Punjab National Bank vs M/s Modipon Ltd And Ors

The appellant Bank is seriously aggrieved by an order dated 30.08.2018 passed by the learned Presiding Officer of the DRT-II, Delhi Original Application No.15/2018 (O.A.) which stood disposed of four years back. According to the appellant Bank's case pleaded in its Memorandum of Appeal as well as put forth during the course of hearing of this appeal by its learned counsel the impugned order passed by the learned Presiding Officer in a disposed of matter, when he had become functus officioafter disposal of the Bank's O.A. had already been disposed of on the basis of a settlement between the parties, has caused loss of crores of public money to the 'public exchequer'.The impugned order as per the submissionsof the learned counsel for the appellant was passed on a miscellaneous application moved by the respondents herein which was totally misconceived and ill advised application and the learned Presiding Officer was persuaded to believe that he could pass any order even in a matter which was disposed of finally by a consent order on a joint application which had been moved by the O.A. applicant and the two defendants in the O.A. and he had become functus officio.

The appellant Bank had filed O.A. in the year 2008 for recovery a huge amount of Rs.24,33,92,023.76 against respondents herein. Five other financial institutions were also impleaded as pro-forma defendants. The O.A. had remained pending for six years and then without a full trial the appellant and two contesting defendants entered into a compromise under which the respondents-defendants were to pay Rs.19 crores. To have the O.A. disposed of as per that compromise a joint application no. 310/2014 was moved in the DRT. On 25.04.2014 the DRT disposed of the O.A. as settled. The short order passed on that date reads as under:-

"Compromise Application I.A. No. 310/2014 has been filed. The O.A. is allowed in terms of the compromise. The compromise shall form part of the recovery certificate. File be consigned to record room."

Thereafter the formal recovery certificate was drawn up on 29th April, 2014 and the same reads as under:-

"The I.A. No. 310/2014 moved by the applicant Punjab National Bank and defendants no. 1 & 2 in Original Application No. 015/2008 has come upbefore me on 25.04.2014 for issuance of Recovery Certificate in terms of the compromise. Disposing of this application, it is ordered that the compromise application shall form part of the recovery certificate. The applicant shall be entitled to recover the debt under OTS in terms of Joint Application dated 25.04.2014 and registered as IA No. 310/2014 in this Tribunal from D1 to D2 jointly & severally towards full and final settlement of the debts due to them.

In case the entire amount of OTS is not paid to the applicant by defendants within the stipulated period i.e. by 28.03.2015, the applicant shall be entitled to recover entire amount of debt as claimed in OA no. 015/2008 from defendants togetherwith pendentlite, future interest and other charges thereon till payment/and or realization in full. In the event of payment of the entire OTS amount as per compromise application, the Recovery Certificate would be deemed to be satisfied.

It is certified that the abovementioned sum of Rs 24,33,32,023/- (Rupees Twenty Four Crores Thirty Three Lacs Ninety Two Thousands Twenty Three Only) is due to the applicant bank hereinafter referred to as Certificate Holder from defendants hereinafter referred to as the:

Certified Debtor No.1

M/S Modipon Ltd.

Certified Debtor No.2

Shri M.K. Modi

The Recovery Officer shall realize the amount as per this certificate in the manner and mode prescribed under Section 25 and 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 from the above named Certificate Debtors."

The joint application moved by the parties which contained the terms of settlement reads as under:-

"1. That the applicant bank had filed the above noted Original Application for recovery of 24,33,92,023.76p (Rupees Twenty Four Crores Thirty Three Lacs Ninety Two Thousand & Twenty Three and paiseSeventy Six only) which is pending before this Hon'ble Tribunal and is fixed for 25.04.2014 for final argument.

That the defendants have approached the applicant bank for One Time Settlement (OTS). The applicant bank upon the request of the defendant has agreed for OTS subject to payment of Rs. 1900 Lacs vide its letter dated 02.04.2014 read with amendment dated 12. 04.2014 to which the defendants have agreed.

That in terms of the OTS request, the defendants have already paid upfront amount of Rs. 190 Lacs with the applicant bank.

That the defendants hereby agree and give consent that they are liable to pay the sum of Rs.24,33,92,023.76p (Rupees Twenty Four Crores Thirty Three Lacs Ninety Two Thousand & Twenty Three and Paise Seventy Six only) along with interest and cost in terms of the prayer made by the applicant bank in the O.A.

However, the consent decree shall be satisfied in case the defendants comply with the following conditions of the OTS:

(i) The Upfront amount of Rs. 190 Lacs are deposited by the defendants is appropriated by the applicant bank towards OTS.

(ii) The defendant shall pay the balance OTS amount of Rs.1710 Lacs with twelve months in four quarterly instalments from the date of conveying the OTS i.e. 02.04.2014 with interest @ 10.25% p.a (simple) on entire OTS amount on reducing balance basis from the date of conveying the approval i.e. 02.04.2014 till the date of final payment.

(iii) The Defendants shall pay the first three EMIs of Rs 440 Lacs (approximately) each on or before 28.06.2014, 28.09.2014 and 28.12.2014 respectively and the last EMI of the balance OTS amount along with balance actual accrued interest will be paid by 28.03.2015.

(iv) The consent decree in respect of the debt due would be obtained by the parties from this Hon'ble Tribunal. However, delay in obtaining the consent decree shall not be an impediment in the payment of OTS amount. On receipt of the payment in terms of the settlement, the satisfaction of the consent decree will be recorded.

(v) That there is a balance assessed tax liability of Rs 183.90 Lacs apart from interest, penalty if any, imposed by the Commercial Tax Authorities, Modi Nagar, UP on account of tax payable an auction held for old plant and machinery of the defendant no. 1 company. The defendant undertakes to reimburse the same to the applicant bank, in case the bank has to pay the same to the said authorities. Further the defendant shall continue to keep mortgage/ charge over the Administrative Block (with land) of defendant no.1, as security in favour of Applicant Bank till final disposal of the above noted matter/ tax case. The charge on this security / title deed shall only be released after final disposal of the tax case/ above noted matter. The defendant shall execute necessary security documents in this respect, if so required by the bank.

(vi) The defendants hereby agree that the action initiated by the bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, has only been kept in abeyance and shall execute a Supplementary agreement to keep that effect, if so required by the bank.

(vii) The defendants, sister/associate concern of the defendant no.1 shall withdraw all the cases filed by them against the applicant bank.

(viii) That charge of the bank on the security/title deed shall be released only after receipt of entire OTS amount along with interest, if any, subject to except the charge to be continued for the Commercial Tax case/ matter.

(ix) The applicant bank shall issue NOC to the defendant to sell/pledge/assign the property i.e. (a) Alok Park Officer's Colony Building and (b) land and building of worker's colony situated at Hapur Road, Modinagar, UP. The remaining properties will remain mortgaged with the bank as security till the final payment of the OTS amount. The amount so received by the defendants from the sale of the above properties (a) and (b) shall be deposited with the applicant bank. The charge against all the properties shall be released by bank only after remittance of entire OTS amount along with accrued interest thereupon in terms of the present settlement.

That in case the defendants comply with the conditions as stipulated IN SUB PARA (I) to (ix), the decree shall be satisfied. However, in case the defendants fail to comply with the same in full or part, the OTS shall be deemed to have failed and the defendants shall be liable to pay the entire amount as claimed in the Original Application i.e. Rs 24,33,92,023.76p (Rupees Twenty Four Crores Thirty Lacs Ninety Two Thousand & Twenty Three and paise Seventy Six only) along with interest and costs to the applicant bank.

