GANGARAM BISESHWAR AGRAWAL Vs. CANARA BANK

JUDGEMENT

(1.) Canara Bank, respondent in Writ Petition 4007/2005; filed Special Civil Suit 186/1996 against Shri Hari Ganga Cement Ltd. and five others in the Court of Civil Judge, Senior Division, Nagpur for recovery of Rs. 28045225. 32/- only which was later on transferred to Debts Recovery Tribunal, nagpur (DRT) and came to be numbered as OA 172/2001. Similarly Union Bank of India, respondent in Writ Petition 4008/2005; had filed Special Civil Suit 150/1996 against Shri Hari Ganga Cement Ltd. and five others for recovery of rs. 25465110/- only which upon transfer to Debts Recovery Tribunal, Nagpur came to be numbered as OA 210/2001. State Bank of India, respondent in Writ petition 4646/2005; had also filed Special Civil Suit numbered 222/1996 for recovery of Rs. 31811607. 90/- only against Shri Hari Ganga Cement Ltd. and five others which upon transfer to Debts Recovery Tribunal, Nagpur came to be numbered as OA 173/2001. Present petitioner was defendant No. 2 in all these cases. Grievance made by petitioner in all these cases is that on 9-7-2004 DRT had fixed only interlocutory applications for hearing and in spite of that, after dismissing those interlocutory applications (1 each in three cases) it also considered main case i. e. Original Application in all three cases and allowed it. When he pointed out the mistake by moving Review Application in each O. A. , drt dismissed his review applications also. The three Banks mentioned above have raised preliminary objection by pointing out that the remedy of filing appeals before Appellate Tribunal i. e. DRAT is available to the petitioners.

(2.) The facts in the matter are more or less identical. The impugned order dated 6-7-2005 rejecting review in all three matters is common and DRT has passed final judgment on 9-7-2004. The review application moved by petitioner in all these cases is filed on 8-9-2004. It appears that the final arguments of respective Banks were heard by DRT on 24-9-2003 and thereafter the matter was fixed for final arguments of defendants and was adjourned from time to time between 21-1-2004 to 6-7-2004. In all these matters, on 6-7-2004 petitioner filed interlocutory Application seeking production of alleged equitable mortgage as mentioned by respective Banks in their plaints. The said application was fixed for hearing on 9-7-2004 in all three matters and it came to be rejected. After its rejection, DRT also passed final orders in respective Original Applications of three Banks and allowed the same. Contending that Original Applications could not have been considered for final decision on 9-7-2004 and complaining of denial of opportunity of arguments, petitioner filed applications for review under section 22 (2) (e) of DRT Act and on 6-7-2005, DRT dismissed all these 3 applications for review. Adv. V. V. Bhangade, learned counsel appearing for petitioner in all 3 matters contended that when Original Application was not fixed on 9-7-2004 for final arguments by petitioner, DRT could not have disposed of it finally. He states that order refusing review is erroneous and deserves to be quashed and set aside. In order to show that the remedy of appeal under section 20 of DRT Act is not available he has placed reliance upon judgment of Delhi Debts Recovery Appellate Tribunal in case between hemender Sharma vs. Indian Overseas Bank reported at // (2001) BC 81. He also pointed out order dated 24-2-2004 in Writ Petition No. 802/2004 of this Bench. He also relied upon the judgment reported at 2002 (1) Mh. L. J. (SC) 1 = 2002 (3) SCC 692 between Kalpataru Agro Forest Enterprises vs. Union of India.

(3.) The respective counsel Adv. Mrs. Naik, Adv. Samudra and Adv. Anilkumar, appearing for respective Banks/respondents invited attention of Court to the fact that final arguments of Banks in their respective Original Application were over in September, 2003 itself and thereafter matter was fixed for final arguments of present petitioner/defendants. They state that upto 6-7-2004, original defendants obtained adjournments on one count or the other and on 9-7-2004 came up with interlocutory applications. According to them these applications were belated and filed only to delay final disposal of Original applications on merit. They invite attention to observations made by DRT in impugned order dated 6-7-2005 and argue that the DRT was right in refusing to interfere in review jurisdiction. They argue that the remedy of appeal under section 20 of DRT Act is available and before filing appeal, petitioner has to deposit 75% of the amount awarded by DRT in view of requirement of section 21. They state that this provision for appeal cannot be allowed to be defeated by entertaining writ petition directly. They also argue that if DRAT finds that condition of deposit is to be relaxed, that jurisdiction is available to it. They have placed reliance upon judgment of Hon. Apex Court reported at AIR 2001 SC 3208 between Punjab National Bank vs. O. C. Krishnan and orders dated 10-2-2005 passed by me in the Writ Petition 5185/2004 dismissing it in motion hearing. They contend that appeal can be filed against order in review and in support rely upon judgment of Debts Recovery Appellate Tribunal, Mumbai between Syndicate Bank vs. Dr. B. V. Ramlinga Setty reported at II (2000) BC 36. They have also relied upon the judgment of Patna High Court reported at AIR 2000 Patna 43, M/s Kavita Pigments and Chemicals vs. Allahabad Bank to argue that appeals can be filed against all orders of DRT and writ petitions should not be entertained.