Present writ petition has been filed by the petitioners for following reliefs: i. issue a writ, order or direction in the nature of certiorari quashing the order dated 18.12.2009 passed by the Debts Recovery Appellate Tribunal, 147-A- 58/1, Jawahar Lal Nehru Road, Allahabad in S.R. No.175 of 2009 (Annexure- 18 to the writ petition).
ii. issue a writ, order or direction in the nature of mandamus directing the respondent no.4, Debts Recovery Appellate Tribunal, 147-A-58/1, Jawahar Lal Nehru Road, Allahabad to decide the appeal of the petitioners without insisting for deposit of 75% of the residue amount of tax.
iii. issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
iv. award cost of writ petition to the petitioners."
Brief background of the case is that in execution case No.21 of 2004, Union of India vs. Brij Agro Products Private Limited, Debts Recovery Tribunal on 23.09.2009 passed following order:
"It is therefore, ordered:-
That the Execution application No.21 of 2004 initiated by the decree holder Union Bank of India against the judgment debtors/defendant nos. 2/1 and 2/2 is hereby allowed on contest and allowed with cost exparte against other judgment debtors with cost.
The decree holder bank do get a Recovery Certificate to the tune of Rs.12,09,630=00 (Rupees 12 lacs nine thousand six hundred and thirty only) together with pendentelite and future interest @ 15% per annum with quarterly rest with effect from 01.11.2003 against the judgment debtor nos. 1 to 4 till realization and Rs.27,13,763-00 (Rupees twenty even lacs thirteen thousand seven hundred and sixty three only) together with pendentelite and future interest @ 15% per annum with quarterly rest with effect from 01.11.2003 against the judgment debtor 5 till realization is made from judgment debtors/defendants. The aforesaid recovery certificate shall be subject to adjustment of the amount paid by the judgment debtors under compromise from the date of its receipt.
The judgment debtors/defendants are hereby restrained by means of injunction from transferring or alienating or dealing with the mortgaged properties and hypothecated stocks a detailed in the Execution Application in any manner whatsoever without first paying the claim of the decree holder bank.
In the event of failure to repay the recovery amount together with interest and cost the decree holder bank will be entitled to sell the mortgaged properties and hypothecated stocks of the judgment debtors/defendants.
In case the debt amount is not recovered from the sale of the mortgaged properties and hypothecated stocks of the judgment debtors/defendants then to recover the same from the other personal assets/properties of the judgment debtors/defendants.
Let a Recovery Certificate be issued immediately under Section 31A of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993.
The decree holder bank is hereby advised to take appropriate action against the Branch Manager who had written unauthorised letters to the judgment debtors without any sanction of the compromise.
Let copies of this order be supplied to the parties forthwith as per rules.
The execution case is thus disposed of."
Aggrieved against the aforesaid order, the Brij Agro Products proceeded to file appeal under Section 20 of Recovery of Debts Due to Banks & Financial Institutions Act, 1993 before the Debts Recovery Appellate Tribunal. In the said appeal, the Appellate Tribunal proceeded to pass following order:
"S.R.No.175/09 Date: 18.12.2009 Present, Shri Gautam Kumar, counsel for the appellants Shri V.L. Verma, counsel for the respondent. Arguments heard. The learned counsel for the appellant has invited my attention towards the impugned order. The Presiding Officer, DRT has issued recovery certificate in the sum of Rs.12,09,630/- together with pendentelite and future interest @ 15% per annum with quarterly rest with effect from 01.11.2003 against the appellants. This is also mentioned in the judgment that aforesaid recovery certificate shall be subject to adjustment of the amount paid by the judgment debtors under compromise from the date of its receipt.
According to the counsel for the appellants, they deposited a sum of Rs.5,70,185/- as is apparent from the judgment itself at the foot of the internal page no.4. The rest f the amount of Rs.6,38,945/- is remained as outstanding. Court fees on this amount be paid within a week before the Registrar of this Appellate Tribunal, failing which the appeal will not be registered.
On the other hand counsel for the respondent submits that amount has already been adjusted. This question requires further evidence.
In the meantime, the appellant is directed to deposit the court fee on Rs.6,38,945/- as already ordered.