It is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to record the above compromise and may further be pleased to pass the consent decree in terms of the above. It may further be recorded that in case the defendants fail to comply with the terms and conditions recorded herein above, the OTS shall be declared to be failed and the defendants shall be liable to pay the entire amount in terms of the prayer of the OA.

Pass such other/further order which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.

It is prayed accordingly"

It is undisputed that the respondent had not honoured the said settlement. So, recovery proceedings commenced to recover the full amount which had been claimed by the appellant Bank in its O.A.

After almost four years from the expiry of time during which the money under the settlement was payable the respondents moved one miscellaneous application(Misc. Application No.74/2018) before the DRT stating therein the circumstances due to which money as per the settlement could not paid to the Bank. The prayer made in that application was as under:-

"a) Pass appropriate order(s)/direction(s) directing Non-Applicant/Punjab National Bank to accept the residual dues of Rs.65 lacs being residual principle amount and Rs.2,59,62,100/- as overdue interest till from the Defendant No.1 Company and upon receipt of the OTS payment issue No Dues Certificate in favour of the Defendant No.1 Company, release all its charge/lien on the assets/securities of the Defendant No.1 Company and its group companies /Guarantors and assign its debt in favour of an ARC/NBFC;Further, this Tribunal be pleased to condone delay and/or extend the time period of delay of making payments of the residual OTS amounts from the dates of the said defaults till final payment and relieve the Applicants herein from the onerous default clauses sought to be enforced by the Applicant bank/PNB.

b) Till the disposal of the instant application, PNB be restrained from initiating or proceeding with any actions or coercive measures for the recovery of its alleged dues against the assets/securities of the Defendant No. 1 Company and its group companies/guarantors; and from seeking to claim recovery/enforcements of any amounts as claimed by it."

The learned DRT allowed that application of the respondents herein vide impugned order. Though the original final order in the O.A. was a one para the impugned passed by DRT condoning the delay in making payments as per the consent order runs into asmany as 18 pages as if the O.A. was being disposed of for the first time after trial.

The impugned order dated 30.07.2018 passed by the DRT is re-produced below:-

"In disposed of O.A. No.15 of 2008 titled as Punjab National Bank Vs. M/s. Modipon Limited and others, defendants no.1 & 2 have filed the present Miscellaneous Application (for short, the M.A.) with a request to pass appropriate order(s) / direction (s) to direct the non-application Punjab National Bank to accept the residual OTS dues of Rs.65 lacs being the residue principal amount and Rs.2,59,62,100/- as overdue interest from defendant no.1 Company and upon receipt of the same to issue "No Dues Certificate" in its favour, to release all its charge / lien on its assets/ securities and its group Companies / Guarantors and assign its debt in favour of an ARC / NBFC and also to condone and / or extent the time of making payments of the residual OTS accounts from the dates of the said defaults till final payment and to relieve the applicants / defendants no.1 & 2 from the onerous default clauses sought to be enforced by the non-applicant bank.

Briefly, the case of the M.A. applicants, for the purpose of filing the present MA. is as follows:

