E. Murugakumar vs Union Bank Of India

S. Ravi Kumar, Chairperson

This Appeal is preferred under Section 20 of the Recovery of Debts Due to Bank and Financial Institution Act, 1993 against the order dated 24.3.2015 in OA 101/2010 on the file of DRT, Madurai.

The appellant herein is the sole defendant in the said OA.

Heard Ld. Counsels for both sides.

Advocate for appellant submitted that this appeal is preferred against OA after disposal of Writ Petition filed before Hon’ble High Court of Madras (Madurai Bench), which granted liberty to raise all issues before a Competent Authority. It is submitted that defendant remained ex parte in OA and against the recovery proceedings questioning the sale proclamation, Writ was filed but the writ petition was disposed of with a direction to approach competent authority. It is submitted that Tribunal below has not discussed the evidence of bank officer and passed the impugned order, therefore, it is not in accordance with law. It is further submitted that Tribunal below granted contractual rate of interest even pendent lite, which is also not in accordance with law. For these reasons, it is submitted that order of Tribunal below is liable to be set aside.

On the other hand, advocate for respondent bank submitted that the very appeal is barred by time as it was not filed within time prescribed from the date of the order in OA 101/2010. It is further submitted that in the Writ, sale proclamation is challenged and Hon’ble High Court while disposing of the Writ on 30.10.2015 dismissed the Writ petition by giving liberty to the petitioner to raise all issues before a competent authority and that this is not a competent authority because sale proclamation order of Recovery Officer has to be challenged before Ld. Presiding Officer, DRT under Section 30 of RDDB & FI Act. Advocate for respondent bank further submitted that appellant cannot question the merits of the order dated 24.3.2015 passed in OA 101/2010 having remained ex parte and not raised any defence in answer, further, there is no answer to the evidence produced on behalf of bank, both oral and documentary. It is submitted that appeal is devoid of merits and is liable to be dismissed.

I have perused the material papers including the impugned order dated 24.3.2015 passed in OA 101/2010.

It is not in dispute that defendant remained ex parte before Tribunal below and has not filed any written statement in objection to the OA. It is also clear from records that proof affidavit is filed on behalf of respondent bank and documents are marked as Ex.A1 to A23 and oral and documentary evidence of Bank remained unchallenged because defendant neither filed his affidavit in answer to the proof affidavit of the bank nor produced any documents. One of the contentions of the advocate for appellant is that Ld. Presiding Officer has not discussed the evidence of bank officer and the documents. But the said objection is not tenable when the defendant remained ex parte and did not challenge the proof affidavit of the bank and the documents filed on behalf of the bank, therefore, question of discussing them or recording a finding does not arise. Only if any objection is raised on behalf of the defendant in support of the defence taken through written statement, then only, the question of discussing or recording a finding would arise. Therefore, the objection of the appellant advocate is not tenable.

Next objection of the advocate for appellant is that pendent lite interest is granted at contractual rate and it is against law. But this contention is also not tenable as he only referred to Section 34 of CPC, which is not applicable to the case filed under RDDB & FI Act before Debt Recovery Tribunals. Granting pendent lite interest is purely discretionary and there is no contest from the defendant and Tribunal below is right in granting pendent lite interest at contractual rate. Therefore, the objection of appellant advocate is not tenable.

For these reasons, I am of the view that appeal is devoid of merits and liable to be dismissed.

Accordingly, appeal RA 146/2017 is  dismissed with costs.