ZUBAIDA BEGAUM Vs. MANAGER INDIAN BANK

JUDGEMENT

(1.) The above Writ Petition has been filed by the Petitioners to quash the Order passed by the 5th Respondent/Debts Recovery Appellate Tribunal, in No AIR(823/2013) dated 16.12.2013 and to direct the 5th Respondent to dispose of the Appeal without insisting upon the Waiver Application. The case of the Petitioners is that they are the borrowers from Indian Bank during 1989. Due to the failure to pay the dues, Bank filed a Civil Suit for recovery of Rs. 2,37,50,050.46p. before this Court. The Suit was numbered and taken on file. In the meantime, the Debts Recovery Tribunal was constituted at Chennai on 4.11.1996. Therefore, the Suit papers were returned by the Registry of this Court to file the same before the Debts Recovery Tribunal, Chennai within a month's time. The Bank, accordingly represented the same with a delay of 18 days in representation. The delay was considered with instructions to represent in the proper format. Thereafter, the Plaint was represented in the proper format with a Petition to condone the delay of 347 days. That delay was condoned by the Assistant Registrar of the Debts Recovery Tribunal and OA was numbered as O.A. No. 1719/1998 and transferred to the Debts Recovery Tribunal-II and renumbered as O.A. No. 327/2001. The Debts Recovery Tribunal-II, by its Order dated 11.4.2007 allowed O.A. No. 327/2001. Against that, Appeal in R.A. No. 35/2007 was filed before the Debts Recovery Appellate Tribunal. The Debts Recovery Appellate Tribunal by order dated 9.8.2011 in R.A. No. 35/2007, set aside the Order of the Debts Recovery Tribunal-II and directed the Debts Recovery Tribunal-II to deal with the Interim Application filed for condoning same. That order reached finality as the challenge made against that Order failed upto Hon'ble Supreme Court. Thereafter, the matter was taken up by the DRAT and posted the case for maintainability on 16.12.2013 on the ground that an Application under Section 21 of RDDBFI Act, 1993, for waiver has to be filed and a copy of the Affidavit in M.A. No. 56/2013 filed by the Bank has to be produced. Since, on the issue of maintainability, question of filing Waiver Application does not arise, as the Appeal is preferred against the Order allowing the Petition to condone the delay by the Bank, this Writ Petition has been filed for the aforesaid prayer.

(2.) The learned Counsel for the Petitioners would primarily contend that the impugned Order passed by the Debts Recovery Appellate Tribunal directing the Petitioners to file an Application for waiver under Section 21 of RDDBFI Act, 1993 [hereinafter referred to as "the Act"], is absolutely illegal for the reason that there was no amount of debt determined by the Debts Recovery Tribunal under Section 19 of the Act. He has also referred to Section 21 of the Act to reiterate his contention that unless and otherwise the amount of debt is determined by the Tribunal under Section 19 of the Act, there is no question of either the Petitioners filing an Application for waiver nor the authority directing them to file an Application for waiver. In support of his contention, he placed reliance on the judgment of the Calcutta High Court Sutapa Chatterjee and another v. UCO Bank and others, 2013 4 BankCas 252.

(3.) Per contra, Mr. Jayesh B. Dolia, learned Counsel for the 1st Respondent/Bank, while reiterating their averments made in their Counter Affidavit would submit that when the Debts Recovery Appellate Tribunal, by invoking Section 21, has directed the Petitioners to file an Application for waiver, no prejudice would be caused to them in filing the same. He further adds that by filing an Application for waiver before the Debts Recovery Appellate Tribunal and seeking waiver, they have filed the Writ Petition invoking the jurisdiction under Article 226 of the Constitution of India. He submits that the Writ Petition is too premature and liable to be set aside on this ground alone. Hence, he prayed for the dismissal of the Writ Petition.