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Judgment
Tourism Finance Corporation of India Ltd.(TFCI) had extended loan facilities of five crores of rupees to respondent no.1 herein(referred to as 'the borrower Company' hereinafter) way back in the nineties. Re-payment of the loan money was secured by way of equitable mortgage of immovable properties of the respondents herein besides other securities in the form of pledge of shares etc. Upon default having been committed by the borrower Company and the guarantors in repayment of the loans as per the loan agreements executed from time to time by the respondents TFCI had to approach the Debt Recovery Tribunal(DRT) with a recovery application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993('RDDBFI Act' in short). That application was registered as Original Application (O.A.) No.280 of 1999 in DRT-I, Delhi.
In the O.A. proceedings evidence was adduced from the side of the O.A. applicant TFCI as well as the defendants in the O.A. who are respondents now in this appeal. Both sides had filed written arguments also as directed by the DRT. Oral arguments were also advanced by the counsel for the O.A. applicant However, before the counsel for the respondents-defendants could advance his oral submissions for which purpose the O.A. was fixed on 27.02.2015 it so happened that there was no appearance from the side of the O.A. applicant (TFCI) and the DRT dismissed the O.A. in default.
TFCI did not thereafter approach DRT, for reasons best known to its officers only prosecuting the case, for restoration of its O.A. which had been filed for recovery of over seven crores of public money and it remained a mystery for over two years as to why TFCI did not take any steps to get its O.A. in which it was seeking a recovery certificate for Rs. 7.96 crores, restored.
However, in June, 2017 the appellant, an Asset Reconstruction Company, approached the DRT with three applications in the dismissed O.A. of TFCI and sought restoration of the TFCI'S O.A. after condoning the delay in filing of restoration application and also its own impleadment claiming itself to be the assignee of TFCI in respect of the debt which it had to recover from the borrower Company and its guarantor, respondent no.2 herein Paresh Shantilal Shah by virtue of assignment deed dated 27.09.2013 in which deed the borrower Company was also a confirming party.
The learned Presiding Officer of DRT dismissed all the applications moved by the appellant vide impugned order passed on 25.04.2019 accepting the contentions raised before her by the defendants in the O.A., respondents herein, inter alia, that the applicant ARC as an assignee of TFCI had no locus standi to seek restoration of the O.A. of TFCI since the assignee had not got itself impleaded in the O.A. as the assignee of the O.A. applicant TFCI as only TFCI could seek restoration of its O.A. The learned Presiding Officer while rejecting the delay condonation application also held that in any case there was no good reason shown by the applicant, appellant herein, for the abnormal delay of over two years in moving the restoration application despite the fact that there was a reference to the pending O.A. in the assignment deed in its favour by TFCI. The learned Presiding Officer rejected the explanation offered by the applicant(appellant herein) that restoration application was not filed since the borrower had in the meanwhile approached it for some settlement since the assignee ARC was in fact proceeding ahead to recover the outstanding dues from the borrowers by resorting to the provisions of SARFAESI Act and accepted the contention in this raised by the defendants in the O.A. that this explanation for the delay in filing restoration tendered was on the face of it false for which falsehood the officers of the assignee ARC were liable to be prosecuted.
Feeling aggrieved by the impugned order of the DRT the appellant ARC has approached this appellate Tribunal with this appeal under Section 20 of RDDBFI Act.
For deciding this appeal records of the Tribunal below were summoned and perused also during the course of hearing of arguments from both sides which were advanced by Mr. Rajiv Bansal, Sr. advocate assisted by Mr. R.P. Aggarwal, advocate for the appellant- ARC and Mr. Ashish Sharma, advocate for the respondents.
The main submission of Mr. Rajiv Bansal, learned senior counsel for the appellant was that the decision of the learned Presiding Officer of DRT at first instance to dismiss the O.A. on 27.02.2015 due to non- appearance of anyone on behalf of the O.A. applicant(TFCI) was a perverse decision since by that date after completion of pleadings from both sides even evidence had already been adduced and not only that arguments from the side of TFCI had also been advanced and on the direction of the DRT written arguments had also been filed. Thus, there was no occasion for the learned Presiding Officer to dismiss the O.A. in default and she could have gone ahead to hear the arguments of the counsel for the respondents-defendants who was present on that date. Mr. Bansal further submitted that, in fact, if the learned Presiding Officer had taken the trouble of going through the earlier order sheets on 27.02.2015 she would have come to know that not only arguments had been advanced from the side of the O.A. applicant but from the side of the respondents a categorical statement was made through its counsel, who is representing them even before this Tribunal, that the defendants were not contesting their liability as far as principal amount was concerned and they were wanting some relief on rate of interest. The learned Presiding Officer, therefore, submitted Mr. Bansal, ought to have issued a recovery certificate for the admitted amount and could have thereafter considered the prayer of the defendants regarding some relief in the rate of interest rather than dismissing the entire O.A. Learned senior counsel also contended that the perverse decision of the Presiding Officer which initially when she dismissed the O.A. due to non-appearance on behalf of TFCI on 27.02.2015 and the decision not to restore the O.A. despite the fact that the appellant had pointed out to the Presiding Officer that the defendants in the O.A. had categorically admitted on earlier dates of hearing that they were admitting the claim of TFCI except that of interest, has resulted into a loss of crores of rupees to the public exchequer and unmerited 'financial bonanza' to the defaulters of 'public money' which fact should shock the judicial conscience of this Tribunal.