Consequent upon allowing of O.A. No.15 of 2008 filed by the Punjab National Bank, a Recovery Certificate for recovery of Rs.24,33,92,023/- alongwith future interest @ 17.75% per annum with monthly rests was issued against the defendants / applicants being the borrower and guarantor, jointly and severally. The said amount was claimed by the non-applicant bank as payable on the date of filling of the O.A. as on 30th September, 2007 and the said amount was comprised of Rs.7.84 crores relating to WCDL limit and Rs.2.26 crores relating to Cash Credit Hypothecation limit. Apart from filing the said O.A., the non-applicant bank has also initiated proceedings under the SARFAESI Act against the mortgaged / hypothecated movable and immovable assets which were challenged by the applicant / defendant no.1 company by filing S.A. No.35 of 2008, The said S,A, was disposed of as the applicant / defendant no.1 Company arrayed a third party buyer for its movable assets being plant and machinery and the non-applicant bank was able to recover more than Rs.42.50 crores from the sale of hypothecated assets out of which a sum of Rs.13,58,28,989/- was received and appropriated by the non-applicant bank after filing of the said O.A., in 2009 as is detailed in Para 8(x) of the present M.A. and also reflected in the Statement of Account and the remaining amount was distributed to the other members of the consortium banks. The non-applicant bank after having recovered a substantial amount of a sum of Rs.13,58,28,989/- and Rs.2,64,147/- on 18th March, 2013 the applicant . defendant no.1 Company through its communicated dated 27th March, 2014 approached the non-applicant bank offering to settle its claim by way of One Time Settlement (for short, the OTS) for a total sum of Rs.19 crores payable in four quarterly instalments, and said offer of Rs.19 crores was in addition to the amount already recovered by the non-applicant bank. In so far as the other banks (including the assignees thereof) forming part of the said consortium were concerned, all claims of the same stood mutually settled and compromised between 2009 and 2014 and the details of the respective banks /FIs settled are given in Para 8 (xiv) of the present M.A. The OTS offered by the applicant / defendant no.1 Company came to be accepted and sanctioned by the competent authority of the non-applicant bank vide its communication dated 2nd April, 2014. However, the non-applicant bank gave only a very short period of three months to pay the entire OTS amount of Rs.19 crores as against the legitimately requested period of 12 months. The request made by the applicant / defendant no.1 Company to amend the terms of payment and grant a period of 12 months to pay the entire OTS amount was accepted by the non-applicant bank vide its letter dated April 12, 2014. To show its bona fides the applicant / defendant no.1 Company paid 10% of the OTS amount as an upfront amount towards the OTS amount of Rs.19 crores and after adjusting the same, the balance sum of Rs.17.10 crores was payable in twelve months in four quarterly instalments from the date of conveying the OTS i.e. 2nd April, 2014 with interest @10.25% simple on the entire OTS amount on reducing balance basis. On the basis of a joint application, a consent final order dated 25th April, 2014 was passed by this Tribunal pursuant to which Recovery Certificate No.135 of 2014 was issued. Since it was known to the non-applicant bank that the applicant / defendant no.1 Company did not have the immediate liquidity to repay the entire OTS amount and for that purpose, it would avail financial assistance from a private entity as part of the settlement terms, the non-applicant bank had knowingly acceded to its request for assignment of debts to an RBI approved Asset Reconstruction Company and in terms of the settlement between the parties, the non-applicant bank was also required to issue NOC to the applicants so as to enable them to sale /assign the property (ies) (a) Workers Colony situated at Hapur Road, Modinargar, U.P. which was delayed by the non-applicant bank and as a result thereof, the applicant / defendant no.1 Company herein had to face difficulties in the sale of the aforesaid properties and to adhere to the time schedule of OTS. The M.A. applicants / defendants no.1 & 2 further submit that after persisting follow up, the non-applicant bank responded to their communication dated 26th June, 2014, vide its letter dated 3rd July, 2014 that it shall only issue specific NOC for each unit / flat in total contradiction to its earlier communications and the consent order dated 25th April, 2014 passed in I.A. No.310 of 2014. In reply to the letter dated 3rd July, 2014 of the non-applicant bank, the applicant / defendant no.1 Company pointed out that they had already paid a sum of Rs. 4 crores against the settled OTS, whereas the money so far received from sale of properties is only Rs.1.78 crore till 15th May, 2015 when the local administration put a bank on the registration of title deed which badly hampered the process of sale of the houses / land of these residential colonies and further that to away with the hurdles and mop up finance to liquidate the total settled dues of the bank before 28th March, 2015 and they confirmed that they shall keep depositing the money from the sale of cheque dated 25th July, 2014 for Rs.50 lacsalongwith their communication. However, despite the obstacles and other hurdles on the sale of the properties, the applicant / defendant no.1 Company made provision of funds through assignment of debts of M/s UVARC Ltd. and informed the non-applicant bank. It is further submitted that instead of rendering assistance to the applicant / defendant no.1 Company to enable it to liquidate the settled OTS, in an arbitrary manner called upon to pay the OTS dues of Rs.5.70 crores vide its communication dated 1116thOctober, 2014. Since the applicant / defendant no.1 Company was facing hurdles / difficulties to sell the houses / land situated at Modinagar due to total ban imposed by the local administration and the fact that the non-applicant bank was not ready to render assistance, therefore, it had no option to approach an ARC for funding payment of the residual OTS and this fact was conveyed to the non-applicant bank in a meeting held with its concerned officials on 18th December, 2014. However, even before a decision could be taken by the proposed ARC for funding the payment of the residual OTS dues, the non-applicant bank again called upon defendant no.1 Company to make payment as per OTS schedule vide its communication dated 1st January, 2015. Thereafter, in furtherance of its arbitrary functioning, the non-applicant bank declared the OTS as failed vide its letter dated 15th January, 2015 and further informed that it would proceed to recover its dues in terms of final order / Consent Recovery Certificate after adjusting the payments. The M.A. applications, defendants no.1 & 2 further submit that informing the non-applicant bank vide its letter dated 19th January, 2015 that the local administration had lifted the bank on 2nd defendant no.1 Company , deposited a sum of Rs.1.05 crores with it submitting that first instalment of Rs.4.40 crore as on 28th June, 2014 stood fully paid, However, acknowledging the receipt of Rs.1.05 crore, vide its letter dated 23rd January, 2015 the non-applicant reiterating the contents of its letter dated 15th January, 2015 informed the applicant / defendant no.1 Company that the OTS has failed and demanded the entire dues as per the consent order. Despite facing all odds, impediments and financial crunch, vide its communication dated 30th March, 2016 informed the non-applicant bank that out of the total OTS dues of Rs.19 crores, it had by now paid a sum of Rs.15.80 crores and only a balance OTS dues of Rs.3,92,39,005/- was required to be paid and enclosed cheques of the aforesaid amount alongwith the said communication and submitted that it was difficult for it to serve additional interest liability and requested to waive the same. It is further submitted that due to certain payments having received delayed due to the reasons beyond the control of the applicant / defendant no.1 company, out of the cheques of an amount of Rs.3,92,39,005/- given by defendant no.1 Company only the cheques amount to Rs.2,92,39,000/- were encashed and only Rs.100 lacs now remained to be paid as balance OTS amount for the payment of which the applicant / defendant no.1 Company was making efforts, but could not be made due to registration of several FIRs by the NGO who were acting at the behest of the said vested interest through court orders alleging illegal sale of the houses. The applicants / defendants no.1 & 2 further submit that the applicant / defendant no.1 Company expressed its willingness to pay the balance OTS dues of Rs.1 crore and requested to waive the delayed period, but the non-applicant bank vide its communication dated 20th March, 2017 arbitrarily and unfairly rejected the same. Again vide its communication dated 9th June, 2017 the applicant / defendant no.1 Company expressed its willingness to pay the balance OTS dues of Rs.1 crore along with delayed period interest of Rs.2.55 crores out of which a sum of Rs.35 lacs being 10% of the total amount was deposited as part payment and also requested the non-applicant bank to assign the debt in favour of an NBFC at the time of full and final payment, June 2017 called upon the applicant / defendant no.1 Company was called upon to share the details of NBFC Company for its approval from higher authorities and in response thereto, the applicant / defendant no.1 Company, vide its communication dated 5th September, 2017 shared the details of the NBFC being M/s Status Mark Finvest Ltd. and further requested for assigning the debt in its favour, but no response was received from the non-applicant bank. Finally, pursuant to the repeated follows-ups made by the applicant / defendant no.1 Company, the non-applicant bank issued a letter dated 1st February, 2018 directing it to clear the outstanding dues to the tune of Rs.5023.47 lacs. The applicants / defendants no.1 & 2 further submit that through the persistent efforts of the applicant / defendant no.1 Company, the NBFC M/s Status Mark Finvest Limited provided final assistance to defendant no.1 Company to liquidate the balance OTS dues of the non-applicant bank to the tune of Rs.3,24,62, 100/- issued by the NBFC and a cheque issued by NBFC was provided by the applicant / defendant no.1 Company to the non-applicant bank, but despite that the non-applicant bank arbitrarily unfairly and with malafide intentions returned the same and is not issuing NOC on its favour informing that the request for revival of OTS was not found acceptable. It is submitted that owing to the financial constraints the applicant / defendant no.1 Company could not strictly adhere to the time schedule, though every effort was made by it to liquidate the entire OTS dues of the non-applicant bank. Hence, this M.A.

Pursuant to the notice, the non-applicant Punjab National Bank has filed its reply to the present M.A. Admitting that it had agreed to an OTS subject to payment of Rs.19 lacs vide its letter dated 2nd April, 2014 read with amendment dated 12th April, 2014 to which the applicant / defendant no.1 Company had agreed. It is further submitted that on the basis of OTS, vide order dated 29th April, 2014 this Tribunal was pleased to pass orders holding the non-applicant bank entitled to recover the entire debt under OTS i.e. Rs.19 lacs form the applicant / defendant no.1 Company and its Director, jointly and severally, towards full and final payment and in case the entire amount of OTS is not paid within the stipulated period, the non-applicant bank shall be entitled to recover the entire amount of debt as claimed in the O.A. i.e. Rs.24,33,92,023.76 paisa together with pendent-lite and future interest @ 17.75% per annum with monthly rests and other charges thereon till payment. It is further submitted that as per the OTS and Recovery Certificate, the applicants / defendants no.1 & 2 were to pay the OTS amount till March 2015, but the same was not paid by them and, s such, the OTS failed on 15th January, 2015. It is further asserted that despite the OTS being failed, on the request of the applicant / defendant no.1 Company, fresh OTS was sanctioned by the answering non-applicant bank on June 30, 2015 for which a letter was issued on 2nd July, 2015 for the balance amount i.e. Rs.1270 lacs payable till March 30, 2016 plus delayed period interest which was payable till March 30, 2016 which too was accepted by the applicant / defendant no.1 Company again failed to comply with the terms and conditions of the OTS as well as order dated 29th April, 2014 of this Tribunal. The answering non-applicant bank further submits that since the applicant / defendant no.1 Company failed to pay the entire OTS amount, therefore, it is entitled for recovery of the entire OA amount alongwith future interest @ 17.75% per annum with monthly rests as well as costs. It is further submitted that the present M.A. is the counterblast of the application filed by the non-applicant bank before the National Company Law Tribunal, Allahabad under Section 7 of the Insolvency and Bankruptcy Code, 2016 against the applicant / defendant no.1 Company. It is further submitted that the answering non-applicant bank gave ample opportunities to the applicant / defendant no.1 Company to come forward and pay the outstanding dues in terms of OTS / RC, but they had no intention to pay the same and went on making false and frivolous OTS proposal which it never honour and even after lapse of more than three years the applicant / defendant no.1 Company has not been able to clear the legitimate dues of the answering non-applicant bank. On merits, denying all the contra allegations made by the applicant / defendant no.1 & 2, the answering non-applicant bank has prayed for dismissal of the present M.A. with costs.

