KISHORE K MEHETA Vs. HDFC BANK

JUDGEMENT

(1.) By this order I am deciding the following questions which have arisen for consideration:

(2.) Several matters were fixed before this court involving the aforesaid issues. Therefore, I permitted the Counsel appearing for the various parties in various proceedings to address me on the aforesaid questions. I have accordingly heard submissions of the Counsel appearing for the parties on 7th August, 2007 and 21st August, 2007.

(3.) In Notice of Motion No. 40 of 2007 in insolvency Notice No. 226 of 2006, the learned Senior Counsel Mr. D Vetre appearing for the judgment debtor has made detailed submissions. He relied upon the decision of the apex Court in the case of Paramjeet Singh Patheja (supra). He invited my attention to the submissions made before the Apex Court and in particular in clause Nos. (i) , (j) and (k) of paragraph No. 14 of the said decision. He submitted that the recovery certificate issued by the Debt recovery Tribunal is neither a decree nor an order within the meaning of sub-section (2) of section 9 of the P. I. Act. He submitted that in Paragraph No. 27 of the said decision the apex Court has held that the provisions of the P. I. Act have to be construed strictly. He, therefore, submitted that the view taken by this Court in the case of Deepak Cochharthat restrictive meaning cannot be given to the words "decree" or "order" is no longer a good law. He submitted that the view taken by the learned Single Judge that provisions of sub-section (2) of section 9 of the P. I. Act must be given widest possible interpretation is not correct in view of the decision of the apex Court in the case of Paramjeet Singh patheja (supra). He submitted that the test laid down by the Apex Court in the aforesaid decision is that the "decree" or "order" contemplated by sub-section (2) of section 9 must be of a Court. He submitted that the Apex court has held that the "decree" or "order" contemplated by sub-section (2) of section 9 must be of a Civil Court under the Code of civil Procedure, 1908 (hereinafter referred to as "the said Code"). He submitted that another test laid down by the Apex Court is that the proceeding in which "decree" or "order" is passed must be initiated on the basis of a plaint. He submitted that the proceedings before a Debt Recovery Tribunal are not initiated on the basis of the plaint. He submitted that the Apex Court has held that the words "decree" and "order" used in the section are as understood under the said code. He submitted that the Apex Court has held that the Bombay amendment of the year 1939 and later Central amendment of the year 1978 intended to refer to only the "decrees" and "orders" as defined under the said code. He submitted that all the Tribunals are not courts and therefore, Debt Recovery tribunal cannot be termed as a Court. He invited my attention to the conclusions recorded by the Apex Court in Paragraph No. 60 and submitted that the recovery certificate issued by the Debt Recovery Tribunal is neither a "decree" nor an "order". He submitted that the adjudication made by the debt Recovery Tribunal cannot be treated as an adjudication made in a suit.