Learned senior counsel also contended that though the respondents have been urging that nothing can now be done at the instance of the assignee-appellant this Tribunal can do everything in exercise of supervisory powers conferred by Section 17A of RDDBFI Act, 1993 to undo the grave and palpable perversity committed by the Presiding Officer of the Tribunal below since at the instance of the appellant this Tribunal had summoned the records of DRT and if this Tribunal agrees with his submission about perversity of the orders passed by DRT otherwise this Tribunal will be putting its seal of approval to the grave illegalities committed by the Presiding Officer of the DRT and the beneficiaries will be the defaulter borrowers to the tune of over hundred crores which have been due from them by now. The victim will be 'public interest' which Tribunal should avoid at any cost and, therefore, the appellant was urging this Tribunal to press into service in public interest the supervisory jurisdiction and power of superintendence to undo the monumental illegality committed by the Presiding Officer. Mr. Bansal submitted that there will not be a better case than the present one for this Tribunal to invoke rarely invoked Section 17A of RDDBFI Act instead of going into the technicalities pressed into service by the beneficiaries of the illegalities committed by the Presiding Officer.
On the other hand, Mr. Ashish Kumar Sharma, learned counsel for the respondents-defendants in his lengthy submissions, oral as well as written and also in the detailed reply to the appeal reiterated the submissions which were advanced before the learned Presiding Officer and on the basis of which the learned counsel had been successful in persuading the Presiding Officer firstly to dismiss the O.A. in default because of non-appearance of the counsel for the TFC on 27.02.2015 and secondly in persuading the same Presiding Officer to reject the applications moved by the assignee-appellant for the restoration of the O.A. which were rejected vide impugned order dated 26.04.2019. Mr. Sharma submitted that the present appellant as an assignee of TFCI had no locus standi to move any application before the DRT seeking restoration of the dismissed O.A. of TFCI as also its impleadment as an assignee since there was no case pending in the DRT in which it could be impleaded. It was also submitted the learned DRT had in case rightly come to the conclusion that there was in any case no case made out by the assignee, even if had the locus standi to approach DRT, for condonation of delay of over two years in approaching the DRT for restoration of the O.A. In support of these submissions Mr. Ashish Sharma also cited many judgments of Hon'ble Supreme Court and of different High Courts.
However, when it was being put to Mr. Ashish Sharma repeatedly during the course of arguments that how could the learned Presiding Officer of DRT dismiss the O.A. in default when already arguments from the side of O.A. applicant had been advanced and even written arguments had also been filed as directed by the DRT and not only that even the liability except on account of interest had been clearly admitted by the defendants in the O.A. on different dates Mr. Sharma kept on reiterating same thing that the assignee-appellant had no locus standi to question the correctness of the decision of the DRT to dismiss the O.A. on 27.02.2015 as held even by this very DRAT in one of the orders under similar circumstances.
It was also put to Mr. Sharma that if it is held that the decision of the learned Presiding Officer of DRT to dismiss the O.A. in default despite the fact that arguments on behalf of TFCI had been advanced orally as well as by way of written submissions on the directions of the DRT was a palpably wrong decision and in fact a recovery certificate could have been issued in favour of TFCI immediately on defendants admitting their liability for the principal amount at least and further that why this Tribunal, which is not only the appellate Tribunal but it also exercises supervisory jurisdiction also over the DRTs, administrative as well judicial, should not order issuance of a recovery certificate based on admissions of liability made before DRT, Mr. Sharma even then kept on reiterating that in the present proceedings going on at the instance of the assignee of TFCI no such orders can be passed even by this Tribunal either in exercise of appellate jurisdiction or even in exercise of power of superintendence which of course this Tribunal has under Section 17A of the RDDBFI Act,1993.