I have heard learned counsel for the parties and have gone through the entire record carefully.

Now the point for consideration is whether the M.A. applicant is entitled for a direction to the respondent Punjab National Bank accept the residual OTS dues of Rs.65 lacs being the principal amount and Rs.2,59,62,100/- (total Rs,3,24,62,100/-) as overdue interest from defendant no.1 Company and for issuing No Dues Certificate and releasing all its charge / lien on the assets / securities and also for condonation of delay in making payment under the OTS, as prayed for, under Section 19(25) read with Sections 22, 26(2), 27(1) and 27(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rule 18 of the Debts Recovery Tribunal (Procedure) Rules, 1993?

The contention of the M.A. applicant is that so far as the dues of the respondent Punjab National Bank are concerned, after several rounds of meetings, it furnished OTS proposal dated 27th March, 2014 for setting its dues and another of Rs.19 crores was made. This amount of Rs. 19 crores was in addition to all the amount already received by the bank during the pendency of the OA and SA which was more than Rs.13 crores. It is further the contention of the M.A. applicant that alongwith OTS proposal a sum of Rs.1.90 crore was paid as upfront payment and the balance amount of Rs.17.10 crore would be paid in four equal quarterly instalments alongwith simple interest @10.25% per annum and further that to enable the defendant Company to source and arrange the balance OTS amount and interest, defendant no.1 Company had requested the bank to provide necessary NOC to sell the properties 9a) Alok Park Officers' Building and (b) land and buildings of workers colony situated at Hapur Road, Modi Nagar and any other property held with the bank was to be continuously held as security till the final balance OTS amount was paid. The M.A. applicant further contends that upon acceptance of the OTS proposal, the amount of Rs.27 lacsalongwith interest ling with this Tribunal would be adjusted towards the OTS amount. The defendant Company thereafter approached the Punjab National Bank by communication dated 9th April, 2014 seeking amendment of the terms of payment and the said bank accepted that a sum of Rs.17.10 crores would be required to be paid by defendant Company within 12 months i.e. in four quarterly instalments with effect from 2nd April, 2014 with interest @ 10.25% per annum simple. The first three instalments of Rs.4.40 crores were to be paid by 28th June, 2014, 28th September, 2014 and 28th December, 2014 whereas the last and the fourth instalment with interest was to be paid by 28th March, 2015. Accordingly, a joint compromise application was filed before the Tribunal on April 25, 2014 it contained the terms of settlement. Instead of the amount claimed in the O.A. i.e. Rs.24,33,92,023.76 the parties had agreed for OTS of Rs.19 crores. The joint compromise application was disposed of by this Tribunal vide order dated 25th April, 2014. By its communication dated June 26, 2014, defendant Company had approached the Punjab National Bank and sought NOC for sale of the aforesaid two properties but the same was not issued even after three months. It is further contended that in the absence of the NOC, defendant Company was not in a position to realize the requisite funds. The bank was informed that with great difficulty the defendant Company was able to mobilize funds of Rs.1.46 crores which was being remitted to the bank by RTGS on 27th June, 2014 and defendant Company had requested the bank to issue NOC relating to the said two properties without any further delay. So far as the assignment to UV Asset Reconstruction Company is concerned, the bank informed that it had requested a formal letter of intent with the other terms and conditions to be executed by the ARC and that ARC had conducted due diligence on June 15, 2014 and the defendant Company had informed that the balance OTS amount of Rs.16,46,58,000/- would be paid by the ARC. It is further contended that meanwhile the Local Administration put a ban on the registration of the title deeds which hampered the process of sale of the land and a cheque of Rs.50 lacs was enclosed to be adjusted against the OTS instalment. The Punjab National Bank vide its letter dated 11th August, 2014 indicated the fact that the bank would continue its charge over the Administrative Block and further that as per the terms and conditions of the allotment of land by the UP Government, the transfer would be subject to mutual consultation with the Government of UP and FIs. The bank was further informed that certain vested interests were taking undue advantage of the circumstances and creating further hurdles in the sale of the various units portions of the properties and that in view of the circumstances and great difficulty, the defendant Company had been able to mobilize an amount of Rs.4.50 crores only which the Company had remitted to the Bank leaving a balance of Rs.14.50 crores of the agreed OTS amount. It is further the contention of the M.A. applicant that defendant Company wrote a letter to the Chief Secretary, Government of UP, to permit the sale of the land for arranging funds for liquidation of the OTS amount. The Bank by its letter dated 12th September, 2014 informed that defendant Company that the defaulted amount of OTS was still in arrears and by another communication dated 16th October, 2014 the bank reminded the defendant Company that the defaulted amount of Rs.1.30 crores which was payable upto 28th June, 2014 had not been paid. Responding to the letter dated 16th October, 2014 defendant Company vide its letter dated 20th October, 2014 informed the bank that despite its best efforts the ban imposed by the local authorities had still not been lifted for sale of the land. It is further submitted that vide its letter dated 28th November, 2014 the Punjab National Bank had reminded the defendant Company of the default and had informed that as against the defaulted OTS amount of Rs.5.70 crores, only a sum of Rs.25 lacs had been deposited and that the defaulted OTS amount of Rs.5.45 crores be paid immediately. The bank continued issuing reminders about the defaults in making the payments towards the OTS amount. By letter dated 19th January, 2015, it was informed that the delay caused was on account of the uncalled for intervention of the Government authorities in the matter of sale of the houses and land which was the only source of payment of the agreed OTS. It is further contended that the earlier restrictions imposed by the Government of UP were lifted on 2nd January, 2015. It is further contended that vide letter dated 23rd January, 2015 confirmed that receipt of Rs.1.50 crores but the AGM of PNB through this letter reiterated that the OTS had failed and all reliefs and concessions lapsed. It is further submitted that a meeting was held between the MD of defendant Company and ED and GM of the respondent bank. By its letter dated 25th February, 2015 Punjab National Ban through its AGM issued NOC for sale of the aforesaid two properties. The M.A. applicant further contends that by another letter dated 26th May, 2015 discussions were held with the GM of the bank and MD of defendant Company and the defendant Company had informed that they will sell some vacant houses and land in an expeditious manner and the residue amount of OTS of Rs.12.70 crores was to be liquidated in the following manner:-

 Rs.3 crore immediately on confirmation of the condonation of delay and revival of OTS.

