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Judgment
Anil Kumar Srivastava, Chairperson
THE APPELLATE TRIBUNAL :
Instant appeal has arisen against the impugned order dated 16.12.2019 passed by learned DRT-I Kolkata in T.A. No. 388 of 2015 [Old O.A. No. 523 of 2009 - Syndicate Bank Vs. Debashis Sha] wherein learned DRT has disposed of the T.A. with the observation that appellant bank can approach the appropriate forum u/s 138 of the Negotiable Instrument Act as the cheque drawn on Bank of America has dishonoured and bounced.
Heard learned counsel for the appellant and perused the records. Respondent was served, but not entered appearance.
Learned counsel for the appellant submits that respondent has tendered a cheque drawn on Bank of America to the appellant bank for collection of the proceeds against consignment export. During pendency of clearing of the cheque, respondent requested the bank to convert the cheque at cheque purchase rate. Request was conceded to, but later the cheque was dishonoured for certain reasons. Learned counsel placed reliance upon the Definition clause 2(g) of the Recovery of Debts and Bankruptcy Act, 1993 wherein Debt is defined which is as under:
2(g) - Debt means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application and includes any liability towards debt securities which remains unpaid in full or part after notice of ninety days served upon the borrower by the debenture trustee or any other authority in whose favour security interest is created for the benefit of holders of debt securities.
I find it is an unsecured debt wherein jurisdiction to entertain application u/s 19 of the Act lies upon the DRT. Learned DRT has committed illegality by observing that appellant bank should approach appropriate forum u/s 138 of the N.I. Act. Accordingly, observation made by learned DRT-I Kolkata is liable to be set aside and instant appeal is liable to be allowed.
ORDER
Appeal is allowed. Impugned order dated 16.12.2019 is set aside. Learned DRT is directed to decide the T.A. No. 388 of 2015 in accordance with law. No costs.
File be consigned to record room.
Copy of the order be supplied to the appellant and the respondents and a copy be also forwarded to the concerned DRT.
Copy of the judgement/Final Order be uploaded in the Tribunals website.
Order dictated, signed and pronounced by me in the open Court on this the 11th day of March, 2024.