Renu Devi Shastri vs Jammu and Kashmir Bank

Challenging the orders passed by the Debt Recovery Tribunal, Jabalpur on 22.7.2013 in Review Application No.24/2012 and another order dated dated 30.4.2010 Annexure P-2 passed in Second Appeal No.197/2009, this writ petition has been filed by the petitioner.

Petitioner claims to be married to respondent no.3. It is her grievance that respondent no.3 has committed fraud on her, he was already married and without disclosing these facts he mis-represented and married the petitioner. Thereafter fraudulently obtained blank signatures and executed an illegal deed transferring her property in his name on the pretext of obtaining loan. Thereafter he obtained loan from respondent no.1 Bank and when the amount of loan was not repayed, proceedings were initiated by the bank under section 13 and 14 of the Securitization and Reconstruction of the Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ''Act of 2002'' for short) and finally an order dated 6.3.2009 was passed by the Collector exercising jurisdiction under section 14 of the Act of 2002.

Challenging the aforesaid action an appeal was filed by the petitioner before the Debt Recovery Tribunal under section 17 of the Act of 2002 and the Debt Recovery Tribunal dismissed the same on 30.4.2010. Even though the Debt Recovery Tribunal dismissed the appeal on the ground that an appeal under section 17 was not maintainable against the order of Collector, it also went into certain aspects of the merits and rejected the contention on merits. Petitioner therefore approached this Court in W.P.No.7429/2010 and a Co-ordinate Bench of this Court on 8.10.2012 found that an appeal under section 17 of Act of 2002 was maintainable and for challenging the order under section 14 applying the law laid down by the Supreme Court in the case of United Bank of India Vs. Satyawati Tondon and Others, granted liberty to the petitioner either to file a fresh appeal before the Tribunal or to seek review of the order. The petitioner sought review and the review application having been dismissed, this writ petition has been filed.

Shri Atulanand Awasthy, learned counsel for petitioner raised two fold contentions. He argued that if the Debt Recovery Tribunal was of the view that an appeal under section 17 of the Act of 2002 was not maintainable, then it should have dismissed the appeal without going into the merits of the case. The Tribunal went into the merits and decided the question which is unsustainable. That apart the review was also dismissed without adverting to the ground as to whether an appeal is maintainable or not maintainable, but by holding that the finding on merit is a proper finding and it does not call for any review and there is no error apparent on the face of the record, Shri Awasthy submitted that the orders and the manner in which the tribunal proceeded in this case, is wholly unjustified and illegal.

The second contention was that as far as merit of the case, the learned Tribunal decided the matter without giving proper opportunity to the petitioner and finding in para 3 of the order 22.7.2013 has been recorded when the Advocates of the Tribunal were abstaining from work on account of the attitude of the Presiding Officer, in doing so the error has been committed. He accordingly submitted that the order passed by the Tribunal be interfered with.

Learned counsel appearing for respondents refuted the fact and argued that as a reasonable order has been passed, the same does not call for any consideration.

We have considered the rival contentions and we find that the Tribunal has committed a grave error in dealing with the matter. Apart from the fact that the finding of the Tribunal that appeal against an order of Collector under section 14 is issued in accordance to the law laid down by the Supreme Court in the case of United Bank of India (supra), the Tribunal went into the merits and decided the same. The Tribunal should have either heard the matter and then decided the matter on merits or in the alternate dismiss it on the ground of non- maintainability. The Tribunal could not have done both the things together. That apart when the matter is seen to have been decided without giving proper opportunity to the petitioner or his Advocate, therefore, it is a fit case where all the orders should be quashed and the appeal restored to its file and remanded back for decision afresh.

Accordingly, we allow this petition. The order dated 30.4.2010 passed in Second Appeal No.197/2009 and the order dated 22.7.2013 in Review Application No.24/2012 are quashed. The Second Appeal No.197/2009 is restored to its file and the Tribunal is directed to proceed with this appeal on merits after hearing all the concerned. That apart the Tribunal shall be at liberty to decide it on the ground of maintainability after considering the law laid down by the Supreme Court in the case of United Bank of India (supra). The petitioner shall appear before the Tribunal alongwith the certified copy of this order and file it in the Tribunal on or before 30th September, 2014 and the same having been done the Tribunal after hearing all the concerned shall decide the appeal on merits, in accordance with law.

With the aforesaid, this petition stands disposed of.

C.C., as per rules.