 Rs.2 crore by 31.09.2015

 Rs.2 crore by 31.12.2015

 Balance OTS amount if Rs.5.70 crores by 31st March, 2016

 Entire amount of interests on OTS payments shall be liquidated by 30th June, 2016

It is further contended that a perusal of the letter dated 2nd July, 2015 issued by the AGM of the Bank shows that the OTS proposal was revived according to which the entire residual dues to the tune of Rs.9.70 was payable by 31st March, 2016 alongwith expenses and delayed period interest @10.25% per annum simple on reducing balance basis from 2nd April, 2014 till the date of final payment i.e. 30th June, 2016. By letter dated 31st December, 2015 defendant Company had informed the bank that as against the committed amount of Rs.2 crores, an amount of Rs.1.50 crores had been deposited by 30h December, 2015. Though letter dated 30th March 2016 the defendant Company had pointed out that out of the principal amount of agreed OTS of Rs.19 crores, a total payment of Rs.15,07,60,995/- had been deposited and that an amount of Rs.3,92,39,005/- is remained. It is further contended that out of the cheques presented for payment of the balance amount, the cheques for an amount of Rs.325 lacs were returned unpaid for want of funds. It is further submitted that out of the cheques of Rs.325 lacs, cheques of Rs.225 lacs had been passed and the cheques of Rs.1 crore were yet to be passed. As per letter dated 19th April, 2016, out of the OTS amount of Rs.19 crores, an amount of Rs.18 crores had been paid to the bank, leaving Rs.1 crorealongwith expenses and delay interest @ 10.25% per annum simple. By its subsequent letters dated June 02, 2016 and August 17, 2016 while reiterating its demands as made in its letter dated May 25, 2016 the bank confirmed that out of the total OTS amount of Rs.19 crores, an amount of Rs.18 crores had been deposited with it leaving an amount of Rs.1 crore plus interest and expenses but the said communication was not a revalidating of extension of the OTS. It is further contended that by its communication dated August 18, 2016 the defendant Company had reiterated the problems including the false cases giving rise to the FIRs and hurdles being placed by third parties in its way to arrange the funds to pay the balance OTS amount. In the meanwhile, the branch head of the respondent bank vide its letters dated 18th August, 2016 and 26th August, 2016 requested for settlement of the OTS at Rs.1 crore and informed defendant Company that its request had been referred to the higher authorities which had not accepted the same hence the defendant Company was to pay the balance OTS amount alongwith interest and overdue interest as per sanction and to her charges immediately. It is also the contention of the M.A. applicant that by its communication dated June 06, 2017 addressed to the Zonal Head of hte Bank, the defendant Company reiterated its banafide to make payment of the balance OTS amount with overdue interest @ 10.25% per annum simple, which was worked out to Rs.2.55 crores approximately and alognwith the said letter a part payment of Rs.35 lacs towards the outstanding residual OTS and overdue interest was also made leaving the balance of Rs.65 lacs towards the principal OTS amount besides delayed period interest. It is further contended that the defendant Company approached the respondent bank through its letter dated 15th March, 2018 reiterating its earlier request and the fact that out of OTS amount of Rs.19 crores only an amount of Rs.65 lacs remained and a photocopy of the cheque of a sum of Rs.3,24,62,100/- which covered the discharge of the entire OTS amount and overdue interest as on 10th March, 2018 was also enclosed with a request to allow a personal hearing so that early closure of the matter could be done. Another letter dated 13th March, 2018 was also followed, but the Punjab National Bank vide its letter dated 22nd March, 2018 informed defendant Company that its request for revival of the OTS was not acceptable and, thus, it was returning the cheque of Rs.3,24,62,100/- dated 15th March, 2018. In the backdrop of the same, the defendant Company was constrained to approach this Tribunal.

Learned counsel for the M.A. Applicant has vehemently contended that this Tribunal is not without power and jurisdiction to pass necessary directions in the larger interest of justice in view of the provisions of Section 19(25) of RDDBFI Act, 1993 and Rule 18 of the DRT (Procedure) Rules, 2002 as well as Sections 22(1), (26*2), 27(1) and 27(2) provide sufficient powers to this Tribunal to pass necessary orders. Learned Senior Counsel has also relied upon a decision of the Hon'ble High Court of Delhi and also that of Hon'ble Madras High Court in support of his contentions.

The Hon'ble Madras High Court in its judgment in the matter of Narmathaa Textiles Ltd. Vs. Union Bank of India, Writ Petition No.4218 of 2011 has held that "Petitioner was permitted to pay amount in four instalments - Petitioner paid first and second instalments -Admittedly, SARFAESI Application was filed by an agreement holder and the proceedings stood in way of selling of property and to paying third installment - Bank was a party to the said proceeding and as such, Bank was fully aware of reasons which actually prevented Petitioner from selling property and to paying third instalment - Guidelines proceeds on basis that while though stand should be taken against wilful defaulters, sympathetic view has to be taken in case of those defaulters who were victims of circumstances -Petitioner was not in a position to sell property on account as stay obtained by joint venture holder agreement for developing property - Recovery policy permits Bank to condone delay up to a period of 36 months, subject to payment of interest - In view of the guidelines requiring Bank to consider request to condone delay in complying with one time settlement, Petitioner had got a right to call upon Bank to consider condonation application, in accordance with RBI Guidelines". In its decision in the matter of M/s VEETEE Fine Foods Limited Vs Punjab National Bank and others, Writ Petition (Civil) No.9742/2015, decided on January 28, 2016, the Hon'ble High Court of Delhi has held at Paras 13 to 16 as under:

"13 The principle de minimis non curattex guides the Court that trifles need to be overlooked while considering wrongs and faults. The OTS settlement amount was Rs.20.96 crores out of which Rs.2 crores was payable upfront. From the balance of Rs.18.96 crores, Rs.17 crores had to be paid by March 31, 2014 which was paid well before the stipulated date. Of the remaining sum of Rs.1.96 crores, which had to be deposited by August 13, 2014, Rs.1.76 crores was paid well before the six months i.e. on March 27, 2014. The defaulting amount is 0.9% of the sum payable. The delay is of 6 months reckoned from August 13, 2014, but would be of two weeks reckoned from February 13, 2015 the date extended by the bank as per its letter dated February 07, 2015.

The principle of de minimis requires relief to be granted to the petitioner along with another reason, being condition no.(iii) of the letter dated February 13, 2014 which envisaged interest on delayed payment of the OTS amount i.e. the settlement would be that the principle sum to be repaid was frozen i.e. Rs.20.96 crores, with a schedule for repayment with added on liability to pay the interest on the delayed payment.

The petitioner has paid the amount of interest for the delayed period.

We therefore declare that the petitioner has satisfied the terms of the settlement vis-a-vis State Bank of India"

Learned counsel for the M.A. applicant has also relied upon Recovery Division Circular No.45/2017 dated November 28, 2017 issued by the Punjab National Bank in supersession of Recovery Division Circulars No.16/2017 dated 1st April, 2017 and No.21.2009 dated 26th December, 2009. Clause 25 of the Recovery Division Circular No.45/2017 dated November 28, 2017, which relates to 'Extension of time period for payment of OTS amount' reads as under:

"25. EXTENSION OF TIME PERIOD FOR MP PAYMENT OF OTS AMOUNT.

25.1 Without further Sacrifice.

25.1.1 Extension of time period beyond the originally stipulated due date of payment for OTS amount in already approved OTS cases without any further sacrifice can be granted by respective sanctioning authorities maximum up to:

COCAC LEVEL - I

ZOCAC

HOCAC LEVEL - I

HOCAC LEVEL - II

HOCAC LEVEL - III

12 months

15 months

24 months

Full powers

Full Powers

"HOCAC-II will have full powers in the cases of talking up to HOCAC-II level only

25.1.2 Same/Similar power shall be exercised by a higher authority for the OTS proposal approved by their lower authority.