Question of deposit of court fee on the rest amount is kept open. Both the parties are directed to file statement of accounts with affidavits on the next date of hearing.
Arguments on admission of the appeal also heard. Counsel for the appellant is ready to deposit 50% of the residue amount of Rs.6,38,945/-, but he has not made out any ground for waiving 25% of the said amount. It is therefore, ordered that 75% of the residue amount of Rs.6,38,945/- be deposited with the bank within a month, failing which the court will be constrained to dismiss the appeal under Section 21 of the RDDB &FI Act, 1993.
Parties are directed to show the compliance of this order before the Recovery Officer on 18.01.2010.
Respondents shall file counter affidavit within six weeks with advance copy to the counsel for the appellants and counsel for the appellants may filed rejoinder within four weeks thereafter. As agreed by the counsel for both the parties, the case is fixed for 3 9.3.2010 at DRAT, Delhi.
Recovery proceedings are stayed subject to appellants' depositing the said amount till 18.01.2010.
In the meantime, record from the DRT concerned be requisitioned and put up before me at DRAT, Delhi.
Copy of this order be furnished to the parties as per law and another copy be also sent to the learned Recovery officer of the DRT concerned."
At this juncture present writ petition has been filed with the prayer mentioned above.
Learned counsel for the petitioners, Sri Rakesh Ranjan Agrawal, contended with vehemence that in the present case at no point of time counsel for the appellant had ever made any statement that the appellant was ready to deposit 50% of the residue amount of Rs.6,38,945/-, and further it has been contended that 25% of the amount in question was liable to be waived in the facts of the case, as such the order in question passed by Debts Recovery Appellate Tribunal is liable to quashed.
Countering the said submission, learned counsel for the bank, on the other hand, contended that such statement was made before the Debts Recovery Appellate Tribunal; and deliberate & wilful attempt is being made to wriggle out of the said statement, and further at no point of time any case had been made out for waiver of 25% of the said amount, as no such application was ever moved, giving specific ground on which the Debts Recovery Appellate Tribunal should have proceeded with the matter and accepted the plea of the petitioner, as such writ petition is liable to be dismissed.
The first argument advanced on behalf of the petitioners, that at no point of time their counsel had ever made statement to deposit 50% of the amount, cannot be accepted for the simple reason that said statement of fact has been recorded by the Debts Recovery Appellate Tribunal. In case such statement was not given by the counsel for the appellants and any incorrect fact had been incorporated in the order, then remedy of the petitioner was to move an application before the Appellate Tribunal confronting it with regard to the fact that such statement was not made and same wrongly formed part of the order, and then the Appellate Tribunal would have been in a situation to say as to whether any such statement of fact was made or not. In such circumstances, this Court cannot accept this argument advanced for the first time before this Court without moving any application at the first instance before the Appellate Tribunal. This argument is, therefore, not accepted.
Now the second argument that the Appellate Tribunal ought to have waived 25% of the amount instead of ordering to deposit 75% of the residue amount of Rs.6,38,945/- with the bank within a month, failing which court will be constrained to dismiss the appeal under Section 21 of the 1993 Act, is being adverted to.
Admitted position is that at no point of time application for waiver was ever moved by the petitioner and no specific ground had been set forth as to under what circumstances 25% of the amount was liable to be waived inasmuch as deposit of 75% was statutory requirement, and once deviation from the said statutory requirement was to be made, then specific ground had to be there put forth by the petitioner, which was to be considered by the Appellate Tribunal. As to whether in the facts of the case, said requirement could be waived or not, the Appellate Tribunal has clearly mentioned that the petitioner had not made any ground for waiver of 25% of the said amount. In such circumstances, no interference is being made with the impugned order.
At last, Sri Rakesh Ranjan Agrawal, contended that under the impugned order, the petitioners are required to pay the amount before the Recovery Officer by 18.01.2010. His request is that the said period be extended. The request made is accepted. The parties are directed to see that balance of the amount is paid before the Recovery Officer within three weeks from today, failing which the court will be free to dismiss the appeal under Section 21 of the RDDB & FI Act, 1993.
Subject to above observation, present writ petition is dismissed. 13.01.2010.
SRY