Smt. Rekha Kushwaha vs Presiding Officer, Debts Recovery Tribunal, Dehradun and others

Sharad Kumar Sharma, J.

Petitioner has filed the present writ petition seeking the following reliefs:

“I. Issue a writ, order of direction in the nature of certiorari quashing the summons issued by the DRT, Dehradun in pursuance of T.A. No. 428 of

2018 (old OA No. 578 of 2015, DRT, Lucknow) filed by the bank, as the summons have been issued without application of mind.

II. Issue a writ order of direction in the nature of certiorari quashing the entire proceedings of the T.A No. 428 of 2018 (old OA No. 578 of 2015,

DRT, Lucknow).

III. Issue any other writ order or direction, which this Hon’ble Court may deem fit and proper in the circumstances of the case.

IV. Award the cost of the writ petition in favour of the petitioner.â€​

The precise submission of the learned counsel for the petitioner has been pleaded in paragraph no. 15 of the writ petition. The same reads as

follows:

“15. That now at this juncture a simple question is being raised whether a single OA can be moved by the bank for claiming the amount entered in

their Saving Account from different customers and admittedly as per the provisions of the Act No. 51 of 1993, single application against different

customers for different amount cannot be moved and therefore this single original application is not maintainable in the eyes of law.â€​

 3. In the aforesaid paragraph, which has been quoted hereinabove, the petitioner has averred that the proceedings before the Debts Recovery

Tribunal, as against the amount deposited in her Savings Bank Account would not be maintainable, as it would be only the subject matter of the cash

having been deposited in his Savings Bank Account.

Apparently, this is an issue, which is yet to be gone into by the Debts Recovery Tribunal, which has issued notice to the petitioner for putting in

appearance. Once, Debts Recovery Tribunal takes recourse to the proceedings under Section 19 of the Recovery of Debts Due to Banks and

Financial Institutions Act, 1993 and issues notices to the borrower or any other such person, who is said to be involved in the financial transactions,

which has been sought to be recovered, it is absolutely the Debts Recovery Tribunal, which has got the machinery available with it to go into the

propriety of the transactions in relation to the loan/debt. By virtue of the notice, which is impugned in this writ petition, the Debts Recovery Tribunal

has simply called upon the petitioner to put in appearance and to place its defense in response to the notice issued to her. This notice, in itself, will not

give any cause of action to the petitioner nor it is prejudicing her interest, rather it is calling upon her to place her defense and to contest the

proceedings on merits.

Considering the said aspect, this Court is of view that, as against a notice issued by a forum created under the Statute, no writ petition would lie

under Article 227 of the Constitution of India unless the remedies are exhausted because the forum available to the petitioner is to approach before the

Debts Recovery Tribunal itself and to raise its defense including the defense with regard to the maintainability of the proceedings, wherein the amount

deposited in his Savings Bank Account has been sought to be brought within the ambit of Section 19 Â of the Recovery of Debts Due to Banks and

Financial Institutions Act, 1993.

At this stage, the only prayer, which the petitioner is seeking, is that she may be given liberty to raise the preliminary objection with regard to the

maintainability of the proceedings and if she does so, the Debts Recovery Tribunal, would decide the issue of jurisdiction/maintainability first, before

adjudicating other issues on merits.

The liberty, as sought for by the petitioner, is granted. Accordingly, it is left open for the petitioner that, after putting in appearance, she may raise

her preliminary objection and once she raises the issue with regard to the maintainability of the proceedings, the same would be decided first and then

only the matter would be adjudicated on merits.

Subject to the aforesaid observation, this writ petition would stand dismissed. There will be no order as to cost.

Let certified copy of this order be issued within 24 hours.