KOWA SPINNING LIMITED Vs. DEBT RECOVERY TRIBUNAL

JUDGEMENT

(1.) In course of adjudication of proceedings in a Court of Law sometimes vexed questions and complex situations do emerge which demand imperative penetration and intensive discernment to clear the maze and pave a luminous path through the labyrinthine so that the litigants precisely know their exact podium and become able to ventilate their grievances as permissible in law before the right forum without remaining in a state of uncertainty and indefiniteness. Certitude ushers in the quintessential virtues of law in an organized society and the absence of the same creates a shambolic situation which is not only unwarrantable but also law is at loath and averse to countenance the same. The cases at hand fresco a picture which not only creates a stir and an unusual ado to judicial discipline but also provokes and in a way accelerates the institutional syllogistic rethinking to have a deeper and greater probe into the arena of controversy. The spinal issue spiralled to this Court when the writ petitions were instituted assailing the orders passed by the Debts Recovery Tribunal (in short 'the Tribunal') on the foundation that Debts Recovery Appellate Tribunal (for short 'the Appellate Tribunal') had already pronounced a verdict that against an interlocutory order passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for brevity'the Act'), no appeal lies. The learned single Judge felt that a complex situation had surfaced inasmuch as this court in the case of M/s. Earnest Health Care Limited and others v. Debts Recovery Tribunal and others (W. P. No. 4955/2000) placing reliance on the decisions rendered in the cases of M/s. Kavita Pigments and Chemicals (Pvt.) Ltd. v. Allahabad Bank AIR 2000 Patna 43, M/s. Shoes East Ltd.. v. Allahabad Bank, AIR 1997 Delhi 325 and Bank of India v. Baroda Cables, 1999 ISJ (Banking) 309 had expressed the view that any order passed by the Debts Recovery Tribunal is appealable. In that background, the learned single Judge in paragraph 5 of the order dated 31-1 -2002 recommended for hearing of the matter by a larger Bench as provided under Rule 9(1) occurring in Chapter-I of the M.P. High Court Rules & Orders. Thereafter, the matter was placed before the Division Bench and the Division Bench considering the circumstances in entirety felt that the question arising for consideration required to be considered and determined by a Full Bench. That is how this batch of writ petitions has come before us.

(2.) Before we embark upon the legal issues that have been urged with vehemence, emphasis and eloquence by Shri Kishore Shrivastava, learned counsel for the petitioners, we think it apposite to uncurtain the facts in Writ Petition No. 5809/2001. We may hasten to state that in course of our deliberation, we will briefly advert to the facts in other cases as we are required to finally dispose of the cases, reference having been made under Rule (9) (1) of the M.P. High Court Rules & orders. The factual score as depicted in the writ petition is that the respondent No.2, State Bank of Indore, instituted a proceeding for recovery against the petitioners and the respondents No.3. After filing of the original application, the Debts Recovery Tribunal (in short 'the Tribunal') instead of issuing notices to the respondents therein for filing of reply on merits received evidence on behalf of the Bank and only after such receipt the Tribunal directed issuance of notices to the defendants. The petitioners appeared on the date of appearance i.e. 20-11-2000 and filed their reply. In their written statement /reply, the petitioners did not admit the claim put forth by the Bank and raised serious disputes with regard to the facts alleged in the petition filed by the Bank. As the Tribunal had received evidence on affidavits, the petitioners filed an application under proviso to Sub-Rule (6) of Rule 12 of the Debts Recovery Tribunal Procedure Rules, 1993 (in short 'the Rules') to ignore the evidence that came on record by way of affidavit. The said application was dealt with by the Tribunal and by order dated 8-1-2001, Annexure P/5, it arrived at the conclusion that no case for cross-examination was made out. It is set forth in the writ petition that the application was not sought seeking indulgence of the Tribunal for grant of permission to cross-examine the deponents of the affidavits, but, objecting the procedure adopted by the tribunal by which it had received the evidence on affidavits! Being dis-satisfied by the aforesaid order, the petitioner knocked at the doors of this Court in W. P. No. 660/ 2001 in which the petitioner questioned the defensibility of the order passed by the Tribunal and simultaneously raised the issue of validity of the provisions contained in Regulations 31 & 32 of the Debts Recovery Tribunal Regulation of Practice, 1998 (hereinafter referred to as 'the Regulations') on many a ground. This court vide order dated 14-2-2001 dismissed the petition holding that the vires had been considered in Writ Petition No. 5262/2000 and the provisions in question have been held to be valid. It is contended that after passing of the aforesaid order, the petitioners by way of abundant caution filed an application for cross- examination of the deponents as the said prayer was not made in the earlier application. In the application, the petitioners set out the reasons why cross-examination was sought for. The Bank filed a reply in opposition to the said prayer. It is alleged that the prayer was made before the Tribunal to await the decision of the Special Leave Petition which was preferred against the decision of this court holding the Regulations to be intra vires, but the Tribunal declined to accede to the said prayer and eventually on 5-11-2001 rejected the application indicating that the arguments were heard on application for cross-examination on earlier occasion, though as an actual fact, no arguments were ever advanced. The Tribunal came to hold that the prayer for cross-examination was not maintainable as the earlier application had been rejected on the selfsame ground. The said order is the subject matter of assail in this writ petition. As has been indicated earlier, a query was made why the petitioners had not approached the Appellate Tribunal. At that juncture, it was submitted by the learned counsel for the petitioners that the Appellate Tribunal in Appeal No. 32 of 2001 and other connected appeals has held that no appeal against an interlocutory order is maintainable. In view of that situation, it was thought appropriate that the matter should be dealt with by a larger Bench.

(3.) In course of hearing, Mr. Kishore Shrivastava, learned counsel appearing for the petitioners in all the writ petitions, submitted that though the learned single Judge expressed the view that 'an order' would include 'any' or 'every order' passed by the Tribunal, the said view is not correct if the scheme of the Act is scanned in proper perspective. It is contended by him that an appeal lies to the Appellate tribunal only against the final order passed by the Debts Recovery Tribunal and not against any interlocutory or interim order. In fact, this was the sole issue before the learned single Judge who recommended the matter to be heard by a larger Bench and eventually the Division Bench expressed the view that the matter necessitated to be adjudicated by the Full Bench. However, Mr. Kishore Shrivastava wanted us not only to dwell upon the aforesaid singular issue, but also to consider the validity of the Regulations 31 & 32 of the Regulations framed by the Tribunal.