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Judgment
Heard Learned Counsel for the parties. The Petitioners have come up before this Court against the Order Dated 28.1.2011 passed by the Debts Recovery Tribunal Cuttack in O.A. No. 301 of 2010 u/s 19(13)(A) of the Recovery of Debts due to Bank & Financial Institutions Act. The relevant part of the aforesaid order is extracted herein below:-
From the perusal of the records it is seen that the applicant bank had not specified the properties required to be attached & the estimated value thereof. Admittedly, the applicant bank has filed the above Original Application for the recovery of Rs. 12,39,538.35 with costs & interest.
If there is an apprehension that the Defendants are likely to transfer & dispose of their properties either to defeat or delay ultimate decree, in its fairness, judicial prudence warrants that to be on the safer side an interim order be passed in favour of the bank to see that not even an inadvertent delay unnecessarily defeats the ends of justice. By allowing the interim relief, it ultimately protects, subserves & enhances the overall public interest. In my opinion the interest of justice will meet if the Defendants No. 4 & 5 are directed to furnish the security for the said amount within a period of ten days. It may be sufficient to satisfy the certificate for recovery of debt if issued after the adjudication of the case.
The provisions of Section 19(13) (A) of the RDDB & FI Act are Similar to the provisions made under Order 38, Rule 5 of the C.P.C. i.e. attachment before Judgment. The object of the aforesaid provisions of Order 38, Rule 5 of the C.P.C. came up before this Court in the case of M/s. J.M. Buxi & Company v. M/s. L.M. Hati & Company & ors, 1987 (I) OLR 407, wherein the Court held thus:-
The object of such a provision obviously is to prevent any attempt on the part of the Defendant to obstruct or delay the execution of the decree that may be ultimately passed against him. The Court before invoking its power under the aforesaid rule, therefore, must be satisfied that the Defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court with the intent to obstruct or delay the execution of a decree that may be passed against him. This satisfaction of the Court has to be arrived at on the basis of affidavits or otherwise. The satisfaction of the Court, however, must be objective & not subjective & consequently, on the materials, the Court must come a conclusion about the prima facie certainty of the Plaintiffs'' success & the existence of a grave danger or a genuine apprehension that a dishonest Defendant is endeavouring to frustrate the probable fruits of the Judgment.
The aforesaid decision has been referred by this Court in the case of State of Orissa and Others Vs. Housing and Urban Development Corporation Ltd. and Others, .
A bare perusal of the impugned order of the Tribunal show that the aforesaid preconditions for passing the order u/s 19(13)(A) of the RDDB & FI Act have not been complied with.
Accordingly, we set aside the impugned order in Annexure-4 & direct the Petitioners to appear before the Tribunal on 23rd February, 2011. On their appearance, the Tribunal shall fix a date & give reasonable opportunity of being heard to all the Defendants & thereafter pass necessary orders afresh.
The Writ Petition is accordingly disposed of. Urgent certified copy of this order be granted on proper application.