KRISHAN KUMAR PAREEK Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THIS writ petition has been filed for quashing the impugned order dated 11-9-2008 (Annex.-2)by which proceedings have been initiated by the Debts Recovery Tribunal, Cuttack (hereinafter referred to as the "tribunal")for execution of a decree passed by the Civil Court by issuing the show cause and further challenging the order dated 20-11 -2008 (Annex.- 4) by which the objection submitted by the petitioner that the original application filed by the Bank was not maintainable before the Tribunal on the ground that the decree had been passed by the Civil Court on 25-7-2006 for a sum of Rs. 7,96,660/- with P. I. and F. I. etc. subsequent to the amendment. Thus the application was barred by the provisions of Section 31 (A) of the Recovery of debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the 1993 Act' ).

(2.) THE facts and circumstances giving rise to this case are that the opposite party no. 1 - State Bank of India filed an Original application before the Tribunal on the factual matrix that the said bank after considering the application made by the present petitioner/defendant sanctioned a loan of rs. 5 lakhs in the form of cash credit on 15-1-1991. The petitioner/defendant had availed the loan after executing requisite loan documents. The other partners of the firm stood as guarantors in their personal capacity for the said loan and for that purpose the documents relating to the property were deposited by creating equitable mortgage. The loan amount was disbursed in cash in the account of the petitioner/defendant. It was withdrawn. However, he did not make the repayment as per the agreement. The petitioner/defendant sold away the stocks and did not deposit the sale proceeds into the account. Being aggrieved, legal notice was served on the petitioner/defendant on 22-11-1995. But the petitioner did not consider it appropriate to make the payment of the outstanding dues. Opposite party - bank filed Title Mortgage Suit, i. e. . TMS No. 72 of 1996 for recovery of a sum of rs. 7,96,660/- on 21-7-1996 with P. I. and f. I. at the rate of 17% per annum in the court of learned Civil Judge (S. D.), rourkela. In spite of service of summons, the petitioner/defendant did not enter appearance nor did he file any written statement and also did not contest the suit. Thus, the suit proceeded ex parte against the petitioner/defendant. The learned Civil Judge finally decreed the suit against the petitioner/ defendant vide judgment and decree dated 9-2-2001 and final decree was passed on 25-7-2006. Though in spite of the decree the petitioner/defendant failed and neglected to pay the decretal amount within stipulated time, the opposite party bank resorted to the procedure of execution of the decree. Such jurisdiction was changed from the Civil Court to the Tribunal under Section 31 (A) of the 1993 Act. The outstanding decretal dues calculated with interest as on 15-7-2008 came to Rs. 49,55,622/- inclusive of interest etc. The petitioner/defendant opposed the said execution proceedings on the ground that such execution proceedings were not maintainable in view of the fact that the decree had been passed by the Civil court subsequent to commencement of the amendment Act, i. e. insertion of Section 31 (A) of the Act as the amount had been less than ten lakhs. The said application has been rejected by the Tribunal vide impugned order dated 20-11-2008.

(3.) THE Tribunal further held that in the instant case admittedly the final decree was passed by the Civil Court on 25-7-2006 for a sum of Rs. 7,96,660/- with P. I. and F. I. at the rate of 17% per annum, the application was filed for issuance of recovery certificate for a sum of Rs. 49,55,622/- inclusive of decretal amount and interest from the date of filing of TMS No. 72/1996 till the date of filing of the O. A. As the said amount was over and above Rs. 10 lakhs, the Civil Court had no jurisdiction to entertain the same and for recovery of the said amount the Tribunal has jurisdiction to issue a fresh certificate. Hence, this writ petition.