NASHA TOYS PVT LTD Vs. INDIAN BANK

JUDGEMENT

(1.) THIS application under Article 226 read with Article 227 of the constitution of India was filed by the defendants of Original Application No. 112 of 1997 being an application under Section 19 of the Recovery of Debts due to banks and Financial Institutions Act, 1993, hereinafter for brevity referred to as 'said Act', challenging the order dated 17th October, 2000 passed in the said original Application being the judgment allowing the application filed by the respondent no. 1 herein, the Indian Bank, under Section 19 of the said Act for recovery of dues amounting to Rs. 28,05,780. 18 paise, the order dated 11th september, 2002 passed by the Presiding Officer, Kolkata Debts Recovery tribunal rejecting the Misc. Application No. 33 of 2001 arose out of the prayer for setting aside the ex parte judgment dated 17th October, 2000 passed in Original application No. 112 of 1997 and the judgment dated 22nd March, 2004 passed by the Debt Recovery Appellate Tribunal at Kolkata challenging the said order dated 11th September, 2002 rejecting the said appeal.

(2.) IT is the grievance of the writ petitioners that ex parte judgment dated 17th October, 2000 passed in the said Original Application was not legally sustainable as the fixation of the date for passing such ex parte judgment as earlier passed by the Debt Recovery Tribunal was challenged during pendency of the matter seeking setting aside of such decision to pronounce the judgment ex parte by filing an application, which was not at all considered by the order of 11th september, 2002, passed in the Misc. Application No. 33 of 2001, wherein said ex parte judgment was assailed, stood rejected on the ground of limitation. It is submitted that said order was bad in law as the ex parte judgment dated 17th october, 2000 since was not communicated to the defendants following the mandatory provision of Section 19 (5) of the said Act, which stipulates to serve the copy of every order to the applicant and defendant by the Tribunal, there was no question of attraction of time limit and delay to file it, which was the reason to pass rejection of Misc. Application and that the order dated 22nd March, 2004 passed by the Appellate Tribunal also was bad in law for non-consideration of the said provision of Section 19 (5) of the Act, when the appeal was laid challenging the said order of 11th September, 2002 passed in the Misc. Application aforesaid.

(3.) THIS application has been opposed by filing an affidavit-in-opposition by the respondent no. 1, the Bank, who initiated the proceeding under Section 19 of the said Act for recovery of the dues as already referred to, which was registered as Original Application No. 112 of 1997. The maintainability question of present application has been raised by contending, inter alia, that the ex parte judgment delivered on 17th October, 2000 by the Presiding Officer, Kolkata Debts recovery Tribunal No. 1 in Original Application aforesaid, the order dated 11th september, 2002 passed by the Presiding Officer of the said Tribunal in Misc. Application No. 33 of 2001 arose out of said Original Application and the order dated 22nd March, 2004 passed by Debts Recovery Appellate Tribunal, Kolkata in appeal No. (No. not mentioned) of 2003/application No. 5 of 2003 arose out of said Original Application and the recovery proceeding being Recovery Proceeding no. 110 of 2000 of the said Tribunal, which are assailed in the writ application since have already been given effect to and implemented by realization of the claim amount from the respective parties including the writ petitioners herein, there is no cause of action existing at the present moment to interfere with the aforesaid orders, which are under challenge herein.