25.1.3 HOCAC Level will may approve extension in cases sanctioned by HOCAC level-III and MC.

25.2 With Further Sacrifice

25.2.1 Extension of Time period with further sacrifices i.e. without/partial payment of interest shall be placed to the next higher authority other than who had originally approved the OTS, who shall exercise the above power subject to his delegated authority provided total sacrifice (sacrifice at the time of approval plus further proposed sacrifice of interest loss) remains in his powers). Proposals approved originally by MC shall be placed to MC only).

25.2.2 Proposal sanctioned by HOCAC Level II or earlier by Executive Director / HOCAC Level III or earlier by CMD/MD &CEO / Management Committee shall be considered by respective Sanctioning Authority within delegated power."

In the present case, as seen from the record, over and above the amount of OTS, the Punjab National Bank has received a sum of Rs.13 crores as its share from the sale of the plant and machineries after filing of the O.A. which it claimed as Rs.24,3,92,023/- on the date of filing. It was to receive further amount of Rs.19 croresalongwith simple interest @ 10.25% per annum. All other banks of the consortium have settled their respective claims and this fact is not disputed. Furthermore, from the agreed amount of OTS of Rs.19 crores, no amount is sorted to be reduced either from the OTS amount or interest amount and there would be no further sacrifice that the bank would have to give. It was not the case of the bank that the requests made by defendant Company for issuance of appropriate NOCs flat / property wise were in any manner unreasonable and it was indeed much later that the issuance of the requisite NOCs, sale of the flats / land actually progressed. It was also not the case of the Bank that the ban imposed by the Government Authorities did not exist at the relevant time and did not cause the delay in deposit of the OTS amount. It is also admitted by the bank that out of the OTS agreed amount of Rs.19 crores, it indeed has received Rs.18 crores and further an amount of Rs.35 lacs deposited by the defendants is also admitted. In fact, in Para (vii) of its reply, the bank has admitted that as per the OTS, a sum of Rs.65 lacs besides overdue interest in terms of RC with monthly rests is pending. The bank also states that in the meanwhile it had initiated proceedings under Section 7 of IBC and also the RC proceedings are pending before the learned Recovery Officer of this Tribunal. The main ground of opposition of the present application is that the defendants had no intentions to pay the OTS agreed amount and kept on making false and frivolous OTS proposals which it never honoured and it is only after the bank initiated proceedings under IBC that the defendants filed the present application. The bank has also not disputed the dated of payments made to it nor refuted that cheque of Rs.3,24,62,100/- would not have been the amount covering the balance principal sum of OTS amount and full delayed interest @ 10.25% per annum simple. In fact, the tendering of the said cheque for an amount of Rs.3,24,62,100/- and returning the same is also not disputed by the bank.

Having considered the pleadings, documents and respective arguments of the parties as also the peculiar facts and circumstances of the case, I am of the considered opinion that the delay in making payment of the entire OTS amount within the stipulated time by the defendants was unintentional. More so, this Tribunal cannot lose sight of the fact that during the pendency of the O.A. for recovery of Rs.24,33,92,023/- Punjab National Bank had recovered more than Rs.13 crores and the settlement of Rs.19 crores was over and above the already received. The delayed interest on the OTS amount has also been tendered. In view of the aforesaid facts and circumstances and also in the larger interest of justice, when the balance of amount of OTS and delayed interest are being tendered, this Tribunal is of the considered view that it is a fit case to direct the said bank to receive a sum of Rs.65 lacs towards the balance OTS amount alongwith a sum of Rs.2,59,62,100/- on account of delayed period interest, totalling a sum of Rs.3,24,62,100/-, towards the OTS amount in view of its own Policy as contained in Serial No.25 of its Recovery Division Circular No.45/2017 regarding the policy of the Bank on Recovery and Management of NPAs. On receipt of the aforesaid amount, the Recovery Certificate shall stand fully satisfied. The present M.A. is accordingly disposed of."

Feeling aggrieved by this direction given by DRT to the appellant Bank the Bank has come up in appeal. I heard oral arguments advanced by the counsel for the parties and read the written arguments submitted by them.

A bare perusal of the said order passed by the learned DRT in a finally disposed of matter shows that almost a fresh trial was conducted by the learned Presiding Officerwhich was not permissible in law and the relief given to the defaulting borrowers was also totally impermissible in law. The impugned order was without jurisdiction as the learned Presiding Officer of the DRT had become functus officioafter he had disposed of the O.A. in terms of the compromise arrived at between the parties. The miscellaneous application on which the impugned order came to be passed was misconceived one and the learned Presiding Officer ought not to have got persuaded by the defaulters to ignore the fact they had defaulted in the payment of Bank's money as per the compromise decree and to condone the non-compliance of the consent order and that too contrary to the wishes of the Bank.

The learned Presiding Officer did not keep in mind the fact that he had already become functus officio after he had disposed of the O.A. as settled and made the joint settlement application as a part of his order. When the consent order was passed the same could not be varied and substituted on an an application moved unilaterally only by one of the two parties to the settlement. The Bank had undisputedly not consented to the passing of the impugned order condoning the default on the part of the defendants in the O.A. in making payments to the appellant Bank. The Bank had in its reply to that application seriously opposed grant of any relief to the defaulting borrowers who had by that time become defaulting certificate debtors(CDs) and against whom recovery proceedings had also been initiated by the recovery officer attached to DRT-II.

In support of my conclusion that the consent order passed in the O.A. could not be revoked and substituted by an all together different order at the instance of the defaulting CDs reliance is placed on one judgment of the Hon'ble Supreme Court made rendered on 23rd September, 1996 in C. A. No .13001-13005/-96,"Gupta Steel Industries vs M/s. Jolly Steel Industries Pvt.Ltd." That was also a case of disposal of the case by consent of the parties and one party had not complied with the terms of settlement. This is what the Hon'ble Supreme Court held when the matter reached there:-

"The admitted position is that pursuant to a compromise entered into between the parties, pending the first appeal in the High Court, a compromise decree came to be made by the Division Bench on 12.4.1991. Clause (2) of the Compromise Decree reads as under;

"2,(a) The parties agree that Jolly Steel Industries Pvt. Ltd. and Jolly TorsteelPvt . Ltd ., the respondents herein and the Original plainltiffs in Suit No.446 of 1987 and Suit No.447 of 1987, respectively, shall between them s deposit in the Trial Court a sum of Rs, 15,00,000/- (Rupees Fifteen Lakhs only) in the aggregate on or before 31st May, 1991 and a further sum of Rs.10,40,000/- (Rupees Ten Lakhs and forty thousand only) on or before 29th June, 1991;

(b) These amounts are to be deposited in Suit No.446 of 1987 in the Court of Additional Civil Judge, Senior Division Pune, on account of over payment by the Appellants (Original Defendants) as the Defendants were not liable to pay and the Respondents (Original Plaintiffs) were not entitled to receive the same.

(c) The Appellants (Original Defendants) are at liberty to withdraw the aforesaid amounts."

