A. Raja Mohammed vs Tamilnadu Mercantile Bank Ltd., A.Kaja Mohideen, The Presiding Officer Debts Recovery Tribunal-III and The Chairperson Debts Recovery Appellate Tribunal

R. Sudhakar, J.—W.P. No. 28745 of 2013 filed for the issuance of certiorarified mandamus calling for the records in respect of the order dated 23.5.2013 made in M.A. No. 40 of 2010 passed by the 4th respondent and to quash the same and, consequently, direct the 3rd respondent Recovery Officer not to proceed further in the matter with the E-Auction Sale Notice dated 13.9.2013 in DRC No. 31 of 2009. W.P. No. 28746 of 2013 filed for the issuance of certiorarified mandamus calling for the records in respect of impugned E-Auction Sale Notice dated 13.9.2013 in DRC No. 31 of 2009 on the file of the 3rd respondent, fixing the date of sale on 28.10.2013 and quash the same and, consequently direct the 3rd respondent not to proceed further in pursuance of the impugned order in conducting E-Auction either on 28.10.2013 or any other subsequent dates.

The common facts in both the above petitions are as follows:--

The 2nd respondent is the principal borrower of certain amounts from the 1st respondent Bank in the year 1997 and the petitioner stood guarantor for the said loan availed by the 2nd respondent. Due to non-payment of the loan, the 2nd respondent suffered a decree before the civil court. The 1st respondent moved the Debts Recovery Tribunal for issuance of a Debt Recovery Certificate in O.A. No. 113/07 and Debt Recovery Certificate No. 31/09 was issued on 31.12.08. This debt recovery certificate was issued ex-parte and to set aside the said ex-parte order, the petitioner filed application, M.A. No. 14/2009 on 6.4.2009 and the said application was dismissed on 8.7.09. Against the dismissal of the said M.A. No. 14/2009, the petitioner herein moved M.A. No. 40/10 before the Debts Recovery Appellate Tribunal (for short ''Appellate Tribunal''). The Appellate Tribunal, on consideration of the matter, passed a conditional order, which is reproduced hereunder:--

Record of proceedings on 18.4.2013 in M.A. 40/2010. Orders passed vide in separate order. In the result the appellant is directed to deposit a sum of Rs. 11,81,631/- into this Tribunal on or before 21.5.2013. In the event the said deposit has not made into this Tribunal on or before 21.5.2013, this MA shall stand automatically dismissed.

MA 441/2012 (Stay) orders have been passed in M.A. Await the outcome of the order.

The above order came to be passed by the Appellate Tribunal in exercise of powers conferred u/s 21 of the Recovery of Debts due to Banks & Financial Institutions Act. The said conditional order passed by the Appellate Tribunal was not complied with. However, the petitioner filed an application for extension of time n 20.5.2013 and a memo was filed by the petitioner on 21.5.2013. Since the conditional order has not been complied with, the Appellate Tribunal, on 23.5.2013, passed the impugned order, which reads as hereunder:--

Heard the ld. Counsel for the petitioner. The petitioner relied upon the dictum laid down by the Hon''ble High Court of Madras in the case of Pakkiammal Vs. Anaiappan, .

It is seen that this tribunal had passed the following order under Sec. 21 of the RDDBFI Act in M.A. No. 40/2010.

The appellant is directed to deposit a sum of Rs. 11,81,631/- into this Tribunal on or before 21.5.2013. In the event the said deposit is not made into this Tribunal on or before 21.5.2013, this MA shall stand automatically dismissed. In view of the fact that the order already passed in MA No. 40/2010 that the MA shall stand automatically dismissed in the event the deposit is not made on or before 21.5.2013 and in view of the fact that this tribunal has become functus officio, this tribunal is driven to hold that no orders can be passed by this tribunal and that this tribunal has to only lodge this Dy. No. 475/2013. Accordingly, Dy. No. 475/2013 is hereby lodged.

The Appellate Tribunal came to hold that it has no jurisdiction to entertain the further memo seeking extension of time as the conditional order passed earlier has not been complied with. The present writ petition, W.P. No. 28745/2013 has been filed stating that there is a power vested with the Appellate Tribunal to grant extension of time for compliance of the conditional order.

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent-Bank.

Section 21 of the Recovery of Debts due to Banks & Financial Institutions Act and the proviso to Section 21 reads as follows:--

Deposit of amount of debt due, on filing appeal. Where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal seventy-five per cent of the amount of debt so due from him as determined by the Tribunal u/s 19:

Provided that the Appellate Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section.

This Court, on going through the provisions of Section 21 of the Recovery of Debts due to Banks & Financial Institutions Act, finds no ground to accept the plea as made by the petitioner that power is available to the Appellate Tribunal to grant extension of time. All that proviso to Section 21 provides is for passing an order either for waiver or reduction of the amount to be made as pre-deposit for entertaining an appeal. The proviso to Section 21 does not speak of extension of time or such other relief. The statute has to be interpreted in its plain and simple form. When the conditional order has not been complied with, the appeal came to be dismissed. Therefore, this Court finds no ground to interfere with the said order. There is no basis to challenge the proceedings alleging that it is not in accordance with the provision to Section 21 as pleaded by the learned counsel for the petitioner. No other point was canvassed.

Accordingly, W.P. No. 28745 of 2013 is dismissed. Consequent to the dismissal of W.P. No. 28745/2013, the writ petition, W.P. No. 28746/2013 filed challenging the sale notice also has to fail and accordingly, W.P. No. 28746/2013 is also dismissed. In the result, both the writ petitions fail and they are dismissed. Consequently, connected miscellaneous petitions are also dismissed. However, there shall be no order as to costs.