Keshav Das Agrawal and Others vs General Manager, UCO Bank and Others

Rajendra Menon, J.—Being aggrieved by the order dated 27.2.2006 passed by the Debts Recovery Appellate Tribunal, Allahabad, dismissing an application for review filed by the petitioner and thereafter rejecting the appeal itself filed by the petitioner before the Tribunal u/s 21 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993, petitioner has filed this petition.

Facts that have come on record indicate that being aggrieved by the judgment rendered by the Debts Recovery Appellate Tribunal in T.A. No. 875/94 and challenging the final judgment directing recovery of Rs. 54,88,852/- appeal u/s 21 of the Act was filed along with a application u/s 5 of the Limitation Act and so also a application for waiver of pre-deposit amount. On 13.12.2005 vide order Annexure P/4 prayer for waiver of pre-deposit was considered and waiver to the extent of deposit 70% was allowed. Petitioner was directed to deposit 30% of the debt determined by the Tribunal within two months, case was thereafter, adjourned and fixed for 27.2.2006. In the meanwhile petitioner filed a application u/s 22 of the Act seeking review of the order dated 13.12.2005 and wanted waiver of the entire amount and prayed for reconsideration of the order, passed on 13.12.2005, by the impugned order Annexure P/1 dated 27.2.2006. Learned Tribunal found that the application for review is not properly signed and requisite fee as per rule is also not paid and accordingly finding that application for review cannot be entertained and also finding that the order dated 13.12.2005 has not been complied with. Appeal itself filed by the petitioner has been dismissed as not maintainable.

Mr. R.D. Jain, learned Senior Counsel has filed certified copy of the application for review filed u/s 22 of the Act as contained in Annexure P/2 and points out that application is dated 9.2.2006 and signed by Advocate representing the petitioner. It is also pointed out by Mr. R.D. Jain that the review application was supported by affidavit of the appellant Keshav Das Agrawal and date is mentioned as 10.2.2006 which is filed at page Nos. 21 to 23 of the paper book. According to Mr. R.D. Jain, Sr. Counsel all these documents i.e. Review Application and the Affidavit filed as Annexure P/2 are the certified copies received from the Office of the Debts Recovery Appellate Tribunal and these certified copies indicate that the review application was filed after due signature of the Advocate and was supported by the affidavit of the appellant, that being so Mr. Jain submits that review application and consequentially appeal itself has been dismissed without considering these facts and the valuable right of appeal of the petitioner has been taken away in the matter as indicated hereinabove and as the right of the petitioner to have a decision on merit in the appeal is taken away petitioner seeks interference, contending that grave injustice and prejudice would be caused to the petitioner in case order impugned is permitted to remain.

Even though Mr. K.M. Mishra, learned Counsel for respondents refuted the aforesaid contentions and argued that a reasonable order passed by the Appellate Tribunal in the matter does not warrant any interference in these proceedings under Article 227 of the Constitution but a perusal of the certified copies of the memorandum of application for review filed u/s 22 and affidavit as contained in Annexure P/1 indicates that application was duly signed and affidavit was also filed. Even if it is assumed that the application is not properly signed and was not supported by affidavit, appellate Tribunal should have given an opportunity to rectify the default it was not proper to reject the application without granting time to make good the default if any. That apart, rejection of the appeal does cause serious prejudice to the petitioner and prima facie the records indicate that memorandum of review application was properly filed along with affidavit, it is seen from Annexure P/2 that the application is duly signed and is supported by affidavit signed by appellant Keshav Das Agrawal, that being so I am of the considered view that learned Tribunal has committed manifest error in proceeding in the matter the same causes great prejudice and injustice to the petitioner. Apart from the aforesaid, rejection of the appeal itself without giving an opportunity to comply with the direction given in the order dated 13.12.2005 with regard to pre-deposit was not proper. When the petitioner had sought review of this order and when the prayer for review was rejected, interest of justice required that same should have been granted to the petitioner to deposit the amount of 30% due before dismissing the appeal itself.

Accordingly this petition is allowed, the impugned order Annexure P/1 dated 27.2.2006 is quashed, the appeal in question is pending before DRT is restored to its file, learned Tribunal is directed to consider the review application afresh and proceed to decide the appeal in accordance with law. Interim order passed by this Court on 31.3.2006 shall remain in operation till the decision of appeal pending before Appellate Tribunal.

Accordingly, this petition is allowed and disposed of with the aforesaid.