Admittedly, Rs.12 lakhs was deposited after expiry of the last date, namely, June 29,1991 after one month. In the meanwhile, the respondents filed an application for extension of time in the trial Court. That was dismissed on the ground that it had no jurisdiction Consequently, the application came to be filed in the High Court. Similarly under clause 5(a) the appellants also agreed to hand over possession of the disputed land and the machinery to the receiver on or before 31st March, 1992. In view of the default committed by the respondent, the appellants come to file an application, on the basis of which the High Court passed an order to maintain the status quo on March 27, 1992. The appellants have taken out contempt proceedings against the respondents in which another Division Bench of the High Court passed an order on July 18, 1996 stating that the respondents have prevented the appellants from taking possession due to the factory having been locked by the respondent. Nonetheless, no action was taken on the contempt petition. In the impugned order, the Division Bench passed an order accepting the delayed payment by the respondents and directed the appellants to pay damages for use and occupation as may be determined by the civil Court. Thus, these appeals by special leave.

As principle of law, the High Court was obviously incorrect in interfering with and modifying the consent decree unless parties agree for the same." (emphasis laid)

Learned counsel for the respondents had sought to justify the impugned order relying upon some judgments, which are referred in the impugned order also, that since only a fraction of the settled amount remained to be paid by the respondents the learned Presiding Officer was well within his jurisdiction to condone the delay in making payments as per the consent decree. It was alsosubmitted that the DRT could extend the time for payments on the analogy of Section 148 of Code of Civil Procedure(CPC). However, these submissions have no legal force and in support of the view that DRT had become functus officio with the disposal of the O.A. on 25.04.2014 I will now refer to some binding judicial precedents.

Hon'ble Supreme Court had in its decision given in Appeal (civil) 4243-4244 of 2004, "State Bank of India &Ors. S.N. Goyal" on 02/05/2008 had observed as under:-

"18. It is true that once an Authority exercising quasi judicial power, takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage, an Authority becomes functus officio in regard to an order made by him. P. RamanathaAiyar's Advance Law Lexicon (3rd Edition, Vol.2 Pages 1946-47) gives the following illustrative definition of the term 'functusofficio' :

"Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision."

Black's Law Dictionary (Sixth Edition Page 673) gives its meaning as follows :

"Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority".

I will now notice, in extensor, one judgment of High Court of Karnataka in which a very serious view was taken when some judicial order was passed by a Subordinate Judge in a disposed of matter which according to the High Court could not have been passed since the Judge had become functus officio. From that judgment dated 12th December, 2017 in WRIT PETITION NOS.44691-44692 OF 2017 "Sri M.C. Bachappa&anr. VsSmt. Nagarathnamma&Ors."The following relevant paras are being extracted:-

"All these petitioners who are not parties to the original proceedings in O.S.No.7758/2016 are before this Court to quash the orders dated 13.04.2017 and 17.07.2017 passed by the XX Additional City Civil and Sessions Judge (CCH-32) Bengaluru in respect of Sy.Nos.9/4 and 9/3 measuring 2 acre 11 guntas situated at Jakkur village, YelahankaHobli, Bengaluru North Taluk.

The brief facts of the cases are that, the respondent No.1 who is the plaintiff in O.S.No.7758/2016 filed suit for declaration and permanent injunction against the respondent Nos.2 and 3 in respect of the suit schedule property morefully described in the schedule to the suit, contending that the plaintiff was the owner of the suit schedule property and she is entitled to the relief sought for. The same was contested. The trial Court by judgment and decree dated

04.2017 decreed the suit, declaring that the plaintiff is the owner of the suit schedule property and further ordered that the registered agreement dated 03.08.1992 is barred by limitation and not binding on the plaintiff and further decreed that the defendant-Society or anybody on their behalf permanently restrained from interfering with theplaintiff's peaceful possession and enjoyment of the suit schedule property. The said decree passed by the trial Court in favour of first respondent-Nagarathnamma has reached finality.

After the decree passed by the trial Court, the original plaintiff filed an application under Section 151 of the Code of Civil Procedure for a direction to the Amruthhalli Police Station, Bengaluru North and Sub Registrar/Tahsildar, Yelahanka, Bengaluru North Taluk for protection of the suit schedule property, contending that the suit filed by the plaintiff-Nagarathnamma was decreed by the trial Court on 01.04.2017, restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Even after judgment and decree passed by the trial Court, the defendant Society is not allowing the plaintiff and her family members entering into the suit schedule property and the Society also taken temporary electricity connection from BESCOM in the suit schedule property illegally. Therefore, the plaintiff approached the Amruthhalli police station on 10.04.2017 and Sub Registrar/Tahsildar, Yelahanka, Bengaluru North Taluk for the protection of the suit schedule property and for change of revenue records.

The plaintiff also filed another application under Section 151 of the Code of Civil Procedure on 17.07.2017 to direct the Deputy Commissioner of Police North-East Division, Bengaluru (Amruthhalli Police) for protection to the suit schedule property and the Joint Commissioner, BBMP, Byatarayanapura, Bengaluru for transfer of katha and revenue documents of the suit schedule property in favour of the plaintiff, reiterating the averments made in the earlier application.

The trial Court considering the said applications, by the impugned order dated 13.04.2017, has recorded that in view of the submission made by the learned advocate for defendant Nos.2 and 3 that they have no objection to allow the application, it has issued direction to the Circle Inspector of Police, Amruthhalli Police Station to provide necessary protection to the suit schedule property as prayed in the I.A. and by the impugned order dated 17.07.2017, it has also directed the Deputy Commissioner of Police, North East Division, Bengaluru (Amruthhalli Police) as well as the Joint Commissioner, BBMP, to provide police protection and to issue katha in respect of suit schedule property.

While passing the impugned order dated 17.07.2017, the trial Court recorded that, the learned Advocate for respondent No.3 filed a memo, who is representing the Special Officer, Karnataka State Kadhi and Village Industries House Building Co-operative Society that he has no objection for construction of the compound wall by demolishing the temporary sheds and for cancellation of the BBMP katha issued in the name of the Society in respect of the suit schedule property and moreover, the Society has not preferred any Appeal against the judgment and decree. Therefore, the learned trial Judge allowed the application and directed the Deputy Commissioner of Police, North East Division, Bengaluru (Amruthhalli Police) to provide police protection to the plaintiff in respect of the suit schedule property and the Joint Commissioner, BBMP, Byatarayanapura, Bengaluru to issue katha in respect of the suit schedule property in favour of the plaintiff. Hence, the present writ petitions are filed contending that, in view of the impugned orders passed by the trial Court, the jurisdictional police and the jurisdictional BBMP Joint Commissioner are taking action against the petitioners, who are the owners of the properties in question as stated in the writ petition. Hence, the present writ petitions are filed for the reliefs sought for.

Learned counsel for the petitioners also contended that, learned Judge become functus officio and he has no power to issue such directions. He would further contend that the petitioners are owners of Site Nos.34, 35 and 37 situated at Khadi Board, Jakkur village and judgment and decree passed by the trial Court is not binding on the petitioners. Therefore, he sought to quash the impugned orders by allowing the writ petitions.

In view of the aforesaid rival contentions urged by the learned counsel for the parties, this Court called for explanation from the concerned Judge, who passed the impugned orders as to under what circumstances, he has issued directions to provide the police protection and to issue katha in respect of the agricultural lands, that too after disposal of the suit between the parties .....