After giving my thoughtful consideration to the rival submissions and perusing the records of the Tribunal below, which as noticed already, were summoned for the disposal of this matter, I am of the firm view and persuaded to accept the submission of Mr. Rajiv Bansal, learned senior advocate for the appellant that I need not go into the submissions advanced on behalf of the respondents- defendants as to whether the appellant as an assignee of TFCI by virtue of a written deed of assignment which incidentally was signed by the borrowers also as a confirming party, could seek restoration of the O.A. filed by the assignor TFCI and whether it could also seek its impleadment in in the dismissed O.A. and whether the appellant had been able to make out 'sufficient cause' for delayed filing of the restoration application. This matter can be decided by this Tribunal by invoking supervisory jurisdiction conferred by the law makers on the Chairperson of DRAT under Section 17A of RDDBFI Act and which provision the appellant is also requesting to be invoked in the facts and circumstances of the case. Mr. Bansal was right in submitting that whenever records of the lower court/tribunal come before the appellate Tribunal which also has the power of superintendence over the subordinate authority, (DRT in the present case) and which power even according to the learned counsel for the respondents the Chairperson of DRAT possesses and also that the supervisory jurisdiction is administrative as also judicial, if the supervisory authority finds any perversity in any order(s) of the Tribunal below which is so glaring that if not corrected there will be grave miscarriage of justice the perverse order must be set aside.
I have gone through the O.A. file and found that the case had crossed the stage of completion of pleadings and evidence many years before the O.A. came to be dismissed on 27.02.2015. Thereafter, the case was being taken up by the DRT for hearing arguments from both sides. Arguments were advanced also and in fact the DRT had directed filing of written arguments also and at least the O.A. applicant TFCI had filed its written submissions. Thus, for all practical purposes the trial had concluded and in normal course the DRT ought to have fixed the case for final orders but that was not done and the case was being adjourned from time to time without any justified reasons. Record of DRT also supports the submission of the learned senior counsel for the appellant that the defendants in the O.A. had categorically admitted their liability as far as the principal amount was concerned and as far as the interest part was concerned they wanted some relief on that count only which could have been decided while passing final order. But certainly the O.A. could not be dismissed in default in these circumstances. It was held by the Hon'ble Supreme Court in a judgment cited by the learned senior counsel for the appellant before me and in fact was cited even before the DRT also and there is a reference to that judgment in the impugned order dated 25.04.2019 also and which judgment is reported in 1991 Supp.(2) SCC 513, "Calcutta Port Trust vs Shalimar Tar Products Ltd.", that a case cannot be dismissed in default when the defendant accepts his liability. The relevant observations made in this judgment are re-produced below:-
"We have heard learned Counsel. There are two facets to the case. The suit of the appellant was partly contested, as is evident. To the uncontested more so of the defendant, was obliged to pass decree for arrears of rent for was no dispute. The trial Court in face of the pleadings of the parties, and part there he period in question at the conceded rate of Rs. 3423.76 paise. There was no option for the Court other than this. Order IX, Rule 8 of the CPC enjoins the Court that where the defendant appears, and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an Order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. On the uncontested part the trial Court was obliged to pass a partial decree in favour of the plaintiff even though he and his Counsel were absent on the date when action was taken under Order XI Rule 21 of the Civil Procedure Code. The Order of the trial Court in dismissing the entire plaint for non-prosecution was thus an error of jurisdiction and was correctable by the High Court, even when not appealed against, under the provisions of Section 115 of the Civil Procedure Code on its own motion. The bar of limitation set up in the Appellate Judgment of the High Court, in our view, cannot stand in the way of partial decree of the suit. The same view of the High Court is otherwise sustainable for the remaining contested part of the suit. So we split both the Orders of the trial Court as well as that of the High Court in confining these Orders to the contested part of the claim of the plaintiff and right now pass the degree on the partially admitted claim of the plaintiff-appellant "(emphasis supplied)
Despite noticing this judgment of the Apex Court in the impugned order and also the fact that there was an admission of liability by the borrowers except the interest component the learned Presiding Officer chose to ignore this judgment and passed an order which is in the teeth of this judgment of the Apex Court. It has been held by the Hon'ble Supreme Court that if a judgment rendered by it is not followed by a inferior court that amounts to 'judicial indiscipline' and 'judicial misconduct'. I have no hesitation in agreeing with the learned senior counsel for the appellant that in the present case the learned Presiding Officer who did not follow the said judgment of the highest Court of the land on the specious and untenable ground that the admission of liability by the defendants had not attained finality. What was sought to be conveyed is beyond comprehension. The dismissal of the O.A. involving huge amount of public money only because after completing its arguments