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Judgment
The appellant is one of the defendants in the Original Application(O.A.) filed before the Tribunal below(DRT) under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993(RDDBFI Act) by the respondent no.1Financial Institution against it as the principal borrower for the recovery of Rs.1,67,70,18,280/- and pendentelite and future interest thereon as per the terms of loan facilities granted to it by ICICI Bank. Term Loan Facility of Rs.1,25,00,00,000/-(one hundred twentyfive cores) was initially granted by ICICI Bank to the appellant-defendant in the year 2013 which was re- payable within 84 months uptil 2024-25. The debt alongwith all underlying securities was subsequently was assigned by ICICI Bank in favour of respondent no.1 in the year 2016. Since the appellant- borrower had defaulted in repayment of the loan the respondent no.1 as an assignee of ICICI Bank had to file recovery case(O.A.) before the Debt Recovery Tribunal.
Though the appellant-defendant was served with the summons of the O.A.in June, 2018 and it had entered appearance also before the DRT in July, 2018 but written statement was not filed within the statutory period of thirty days from the date of receipt of summons. The DRT had granted extension of time also to the appellant by a couple of months for filing of the written statement but that opportunity was also not availed of by the appellant and finally the DRT struck off the defence of the appellant-defendant on 25.09.2018. The respondent no.1 then filed filed its evidence by way of affidavit and when the O.A. was ripe for final arguments the appellant-defendant came with an application seeking condonation of delay of 71 days in the filing of written statement. The DRT rejected that application vide impugned order dated 30.04.2019. Feeling aggrieved, the appellant- defendant has come up in appeal.
The impugned order of the learned DRT reads under:-
"I.A No. 1934/2018
Today the matter is listed for orders on this I.A
By way of the present I.A, the defendant No. 1 prayed to condone the delay of 71 days in filing of the written statement and take on record the written statement filed by the defendant no. 1
Ld. Senior Counsel for the defendant no.1 submitted that certain documents and information regarding the matter especially relating to the Project and Contract with NHAI were required for drafting the WS but due to change in management and accounting & finance staff of the defendant, the defendant No.1 took substantial time to locate said old records and subsequently, after searching the documents, the defendant No.1's discussed the matter with lawyers in detail and defendant No.1 gave instructions and factual inputs to the lawyers for preparing the written statement. He also submitted that the written statement was drafted by the end of October, 2018 and comments upon the written statement were finalized by the defendant No.1. He also contended that thereafter, the authorized representative of the defendant No.1 during the third week of December, 2018 signed the written statement and same was filed on 20.12.2018 thus, he submitted that there is a delay of 71 days in filing the written statement and the said delay is neither intentional nor deliberate, but has been occasioned on account of aforesaid genuine reasons. He also submitted that the defendant No.1 has raised material and substantial defence in the written statement, which strike at the very root of the claims put forth by the applicant in the OA. Therefore, he prayed that the delay may be condoned and WS filed by the defendant No.1 may be taken on record. He also relied upon the judgment of Hon'ble Supreme Court in the matter of M/s BhasinInfotech and Infrastructure Pvt. Ltd. Vs. M/s Grand Venezia Buyers Association (Reg.)- Civil Appeal Nos.1083-1084/2016; Zolba Vs. Keshao and Ors., Civil Appeal No.2360/2008 and Reliance General Insurance Co.Ltd. and Ors. Vs. Mampee Timbers and Hardwares Pvt. Ltd. and Ors.Civil Appeal No.2990/2017.
Per contra, Ld. Counsel for the applicant FI objected on the present application and submitted that the present IA has been filed on frivolous ground just to delay the recovery proceeding initiated by the applicant FI. He submitted that the applicant has already filed its evidence by way of affidavit on 25.05.2018 and has already exhibited its documents and also filed the written submission/synopsis on 20.12.2018. He also submitted that the summons were issued on 11.06.2019 against the defendants and complete paper book was supplied to the defendant No.1 on 31.07.2018 however, despite the service of notice, the defendant No.1 failed to file the written statement therefore, the present IA is liable to be dismissed.
Considered the submissions of both sides and perused the record.
Record reveals that notices were issued to the defendants on 11.06.2018 and same were served upon the defendants including defendant No.1. Ld. Counsel for the defendant No.1 appeared on 31.07.2018 and this Tribunal vide order dated 10.08.2018 directed the defendant No.1 to file the WS before Ld. Registrar on 10.09.2018 but the defendant No.1 failed to file the WS thus, matter was posted before this Tribunal on 25.09.2018. Again this Tribunal allowed last opportunity to the defendant No.1 to file the WS within two weeks and matter was posted before Ld. Registrar on 16.10.2018 but the defendant No.1 again failed to file the WS. Thus, right to file the WS of the defendant No.1 was closed as per order dated 25.09.2018 of this Tribunal. On the other hand, the applicant bank has already filed its evidence on 25.05.2018 and exhibited the documents on 15.11.2018. The present IA has been filed by the defendant No.1 on 20.12.2018 when the matter was ripe up for final arguments. Even otherwise, no cogent reason has been mentioned in the present IA. Therefore, as rightly stated by Ld. Counsel for the applicant bank that the present IA is a delaying tactics by the defendant No.1 to delay recovery proceedings thus, in the light of judgment of Hon'ble Supreme Court in the matter of Standard Chartered Bank Vs. DharmindraBohi and Ors., (2013) 15 SCC 34, the present application is liable to be dismissed.
So far as judgment relied upon by the applicant of IA/defendant No.1 is concerned. It is important to note that in all the judgments, the courts/forums have been given liberty to exercise its discretion in a given case to allow further time for filing written statement or not.
