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Judgment
S. Ravi Kumar, Chairperson
This Appeal is against Order dated 17.08.2017 of DRT-I, Ernakulam in OA 441/2013.
Brief facts leading to this Appeal are as follows:-
Respondent Bank filed Suit in OS No. 72/2006 before Sub-Judge, Kattappanna for recovery of Rs.6,22,793/- with interest and costs, and said Suit is decreed on 30.06.2010. Appellants herein preferred an Appeal against said Order in RFA No. 811/2011 before Hon’ble High Court of Kerala, and said Appeal is dismissed on 26.02.2015. Bank filed EP before Sub-Judge, Kattappanna, for recovery of Decree amount in EP 34/2011. But, Sub-judge dismissed said EP on the ground that it has no pecuniary jurisdiction, as EP amount crossed Rs.10 Lakhs, by relying on judgement of Hon’ble High Court of Kerala, granting liberty to Bank to approach DRT for execution. Bank filed Application under Section 31A of Recovery of Debts and Bankruptcy Act, 1993 [hereinafter referred to as RDB Act, 1993] before DRT and Tribunal below allowed said Application and ordered for issue of Recovery Certificate in terms of Decree dated 30.06.2010 in OS No. 72/2006 of Sub Court, Kattappanna; aggrieved by the same, present Appeal is preferred.
Advocate for Appellants mainly contended that the Order of Tribunal below is not legal as Section 31A of RDB Act, 1993, has no application to the case on hand. He further submitted that as per the definition of ‘debt’ under Section 2(g) of RDB Act, 1993, Decree would also fall within the definition of ‘debt’, therefore, Bank has to file an Application under Section 19 (1) of RDB Act, 1993, and hence, matter has to be remitted back to the Tribunal below to treat the Application under Section 19 (1) of RDB Act, 1993, and decide the same.
Advocate for Bank opposed said contention and submitted that, if the Application of Bank is to be treated as an Application under Section 19(1) of RDB Act, 1993, it would amount to setting the clock back and nullifying the Decree passed by Civil Court, which is confirmed by Hon’ble High Court of Kerala and became final. He further submitted, as the amount exceeded Rs.10 Lakhs by then, EP Court rightly directed Bank to approach DRT, and Tribunal below, by considering the issue with reference to the settled proposition of law, issued Recovery Certificate, and there is no illegality in the Order dated 17.08.2017.
First and foremost contention of Appellants is that Section 31A of RDB Act, 1993, which came into force by way of amendment with effect from 17.01.2000, has no application to the present case. He submitted, according to said provision, Decree passed by any Court prior to 17.01.2000, which have not been executed, then, Decree holder can apply to the Tribunal for Recovery Certificate. As Decree in this case is long after the amendment, Tribunal cannot issue a Recovery Certificate.
On the other hand, it is the contention of Bank that in a similar set of facts, Hon’ble High Court of Kerala upheld Recovery Certificate issued by Tribunal, and relying on that judgement, Tribunal below ordered Recovery Certificate.
I have perused the impugned Order. In para 9, Tribunal below, while referring to the judgement of Hon’ble High Court of Kerala in V.D. Mathew Vs. State Bank of Travancore, reported in (2008) 3 KLT 30, held that, Bank is entitled for issue of Recovery Certificate. I have perused the judgement of Hon’ble High Court of Kerala. In that case, the Decree was passed on 10.12.2004, which is subsequent to 17.01.2000, the day on which amendment came into force. When Bank approached the Tribunal for issue of Recovery Certificate, as the amount was beyond Rs.10 Lakhs, and Tribunal below issued Recovery Certificate, which is challenged before Hon’ble High Court, and Hon’ble High Court upheld the Order of Tribunal. So, the objection of Appellants cannot be accepted in view of the above referred judgement.
Other contention of Appellants is that, Bank has to file an Application under Section 19(1) of RDB Act, 1993, for recovery, since the definition of ‘debt’ includes the Decree. Advocate for Bank opposed said proposition contending, it amounts to putting the clock back.
It is not in dispute that Section 19(1) of RDB Act, 1993, is a remedy for Banks and Financial Institutions to file Application where the amount due was more than Rs.10 Lakhs, at that point of time, instead of filing a Civil Suit. In other words, an Application filed under Section 19 (1) of RDB Act, 1993, has to be decided after giving opportunity to Defendants for filing Written Statement and giving opportunity to parties to adduce evidence etc. But, in this case, that process is already over, and Civil Court Decree is challenged before Hon’ble High Court, which is confirmed, and ultimately, Decree has become final. Therefore, now the same cannot be opened, which amounts to nullifying the Civil Court Decree confirmed by Hon’ble High Court.
Advocate for Appellants contended, the interest claimed by Bank is contrary to the RBI Regulations, and Appellants are entitled for the benefit of the Scheme of 2008 as small farmers, and to support his arguments that the Appellants are entitled for benefit of the Scheme of 2008, he placed reliance on the judgement of Hon’ble High Court of Judicature at Madras in WP No. 27241/2017 and WMP No. 29093/2017 dated 11.01.2019. He relied on the judgement of Hon’ble Supreme Court in Corporation Bank Vs. D.S. Gowda & Anr., reported in (1994) 5 SSC 213, for the proposition that RBI guidelines have statutory force and they are to be followed.
According to Advocate for Bank, these two contentions were raised in Suit itself, but the Civil Court negatived both contentions, which are upheld by Hon’ble High Court, and now, it is not open to raise the very same issue in execution of that Decree. In fact, the decision of Hon’ble High Court of Madras is long after Civil Court Decree and long after the judgement of Hon’ble High Court which upheld the Civil Court Decree. Now relying on this, Appellants cannot be permitted to take the very same plea which has become final.
Very same contentions are raised before Tribunal below. Learned Presiding Officer, by referring to the judgement of Hon’ble Supreme Court, for the principle that executing court cannot go beyond the Decree, overruled both these contentions. I do not find any wrong in the approach of the Tribunal below and it rightly rejected the contentions.
It is not in dispute that Decree is passed against Appellants and the same has become final. Now, that Decree is to be executed. When Bank approached the very same Civil Court for execution, it refused on the ground that EP amount is beyond Rs.10 Lakhs by then, and as per the judgement of Hon’ble High Court of Kerala, it cannot entertain. Thereafter, Bank approached DRT for issue of Recovery Certificate. According to Appellants, DRT cannot issue Recovery Certificate in view of the fact that Section 31A of RDB Act, 1993, has no application for a Decree passed after 17.01.2000. As already referred to above, that issue is clarified by Hon’ble High Court of Kerala; in my view, the Recovery Certificate issued by Tribunal below is definitely legal as it has got power under Section 19 (25) of RDB Act, 1993. It may be relevant to refer to said provision, which is as follows:-
“[19. Application to the Tribunal.—(1)………
(2)……………
………………
……………..
(25) The Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.]”
Under the above provision, Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. Here, in my view, to secure the ends of justice, issuing Recovery Certificate is the only way in view of judgement of Hon’ble High Court of Kerala, which is binding both on Civil Court and DRT, Ernakulam.
For these reasons, I am of the considered view that Tribunal below is perfectly justified in allowing the Application and granting Recovery Certificate and there are absolutely no grounds to interfere with said Order.
In view of my foregoing observations and findings, it is held that the Appeal is devoid of merits and liable to be dismissed.
In the result; the Appeal RA 42/2018 is dismissed. Both parties shall bear their own costs. All pending IAs, if any stand closed.