TFCI remained unrepresented on 27.02.2015 being in the teeth of the legal position settled by the Apex Court of the country has certainly shocked the judicial conscience of this Tribunal. It was rightly contended by the learned senior counsel for the appellant that if the orders such like the one of dismissal of O.A. passed on 27.02.2015, which confer huge financial benefit to a litigant and corresponding loss to the public exchequer, despite the fact that the defendants- borrowers in the O.A. were admitting their liability of principal amount being claimed in the O.A. are not quashed by this Tribunal either in exercise of appellate jurisdiction or supervisory jurisdiction and which supervisory jurisdiction is "akin to appellate revisional or corrective jurisdiction", as held by the Hon'ble Supreme Court in "Surya Dev Rai vs Ram Chander Rai & Ors." (2003) 6 SCC, 675, 'public interest' will continue to be the victim which under no circumstances ought to be allowed to happen by this Tribunal. Learned senior counsel submitted that here public money of over hundred crores will go down the drain and the coffers of defaulting borrowers will get filled up with that much public money if the grave illegalities committed by the learned Presiding Officer of DRT are not corrected/rectified. I also agree that the technicalities pleas like the one being pressed into service by the respondents' counsel should not be allowed to defeat the ends of justice. Even the Hon'ble Supreme Court in its judgment reported as (2007) 7 SCC 206, "Bongaigaon Refinery & P.C.Ltd. & Ors. Girish Chandra Sarmah" had held that when the approach and decision of the authority is found to be perverse ".......the Court cannot stand to the technicalities so as to defeat the ends of justice." In that case the writ petitioner had before the Single Judge Bench abandoned the plea of 'perversity' of the approach of the enquiring committee in holding only the writ petitioner guilty of the charges out of three similarly placed charge-sheeted persons. After the dismissal of the writ petition when the matter was argued before the Division Bench again the contention of the order of the enquiry committee being perverse was urged and was accepted also by the Division Bench. It was urged before the Hon'ble Supreme Court that the abandoned plea of perversity should not have been allowed to be re-agitated before the Division Bench. The Hon'ble Supreme Court agreed that the approach of the enquiry committee was actually perverse and, therefore, while rejecting the argument that plea of perversity should not have been allowed to be raised again before the Division Bench the Hon'ble Supreme Court had made the above quoted observation. So, in the present case also the dismissal of the O.A. of TFCI having been found to be perverse by this Tribunal the technical objections raised by the respondents, who had made categorical admission of their liability of the principal amount before the DRT itself, pale into insignificance when the same are pitted against 'public interest' involved in the manner.
Thus, in the glaring facts and circumstances of the case noticed above the dismissal of the O.A. on 27.02.2015 has to be set aside and the matter needs to be remitted back to the DRT for the disposal of the O.A. in accordance with law and also in the light of the observations made hereinabove. However, with the passing of a simple order of remand complete justice will not be done since it has been observed by this tribunal itself that DRT ought to have proceeded to issue a recovery certificate for the principal amount being claimed in the O.A. and which undisputedly was being accepted before the DRT on a couple of dates of hearing by the defendants in the O.A., respondents herein and, therefore, this Tribunal will be committing the same illegality which was committed by the learned Presiding Officer of DRT by not directing issuance of a recovery certificate for the admitted amount against the respondents-defendants. The O.A. was filed for recovery of Rs.7,96,49,202/- and pendentelite and future interest at the contractual rate. In the admissions made before the DRT during the pendency of the O.A. interest liability was not accepted. So, now a joint and several recovery certificate for the admitted amount of Rs. 7,96,49,202/- is ordered to be issued against the respondents-defendants. It is needless to state here that since the assignee-appellant had not sought its substitution in the O.A. proceedings before the O.A. was dismissed the recovery certificate now to be issued shall be in favour of the O.A. applicant TFCI and it will be between the assignor and assignee to decide between themselves as how the said decretal amount will come to the assignee. The DRT shall accordingly draw a formal recovery certificate and then forward the same to the recovery officer concerned who in turn will ensure expeditious execution of the same. The DRT will now proceed to dispose of the O.A. on the remaining aspects of the matter which were being contested by the defendants in the O.A. in their written statement. Since the O.A. proceedings will now stand revived it will be open to the assignee-appellant also to seek its formal substitution in the revived O.A. to prosecute the O.A. further.
The DRT shall now take up the O.A. on its board on 29.08.2020 and then proceed with the proceedings in accordance with law and after giving opportunity to the concerned parties of addressing fresh arguments, if so desired by them. Considering the fact that this legal battle for recovery of crores of public money is going on since the year 1999 the learned DRT will do well in disposing of the O.A., as far as possible, within a period of three months from the date of communication of this order and will ensure that the proceedings are not adjourned unjustifiably as was being done before dismissal of the O.A.
Records of the DRT be returned back with a copy of this order forthwith.