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State Bank of India, Branch situated at the Administrative Office, Kanpur v/s Sunil Kumar Gupta & Another


    M.A. No. 40 of 2020 In Regular Appeal No. 65 of 2019

    Decided On, 24 February 2021

    At, Debts Recovery Appellate Tribunal at Allahabad

    By, THE HONOURABLE MR. R.S. KULHARI
    By, CHAIRPERSON

    For the Appellant: Sandeep Arora, Advocate. For the Respondents: Vivek Kumar Singh, Advocate.



Judgment Text

Oral

1. Learned counsel for the respondents files reply to the recall application, copy of which has been served. The learned counsel for the Bank does not want to file any rejoinder, therefore, they are heard.

2. The present recall application has been filed on behalf of the appellant-Bank to recall the judgment dated 09.01.2020 passed by this Tribunal. The respondents challenged the proceedings of the bank by filing the S.A. under section 17 of the SARFAESI Act before the DRT. The proceedings were set aside by the Presiding Officer, DRT on the ground that the representations filed by the borrowers under section 13(3-A) of the SARFAESI Act were not decided and communicated. The Bank preferred the appeal no. R-65/2019 before this Tribunal assailing the order dated 20.05.2019 passed by the DRT, Lucknow.

3. This Tribunal vide order dated 09.01.2020 dismissed the appeal and affirmed the order of the Tribunal below on the ground that; (1) the Bank had not decided the representation dated 04.09.2018 sent through registered post dated 05.09.2018. (2) The bank has not produced the Inward Register to show that no such representation was received. (3) The letter dated 18.09.2018 written by the borrowers within 60 days ought to have been treated as representation by the Bank, that too was not responded by the Bank.

4. The appellant-Bank did not challenge the findings of this Tribunal before the Hon’ble High Court. However, the recall application has been filed mainly stating that the borrowers had filed a manufactured postal receipt dated 05.09.2018 and obtained the order on the basis of such forged receipt. Some photocopies of Inward Register have also been filed with the recall application.

5. Learned counsel for the appellant submits that the postal receipt dated 05.09.2018 was not issued by the post office- Industrial Estate, Sandila, District Hardoi, as the information received by the bank on 10.02.2020 after decision of the appeal, therefore, the borrowers had played fraud on this Tribunal. As such the order may be recalled in view of the judgment passed by the Hon’ble Supreme Court in Indian Bank Vs. M/s Satyam Fibres (India) Pvt. Ltd., AIR 1996 Supreme Court 2592.

6. On the contrary, the learned counsel for the respondents raised the preliminary objection inviting attention of this Tribunal towards the judgment rendered by the Hon’ble Supreme Court in Cine Exhibition Pvt. Ltd. Vs. Collector, District Gwalior and Ors., 2013 SCC 698, to canvass that the application has been filed for rehearing of the case on the basis of some alleged forged documents, which can only be considered in a review petition and no application for recall can be entertained, wherein the element of fraud is alleged. Therefore, it be summarily rejected.

7. The learned counsel further contends that the postal receipt was never issued by the Post Office, Sandila as stated by the Bank, but the representation was dispatched from the post office Mohan Lalganj, Lucknow, wherefrom the postal receipt dated 05.09.2018 was issued. Thus, the Bank has filed the recall application on the basis of wrong facts, which is liable to be dismissed with heavy cost. Further, the additional documents filed in support of Inward Register were already with the Bank, so those cannot be considered for recalling the order.

8. Having heard the learned counsels for the parties and on perusal of the judgment dated 09.01.2020, it is apparent that the appeal was finally decided by the impugned order. The Bank has filed the recall application and no review petition has been filed. In the present application, the issue of committing fraud has been alleged. The Hon’ble Supreme Court in Cine Exhibition Pvt. Ltd. Vs. Collector, District Gwalior (Supra) at paragraph no. 8 has held that generally an application for correction of a typographer error or omission can be entertained by way of modification/recall application, but the application intending to review a judgment can only be entertained in the shape of review. Undisputedly, the present application has not been filed for any typographical correction, but for the purpose of reopening the case, adducing additional evidence. Thus, such recall application is liable to be dismissed on this ground alone.

9. However, taking note of the proposition that mentioning of wrong term in the application should not deprive the litigant to get the matter adjudicated, therefore, even if treating the application as review, the same is liable to be dismissed on the following grounds.

A. The Bank has produced the certificate obtained from the post office, Industrial Estate, Sandila that “the registered receipt no. 2000 dated 05.09.2018 was not issued from that office”, but the borrowers have placed on record that the registry was dispatched from the post office, Mohan Lalgang, Lucknow and the letter dated 18.02.2021 has also been sent to that post office. This fact has not been disputed by the Bank by filing rejoinder. Thus, the Bank has obtained the certificate from the Post Office, Sandila in a casual manner without ascertaining that the postal receipt in question was not issued from that post office. As such, the Bank has failed to bring any prima facie document on record that any fraud has been played by the borrowers.

B. I respectfully agree with the principle laid down by the Hon’ble Supreme Court in Indian bank Vs. M/s Satyam Fibres (India) Pvt. Ltd. (Supra) that the fraud may vitiate all the proceedings and the order may be recalled on the basis of proof of fraud, but since the appellant-Bank has failed to bring on record any element of fraud, therefore, this application cannot be proceeded further.

C. The appeal was dismissed not only on the basis of postal receipt dated 05.09.2018 but also on other two grounds as stated above. A detailed order has been passed after due consideration of all the facts and the documents available on record. Thus, the case already decided on merits on the basis of evidence available at that time cannot be reopened and the same Tribunal cannot rehear the case, which could have been challenged by fili

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ng the appeal before the appropriate court. D. Photocopies of the Inward Register submitted by the Bank with the recall application cannot be taken on record at this stage because the same were already lying with the Bank, when the case was heard by the DRT and by this Appellate Tribunal. Hence, these documents cannot be considered to reopen the case, which has already been decided on merits. 10. In view of the above, the present application is misconceived and devoid of merits. Hence, the same is dismissed with no order as to costs. 11. A copy of this order be sent to the parties as well as to the DRT concerned and be also uploaded on the e-DRT portal.
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