In Reliance General Insurance Company (supra), Hon'ble Supreme Court after recording the judgment of M/s BhasinInfotech and Infrastructure Pvt. Ltd. Vs. M/s Venezia Buyers Association (Regd.) in C.A. Nos.1083-1084/2016 has directed that:
"8. We consider it appropriate to direct the pending decision of the larger bench, it will be open to the concerned Fora to accept the Written Statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter."
Thus, it is clear that courts/forums have been given discretion to allow the time beyond the statutory period for filing written statement after looking the facts of the case in hand. In the present matter, the applicant bank has already filed its evidence and exhibited the documents also and now is case is for the final hearing, at this stage WS has been filed by the defendant No.1, therefore, looking to the facts of this case, the prayer of defendant No.1 is not tenable.
The same has been held in the matter of Zolba (supra) and Hon'ble Supreme Court has observed that "it would to be open to court to permit the appellant to file his written statement if exceptional circumstances have been made out", however, in the present matter there is no exceptional circumstances has been brought to knowledge of this Tribunal by the defendant No.1 therefore, the said judgment also do not support to the argument of defendant No.1.
In the light of above discussions, the present IA is hereby rejected.
OA
List this case on 13.05.2019 for final arguments."
Arguing on behalf of the appellant Mr.Sudhir Makkar, learned senior counsel, did not dispute the fact that a full bench of the Hon'ble Madhya Pradesh High Court has rendered a judgement on 10.05.2018 in a case arising out of RDDBFI Act, 1993 and in which judgement it has been held that DRTs don't have any power to extend the period of filing of written statement beyond 45 days from the date of receipt of summons in applications filed by the banks/FIs for recovery of their dues from their borrowers under Section 19 of the RDDBFI Act, 1993. Mr.Sudhir Makkar, learned senior counsel, also did not dispute that against the said full bench decision of the Hon'ble Madhya Pradesh High Court SLP was filed before the Hon'ble Supreme Court and that SLP (being SLP No. 15398/2018) was dismissed by the Hon'ble Supreme Court on 20.07.2018.
Thus, in the present case there remained no scope for the DRT to have accepted the prayer of the appellant/defendant herein for accepting its written statement after the expiry of 45 days period from the date of service of summons. However, the submissions of Mr. Sudhir Makkar, was that a similar provision under the Consumer Protection Act is pending consideration before the Hon'ble Supreme Court on a reference made by a division bench to a larger bench which is going to consider whether the provision under the Consumer Protection Act which is similar to Section 19(5)(i) of the RDDBFI Act which provides that written statement has to be filed within 30 days from the date of service of summons but DRT has the discretion to grant further time of 15 days and no further can be granted. The pendency of that reference before the larger bench of the Hon'ble Supreme Court has not been considered by the Hon'ble Madhya Pradesh High Court in its full bench judgment and therefore that judgment is per-incuriam. It was also submitted that after making a reference to the larger bench, the Hon'ble Supreme Court in one of its orders passed in Civil Appeal No. 1083-1084/2016, "M/s Bhasin Infotech and Infrastructure Pvt. Ltd. Vs M/s Grand Veniezia Buyers Association" has permitted filing of written statement before the Consumer Fora after the expiry of 45 days period subject to the discretion of the Consumer Fora and subject to such terms as the Consumer fora may decide and which order has been noticed even by the learned DRT in the present case in the impugned order. Mr. Makkar also citied one order of the Hon'ble Delhi High Court dated 27.03.2019 in W.P.C No. 3044/2019 whereby the belatedly filed written statement was permitted to be taken on record by the DRT subject to payment of cost of Rs. 5 lacs by the writ petitioner/defendant of that case.
However, in the opinion of this Tribunal, since in the judgment of the full bench of the Hon'ble Madhya Pradesh High Court, which arose out of the RDDBFI Act, 1993 and which judgment is binding on this Tribunal in the absence of any contrary judgment on this point by any of this Tribunal's jurisdictional High Courts, it has been categorically held that DRTs don't have any powers to extend the period of filing of written statement beyond 45 days and which judgment, as noticed above, has been approved by the Hon'ble Supreme Court when the same was challenged before it on behalf of the aggrieved defendant of that case the written statement of the appellant cannot be permitted to file written statement belatedly. The judgment of the full bench of the Hon'ble Madhya Pradesh High Court cannot be said to be per- incuriam because of the pendency of the reference before larger bench of Hon'ble Supreme Court because the full bench is yet to render its judgment and till that time the decision of the full bench of the Hon'ble Madhya Pradesh High Court will have to be followed by this Tribunal. When the SLP against the judgment of the Madhya Pradesh High Court was dismissed the Hon'ble Supreme Court had already referred to matter regarding power of Consumer fora to accept replies beyond the prescribed period which shows that Hon'ble Supreme Court itself had not considered it necessary to await the verdict of the larger Bench when the SLP against the Full Bench judgment of Madhya Pradesh High Court had come up before it. So, the submission made on behalf of the appellant in the present case that till the larger Bench of the Apex Court gives its decision DRTs should ignore the Full Bench judgment Madhya Pradesh High Court even if SLP against that judgment stands dismissed cannot be accepted. Accepting this submission will be not in public interest since huge amount of public money is to be recovered and process for the recovery that amount cannot be stalled by DRTs which have been established to effect expeditious recoveries of public monies from defaulting borrowers.
For the aforesaid reasons, I do not find any merit in this appeal and same is, therefore, dismissed.