Saket Promoters Limited vs Canara Bank

Anil Kumar Srivastava, Chairperson

THE APPELLATE TRIBUNAL :

Instant has arisen against an order dated 28th April, 2022 passed by Learned DRT-1, Kolkata in O.A. 208 of 2021, I.A. 782 of 2022 and I.A. 2662 of 2021 (Canara Bank -vs- Saket Promoters Limited) whereby the I.A. 782 of 2022 was a put up application which was disposed of. I.A. 2662 of 2021 was rejected as being not maintainable.

Feeling aggrieved Defendants/Appellants have preferred the instant appeal.

It appears from the record that on 14th September, 2021, Respondent Canara Bank filed an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 before the Learned DRT-1, Kolkata which was registered as O.A. 208 of 2021. As per the Appellants, on 1st December, 2021, Appellants, as Respondents in the O.A., received a postal packet through speed post wherein registry fee of Rs.17.70p was paid wherein only summons were received. Appellants were directed to file written statement and to appear before the Registrar on 7th December, 2021. No copy of O.A. 208 of 2021 was ever served upon the Appellants. Appellants moved an application on 27th December, 2021 stating that they have not received copy of the O.A. which is in contravention of Rule 11 of the Debt Recovery Tribunal Rules; accordingly, application should be dismissed for default. Learned DRT dismissed the I.A. as not maintainable.

I have heard the Learned Counsel for Appellants as well as the Respondents and have perused the record.

Learned Counsel for the Appellants submits that Rule 11 of DRT Procedure Rules, 1993 provides that copy of application and paper book shall be served on each of the Respondents as soon as they are filed by registered post. Learned Counsel submits that it is a mandatory provision; non-compliance of the provision entitled the Appellants for dismissal of the O.A. Learned Counsel further submits that as per Section 22 Sub Section (1) and (2) the provisions of CPC would be applicable to an extent as provided under Section 22 (2)(f) wherein a power has been conferred upon DRT for dismissing an application for default. It is further submitted that Order VII Rule 11(a) CPC provides for rejection of the plaint if the plaint did not disclose the cause of action. Further reliance is placed upon order VII Rule 11(f) CPC. It is submitted that since copy of the O.A. was not served upon the Appellants, O.A. is liable to be rejected.

Learned Counsel for Respondent submits that vide order dated16th November, 2021, Learned DRT passed an order to issue notices to Respondents No. 1 to 4. Further they were directed to file written statement within four weeks from the date of receipt of the O.A. Thereafter, admittedly, summons were issued which were received by the Respondents. Copy of the O.A. and Affidavit of Evidence were served upon the Appellants on 16th February, 2022. Hence, there is complete compliance of the legal provisions. Learned DRT had also observed in the order dated 25th February, 2022 that the Affidavit-of-service is filed and copy of the O.A. has been served upon the Appellant Company at its registered office on 17th February, 2022. It is also mentioned that Learned Counsel for Defendants undertakes to file MOA in course of the day and undertakes to file Vakalatnama within seven days.

Rule 11 of the DRT Procedure Rules, 1993 provides that “A copy of the application and paper book shall be served on each of the Respondents as soon as they are filed by registered post.”

Section 19 (4) Recovery of Debts Due to Banks and Financial Institutions Act, 1993 provides that “On receipt of application under Sub Section (1) or (2) the Tribunal shall issue summons with the following directions to the defendant x x x x x” It clearly shows that that it is the duty of the Tribunal to issue summons to the Defendants. No doubt the copy of the O.A. and paper book should also be served upon the Defendants which was duly served on 16th February, 2022.

Learned Counsel for the Appellants submits that when the I.A. was moved prior to the service of the copy of the O.A. then an irrevocable right had accrued in favour of the Appellants which has been taken away by subsequent service of the copy of the O.A. upon the Appellants. Submission made by Learned could not be accepted. Rule 11 is directory in nature which provides that the copy of application and paper book shall be served upon each of the Respondents as soon as they are filed by registered post it is because of the fact that unless and until copy of the O.A. and paper book is not served upon the Defendants they would not be in a position to file written statement. No doubt, I.A. was moved on 25th December, 2021. But in the I.A. the only prayer is regarding violation of Rule 11 of DRT Procedure Rules, 1993. There is no provision under the DRT Procedure Rules that non-compliance or delayed compliance of Rule 11 would result in the dismissal of the original application. Principles of natural justice have to be followed in the proceedings. One of the basic principles is that opportunity of hearing should be given to the parties. It is, keeping in view this principle, Legislature enacted Rule 11. Copy of O.A. was served upon Appellants on 16th February, 2022 which was in compliance of the Rule. I do not find any reason to dismiss the O.A. for violation of Rule 11 of DRT Procedure Rule or Order VII Rule 11 CPC.

Section 22 Sub Section (1) and (2) would also not be attracted in this case as the power to dismiss an application for default or to decide it ex parte vests with the DRT but it is to be looked into as to whether the power has been exercised in accordance with law or not.

I do not find any reason or ground to interfere with the impugned order. Appeal lacks merit and is liable to be dismissed.

ORDER

The instant appeal, being Diary No. 229 of 2022, is dismissed.

Order dated 28th April, 2022 passed by Learned DRT-1, Kolkata in O.A.208 of 2021 is hereby affirmed.

No order as to costs.

Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

File be consigned to Record room.

Copy of the Judgment/Final Order be uploaded in the Tribunal’s Website.

Order pronounced by me in the open Court on this the 7th day of July, 2022.