In response to the order passed by this Court dated 13.11.2017, the learned Judge, who passed the impugned orders after the decree, by his explanation dated 23.11.2017, sought to justify the impugned orders and ultimately has stated that if thereis any lapses, while considering the IA's, the same may be pardoned. The explanation offered by the learned Judge, who passed the impugned orders relying upon the judgments which pertain to pending matters, is not proper and this Court is not satisfied with the explanation. Therefore, the learned Judge who passed the impugned order is directed not to repeat such mistakes and a word of caution is issued to him to be more careful in future.

The suit filed by the first respondent Nagarathnamma came to be decreed on 01.04.2017. The said decree has reached finality. Once the decree has reached finality, the learned Judge who passed the decree becomes functus officio. In spite of the same, the plaintiff filed two applications, one for police protection and another for direction to Joint Commissioner, BBMP to issue Katha and revenue records in respect of the suit schedule property in favour of plaintiff/decree holder.

Unfortunately, for both the applications, learned counsel appearing for defendants submitted no objection to allow the same. Thereby, the trial Court proceeded to pass the impugned orders which are totally without jurisdiction.

Once decree is made, the learned Judge becomes functus officio. The dictionary meanings of functus officio are as under:

As per BLACK'S LAW DICTIONARY, 2009, 9th Edition, Pg.No.743 "Having performed his/office, an officer or official body without further authority or legal competence because the duties and functions of the original commission have been fully accomplished."

The Hon'ble Supreme Court while considering the definition of functus officio in the case of Assistant Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Limited reported in (2008)14 SCC 171 at para 24 held as under:

The learned counsel for the Revenue contended that the normal principle of law is that once a judgment is pronounced or an order is made, a Court, tribunal or adjudicating authority becomes functus officio (ceases to have control over the matter). Suchjudgment or order is "final" and cannot be altered, changed, varied or modified. It was also submitted that the Income Tax Tribunal is a tribunal constituted under the Act. It is not a "Court" having plenary powers, but a statutory tribunal functioning under the Act of 1961. It, therefore, cannot act outside or dehors the Act nor can exercise powers not expressly and specifically conferred by law. It is well settled that the power of review is not an inherent power. The right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be reviewed.

The petitioners brought to the notice of the Court that after the judgment and decree is passed, the learned Judge who passed the impugned orders becomes functus officio and therefore, the impugned orders passed are without jurisdiction and hence, it is the duty of this Court to set right the same in order to maintain judicial discipline in the legal system. Even in the absence of the present petitions, once it is brought to the notice of this Court by the petitioners or respondents, it is the duty of this Court to exercise the powers under Article 227 of the Constitution of India to rectify the mistake committed by the learned Judge, who passed the impugned orders, which are totally without jurisdiction. In view of the aforesaid reasons, the writ petitions are disposed of. The impugned orders passed by the trial Court dated 13.04.2017 and 17.07.2017 are quashed.

Registry is directed to send a copy of this order to the concerned learned Judge, who passed the impugned Orders, after he become functus officio.

Copy of this order and copy of the explanation dated 23.11.2017 offered by the learned Judge be sentto the concerned Hon'ble Administrative Judge, to take appropriate action in accordance with law.

The registry is directed to send copy of this order to all the Prl. District Judges in the State with a request to circulate the same among all the Judicial Officers who are handling the civil matters in their Units for proper adjudication."(emphasis laid)

Hon'bleSupreme Court in "NarpatSingh vs. Rajasthan Financial Corporation"Appeal (civil) 2181-2182 of 2001 decided on 24/09/2007 had observed as under:-

"I.A. No. 15-16 for clarification and direction of Court's Order dated 3.5.2007 are totally misconceived. Moreover, ordinarily nos. I.A. lies after a case is finally disposed of. Ordinarily, an I.A. is maintainable only in a pending case. Once a case is finally disposed of the Court becomes functus officio, and thereafter an I.A. lies ordinarily only for correcting clerical or accidental mistakes. The same are accordingly, dismissed."

Hon'ble Supreme Court in "State Of Uttar Pradesh vs Brahma Datt Sharma And Anr." reported as 1987 SCR (2) 444, had observed that:-

"The High Court's order is not. sustainable for yet another reason. Respondents' writ petition challenging the order of dismissal had been finally disposed of on 10.8.1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29.1.86 he could have filed a separate petition under Art. 226of the Constitution chal- lenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning."

Before wrapping up the matter,I will alsorefer to one judgment of Punjab and Haryana High Court inLPA No.90 of 2012,"The Adviser To The Administrator vs Sh. B.K.Nanda"decidedon 16 August, 2012.

"............On the analogy of power to review an order, an application for extension of time would also not be maintainable before the statutory authority, as it has the effect to alter the order, which has already attained finality after the authority has become functus officio. The Civil Court has power to extend or enlarge time in terms of Section 148 of the Code. But in the absence of such analogous power on the statutory authority under the Act, such Authority will not have any power to extend period fixed in exercise of revisional jurisdiction at an earlier stage.

The Hon'ble Supreme Court in MD, Army Welfare Housing Organization case (supra) was considering the question; whether an Arbitrator has jurisdiction to pass an interim order under the Arbitration Act, 1940 in the absence of any specific agreement in relation thereto. It was held that an Arbitral Tribunal is not a court of law. Its functions are not judicial functions. It cannot exercise its power ex debitojustitiae. ...........

The Authority under the Act does not exercise the jurisdiction ex debitojustitiae i.e. it has no inherent power as of right to make such orders as may be necessary for the ends of justice........................

........................ The orders passed by the Statutory Authorities under the Act are regulated and controlled by the provisions of the Act and such authorities do not possess any inherent powers i.e. ex debitojustitiae. The Authorities are bound to consider the rival contentions and pass orders, which are in terms of the Statute and in furtherance of the cause of the Statute. Such quasi judicial authority, a creation of the Statute, cannot travel beyond the Statute to confer a benefit after it has become functus officio and has ceased to exercise jurisdiction or authority to re-decide otherwise it would be conferring power ad infinitum where none exists. It is the foundation of jurisprudence that litigation must come to an end at the last logical terminus enjoined by law."

Thus, the impugned orderpassed by the DRT in the present case is clearly in the teeth of these judgments of the superior Courts including the highest Court of the land. This is not a case of extension of time by the DRT as was contended by the learned counsel for the respondents and, therefore, I need not deal with the judgments cited by him in which scope of Section 148 CPC regarding powers of Civil Courts to extend the time fixed by the Courts for doing some act has been considered. Here, is a case of settlement of disputed between a creditor and borrower who had mutually agreed for a time frame for payment of Bank's dues and the borrower had defaulted in payment as per the settlement. That time frame could be changed, as held by the Hon'ble Supreme Court in its judgment already referred to in this order, only with the concurrence of the all the parties to the settlement and in the present case the Bank had not given its consent before the DRT to alter the order dated 25.04.2014. The said legal position settled by superior Courtscould not be ignored at all by the DRT and consequently this appeal deserves to succeed.

The question raised by the learned counsel for the appellant Bank that by passing the impugned order in a disposed of matter huge financial loss has been caused to the 'public exchequer'can be examined by the Central Government.

This appeal is accordingly allowed and the impugned order passed by the DRT-II, Delhi stands set aside. Records of DRT be sent back with a copy of this order. Copy of this order shall also be sent to the recovery officer to ensure recovery, at the earliest, considering the fact that the recovery of huge amount of public money is over due for quite a long period now, of full public money which was to be recovered from the respondents-defendants in the event of default on their part to honour the consent order passed in the O.A. which undisputedly they committed.