Indian Bank vs M/s. Indage Wines & Ors

Ashok Menon, Chairperson

This is an appeal filed under section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (‘RDDB & FI Act’ for short) impugning the order of Debts Recovery Tribunal-II, Mumbai in Review Application No. 21/2010 in Original Application No. 59/2006, dated 25/04/2011 rejecting the application.

The above-mentioned Original Application for the realization of money from the defendants therein was allowed on 17/08/2010 but the declaration of mortgaged with respect to some properties belonging to defendants 2 to 5 was disallowed. In that judgment, it was observed that the mortgaged deed was not registered and there was no evidence regarding the creation of an equitable mortgage by deposit of title deeds as the memorandum of entry was not produced. The Appellant preferred a review application and re-agitated the issue regarding the validating of the equitable mortgage. The Learned Presiding Officer rejected the application stating that there was no ground for any review of his earlier order.

The Appellant bank is in appeal challenging the rejection of the review mentioned above. The Respondents did not appear. The learned counsel for the Appellant was heard and records were perused.

The provision for review is provided under Rule 5 A of the Debts Recovery Tribunal (Procedure) Rules, 1993 (‘DRT Rules’ for short). The power of DRT to review its own order is akin to the powers of the Civil Court under section 114 a read with Order 47 Rule 1 of the Code of Civil Procedure.

A reading of the impugned order rejecting the review would indicate that the Appellant wanted the Presiding Officer to reconsider his findings regarding the validity of the mortgage. Apparently, it is not an error on the face of the record and therefore, a review was not maintainable. The Appellant should have preferred an appeal. However, the Appellant preferred a review application which was ultimately rejected. It is true that the provisions of CPC are not strictly applicable to the proceedings before the DRT. However, despite the fact that the Tribunal shall not be bound by the procedure laid down by the CPC, it shall however be guided by the principles of natural justice and, subject to the other provisions of the RDB Act and Rules, the Tribunal shall have the power to regulate their own procedure. Section 22 (2) (e) makes it clear that the same powers as are vested in a Civil Court under the CPC while trying a suit in respect of reviewing its decisions shall apply to a Tribunal. Under the circumstances the provisions under section 114 read with Order 47 Rule 7(1) of the CPC would apply with equal force to a review under Rule 5A of the DRT Rules also. Order 47 Rule 7(1) CPC reads thus:

“7. Order of rejection not appealable. Objections to order granting application.— (1) An order of the Court rejecting the application shall not be appealable; but an order granting the application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit.”

From the above Rule, it is adequately clear that no appeal would lie from an order rejecting the application for review. I find support in the decisions of the Hon’ble Supreme Court reported in Vinod Kapoor vs. State of Goa and Ors 2012 (12) SCC 378, State of Assam vs. Ripa Sarma AIR 2013 SC 3588 and Bussa Overseas & Property (P) Ltd.& Ano vs. Union of India & Ano (2016) 4 SCC 696.

Hence, I find that the appeal is not maintainable and is to be dismissed.

Resultantly, the appeal is dismissed. No costs.