Indian Bank vs Gunveen Singh And Ors.

S.N.H. Zaidi, J

Heard parties' counsel on application (M.C. No. 423/2012) seeking review of the order dated 6.7.2012 of this Tribunal. Mr. Relan points out that the appeal was filed by the bank against an order made in the concerned S.A., but while making submissions on its admission on 6.7.2012, the counsel for the appellant did not press upon the appeal and prayed for transfer of the S.A. from DRT-I to DRT-II, Delhi. He further points out that as respondents 2 to 4 were also present on that date and did not object to the transfer of the S.A., this Tribunal transferred the S.A. accordingly for disposal. Mr. Relan also points out that no prayer qua the transfer of the S.A. was made in the appeal. He submits that though section 17A(2) of the RDDBFI Act empowers the Chairperson of this Tribunal to transfer any case from one Tribunal to another but also restricts the exercise of power with the condition that the order shall be made either on the application of any of the parties or on its own motion but only after notice to the parties and hearing them, but, in the instant case, the review applicant, who is the applicant of the S.A., was neither heard on the point of transfer nor any notice was issued to him.

Mr. Relan has argued at length on the legal position with regard to the place where the S.A. can be filed and relying upon the judgement rendered on 9.8.2010 by the Delhi High Court in W.P.(C) No. 8221/2009 - Smt. Indira Devi & Anr. v. Debt Recovery Appellate Tribunal & Others, has submitted that the S.A. can be filed not only before a DRT within whose territorial jurisdiction the defendant resides or carries on business or the cause of action in full or part arises or the loan is disbursed, but also within whose jurisdiction the mortgaged property is situated. According to him, the S.A. was filed before DRT-I, Delhi within whose jurisdiction three out of four defendants reside as well as the mortgaged property is situated.

He further points out that an O.A. was earlier filed before DRT-II, Delhi by the bank for the recovery of its outstanding amount against the principal borrower, which was disposed of by it and presently recovery proceedings are pending before the R.O. of the said DRT.

He also points out that though the counsel for the appellant bank at several places in the appeal had denied/disputed the observation made by the Tribunal below in the order impugned about the request of transfer of S.A. to DRT-II made by the bank's counsel but she made the same request before this Tribunal whereupon the case was transferred.

Though he admits that the DRT-II, Delhi is also having jurisdiction in the matter, yet, according to him, since the applicant had opted to file the S.A. before DRT-I, which has the jurisdiction, the S.A. should not have been transferred to DRT-II without hearing the review applicant.

Ms. Seema Gupta opposing the application disputes the observation made by the Tribunal below that she had made any request for the transfer of the S.A. although her contention is being disputed by respondent No. 3 Mr. Shandilya who submits that the counsel for the bank as well as the other respondents of the S.A. had asked for the transfer of the S.A. to DRT-II, as the said DRT had disposed of the O.A. and all the relevant record was available in that DRT. Ms. Gupta says that she has no objection in disposal of the matter by any of the DRTs.

Mr. Shandilya appearing in person also vehemently opposes the application and submits that the order under review was made on 6.7.2012 whereas the application for review and affidavit filed along with it was signed/executed on the very next date, i.e., on 7.7.2012, which shows that the review applicant was fully aware of the order dated 6.7.2012 and he was present in the Court when the order was made, otherwise, he could not get the knowledge of the order and if that be so.: he should have appeared before this Tribunal and participated in the hearing as respondent Nos. 2 to 4 had done. Mr. Shandilya also submits that though this Appellate Tribunal is empowered to transfer the case from one DRT to another in exercise of its jurisdiction under section 17A(2) of the RDDBFI Act, yet section 24 of the Act provides that the High Court or the District Court may, even without issuing any notice, transfer any matter and under rule 22 of the DRAT (Procedure) Rules, this Tribunal can make any order to secure the ends of justice. Mr. Shandilya also submits that the counsel for the review applicant could not point out any error apparent on the face of the order under review.

Mr. Aggarwal, in rebuttal, explains that the copy of the order dated 6.7.2012 was applied for and received by the applicant on the same day and that is how the review applicant came to know about the said order.

A perusal of the order dated 6.7.2012 shows that the order for transfer of the concerned S.A. was made by this Tribunal while hearing on admission of the appeal and as the appeal was not pressed by the appellant's counsel, who had made a request for transfer of the S.A. and considering the circumstance that the Tribunal below had also directed the appellant to approach this Tribunal for the transfer of the S.A. to DRT-II, Delhi in the order impugned, transfer order was made. It, however, appears that without filing an appropriate application for transfer of the case under section 17A of the RDDBFI Act, the appeal was filed wherein the request of the appellant's counsel for transfer the S.A. was acceded to by this Tribunal and without issuing any notice qua that request to any of the respondents, including respondent No. 1 (the applicant of S.A.) the transfer order was made and the appeal was disposed of as it was not pressed by the appellant. The other respondents were, however, present and had raised no objection to the transfer of the case.

Section 17A(2) of the RDDBFI Act mandates for issuance of notice and hearing on the motion of transfer, but since neither the notice was issued to the review applicant (respondent No. 1) nor he was heard before the order of transfer was made, it is evident that an error was committed by this Tribunal while making the order of transfer under review. The error is apparent on the face of order. The ground for review is, thus sufficient. The application is allowed and the order dated 6.7.2012 qua the transfer of the concerned S.A. from DRT-I, Delhi to DRT-II, Delhi is recalled and set aside.

The question of transfer of the concerned S.A. may, however, be considered if any appropriate application is moved by any party. Unless any such order is made, the DRT-I, Delhi shall exercise its jurisdiction and dispose of the matter. Ms. Gupta, however, stresses that some time-limit be fixed for deciding the issue of interim relief. It is expected that the issue of interim relief will be decided expeditiously, if possible, in a month. Mr. Aggarwal points out that since the review application has been allowed, the I.A. 422/2012 for interim stay has become infructuous and the same may be dismissed as such. The application is dismissed accordingly.