TaxTMI 
TaxTMI 
2015 (4) TMI 921
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....987 was filed by the appellant-Bank before the High Court of Judicature at Bombay against the respondent on 07.09.1987 for recovery of Rs. 69,50,213.59 with interest @ 18.5% p.a. with quarterly rests and enforcement of the mortgage. The High Court vide its order dated 09.12.1996 passed a consent decree in the Civil Suit for the suit amount together with concessional rate of interest at 12% p.a. which was to be paid by the respondent to the Bank on or before 31.05.1997. On 31.05.1997, the respondent tendered the amount in terms of the decree dated 09.12.1996, which was refused by the appellant. The respondent moved Chamber Summons No.1066 of 1997, inter alia, for recording the payment of decreetal amount tendered on 31.05.1997. On 01.08.1997, the respondent applied for ad interim relief in terms of the above Chamber Summons. However, by the order dated 01.08.1997, the High Court was pleased to decline to grant ad interim relief but adjourned the said Chamber Summons for recording evidence to establish the fact that the respondent had tendered the payment of the decreetal amount on or before 31.05.1997. Being aggrieved by the same, the respondent preferred Appeal No.960 of 1997 befor....
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....sc. Application (L) No. 34 of 2012 filed by the respondent and restored the Misc. application filed by him before the DRT-II, Mumbai to its file and directed it to decide the same on its own merits in accordance with law afresh in the light of the law declared by this Court and the High Court on the subject matter. 5. As the issue before us is with regard to the condonation of delay in filing the Misc. Application by the respondent and allowing the same in the writ petition filed by the respondent which is under challenge in this appeal at the instance of the appellant-Bank by urging various legal grounds, we will deal with this aspect of the case only, in this judgment. On 25.01.2012, the respondent filed Misc. Application (L) No.34 of 2012 before DRT-II, Mumbai for avoiding the sale and seeking rectification of Recovery Certificate and decree dated 9.12.1996, passed by the High Court. The filing of that Misc. application was delayed by 23 days. Therefore, the respondent filed Misc. Application No. 7 of 2012 for condonation of delay in filing the Misc. Application(L) No.34 of 2012 before the DRT-II, which application was dismissed by its order dated 22.02.2012, by declining to ....
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....t and Mr. Rafeeq P., the learned counsel appearing on behalf of the respondent, have made elaborate submissions in support of the respective claim and counter claim of the parties. 8. The learned Solicitor General has placed reliance upon Article 127 of the Schedule of Part I of the Limitation Act, 1963, in support of his contention that the period of 60 days is prescribed in Limitation Act, 1963 for filing Misc. application and a period of one year under Article 99 of the Schedule of Part IX of the said Act is stipulated for filing a suit from the date of sale of the property for setting aside the order of the sale of the mortgaged property. He submits that the provisions of the Limitation Act are applicable to the DRT proceedings as well, in view of the relevant provisions of Section 24 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short "the Act of 1993"). The learned Solicitor General has made submission that the orders of the DRT and DRAT in dismissing the condonation of delay application and consequently, the Miscellaneous application are erroneously set aside in the impugned judgment and order passed by the High Court as they are barred b....
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....ursuant to the decree passed by it in favour of the appellant-Bank. 9. Further, it is contended by the learned Solicitor General that the power conferred upon the High Court, under Article 227 of the Constitution of India is exercised by it even after the DRT was established permitting the Court Receiver of the High Court to conduct the sale of the property of respondent in public auction to recover the decreetal money in favour of the appellant-Bank in terms of the judgment and decree passed by it for the reason the DRT had no infrastructure to receive the possession of the property from Court Receiver and sell the same. Therefore, he has submitted that the High Court could not have found fault with its earlier order in permitting the Court Receiver to sell the mortgaged property in public auction to recover the decreetal amount by the Bank by way of sale of the mortgaged property. The learned Solicitor General has further contended that the mortgaged property sold by the Court Receiver in the public auction as per the order passed by the Bombay High Court, could not have been interfered with by the DRT-II and the DRAT on the Misc. application filed by the respondent along with....
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....een contended by the learned counsel on behalf of the respondent that the Court Receiver had no jurisdiction to sell the property by way of execution of the decree after the DRT has come into existence by placing the reliance upon the above case. It has been further contended by him that the suit proceedings of the Bank stood transferred automatically to the DRT by operation of law. Further, reliance was also placed by him on behalf of the respondent upon the case of Raghunath Rai Bareja & Anr. v. Punjab National Bank & Ors.(2007) 2 SCC 230 in support of his legal contention that in view of Section 31 of the DRT Act, the Court Receiver had no jurisdiction to sell the mortgaged property by way of execution of the decree in the public auction as directed by the High Court after the DRT was established by way of notification, pursuant to the DRT Act. Thus, even if the direction was given by the Bombay High Court to the Court Receiver, to execute the decree and sell the mortgaged property, he should not have executed the same in view of Section 31 of the DRT Act, as the execution proceedings were automatically transferred to the DRT. Therefore, the learned counsel on behalf of the resp....
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....elied upon the same which reads thus: "9. ......As the suits were filed by the Bank before establishment of the Tribunal and were pending in the civil court when the Tribunal came to be established under the Act, Section 31 became applicable to those suits and they shall have to be treated as transferred to the Tribunal on and from the date the Tribunal was established. Section 31 of the Act makes it clear that the transfer is automatic because of the operation of law and, therefore, the Bank was really not required to file applications. Those applications should have been really treated as applications for forwarding the records of the suits to the Tribunal...." (emphasis laid by this Court) Further, it would be relevant for us to extract the paragraph 7 from the case of Punjab National Bank, Dasuya v. Chajju Ram & Ors. (supra), wherein this Court has held as under:- "7. Learned counsel for the respondents submitted that the use of the words "cause of action" in Section 31 indicated that it is only pending suits which could be transferred. We are unable to agree with this submission. The words "cause of action" are preceded by the words "being a suit or proceeding". Se....
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.... down the law at paragraph 10, after referring to its earlier decision of a Four Judge Bench of this Court speaking through Venkatarama Ayyar, J. in Kiran Singh v. Chaman Paswan (1955) 1 SCR 117, which would be worthwhile to be extracted as under:- "10.......It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities." (emphasis laid by this Court) Further, vide paragraphs 16 and 17 in Sushil Kumar Mehta (supra), this Court held as under:- ....
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.... the Court decree, which action of the Court Receiver is void ab initio in law. Therefore, the order of the DRT and the DRAT, in dismissing the condonation of delay application by the respondent holding that the same is barred by limitation and consequently dismissing Misc. Application to set aside the sale is untenable in law and therefore, the High Court has rightly answered the legal contentions in favour of the respondent by giving valid and cogent reasons in the impugned judgment in exercise of its Judicial Review power. 16. The provisions of the Limitation Act are applicable to the proceedings of the DRT in view of Section 24 of the Act of 1993 and therefore, the provisions of Section 5 of the Limitation Act are applicable to the provisions of the said Act. The same has not been examined and considered by the DRT-II and the DRAT at the time of passing the impugned orders in the writ petitions. Therefore, the High Court has rightly exercised its discretionary power keeping in view the rights of the respondent upon the immovable property involved in this case and it has condoned the delay in filing Misc. Application and accordingly the orders of the DRT-II and the DRAT impug....