidity is essential failing which there is a blockade of large sums of amounts creating circumstances which retard the economic progress followed by a large number of other consequent ill effects.” 19. In this case there is no equity in the petitioner’s favour and hence we are not inclined to exercise our discretion under Article 226 of the Constitution in this case. 20. For the reasons given above, the writ petition is dismissed.
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