DEVASSIA Vs. SOUTH INDIAN BANK LTD

JUDGEMENT

(1.) Petitioner is the judgment debtor in O. S. No. 317 of 1994 of the Sub Court, Pala, obtained by the first respondent bank. Pursuant to the constitution of the Debt Recovery Tribunal, the bank approached the said Tribunal seeking issuance of a certificate under S.31A of the Recovery of Debts Due to Banks and Financial Institutions Act. The petitioner is aggrieved that without giving him an opportunity to be heard the said request was allowed by the Tribunal vide Ext. P2 order.

(2.) Learned counsel for the petitioner submitted during hearing that the Tribunal, without affording an opportunity to the petitioner to represent in the matter, has proceeded to issue the certificate simply following the amount claimed in the E.P. filed by the Bank and that the bank actually is not entitled to the full amount mentioned in the E.P. for the reason that Rs. 6 lakhs had been paid by the petitioner in various instalments and accompanied by memos, wherein specific mention had been made that the payments were intended to be appropriated towards principal alone. If the amounts were so appropriated the bank would not be entitled to full amount mentioned in the E.P. This is an aspect the petitioner could have brought to the notice of the Tribunal if only he was given an opportunity to be heard. Therefore, the prayer is to remit the matter to the Tribunal to afford such an opportunity.

(3.) Shri. K. Prabhakaran, who appeared for the first respondent, submitted that there is no provision in the Act of the Rules for issuing notice to the debtor before a certificate under S.31A is granted and in that perspective the impugned order does not suffer from any defect. The counsel further submitted that even if the petitioner is aggrieved, he has effective alternative remedy before the Appellate Tribunal constituted under the Act and as such writ jurisdiction cannot be involved to assail the impugned order. In answer to the above said contention the stand of the petitioner is that there is no effective remedy eventhough there is provision for appeal in so far as it is mandatory that the petitioner should deposit 75% of the decree amount if at all the appeal should be taken as maintainable. Here, in the instant case, what is impugned before the Tribunal is not the correctness of the decree amount; but only the validity of the order issued by the Tribunal specifying the amounts to be recovered by the certificate and that if it is made mandatory that even for raising such a contention before the Appellate Tribunal the petitioner should deposit 75% of the amount, the provision for appeal will be rendered ineffective and nugatory. Learned counsel also relied on case laws in support of his contentions.