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2020 (1) TMI 1173
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....e Policy was obtained by these parties from ICICI Lombard General Insurance Company under which the Insurance Company agreed to indemnify the respondent and the appellant in the event of default in payment of foreign buyers. (iii) The appellant had lodged a claim with the said Insurance Company which, however, was repudiated on 03.03.2011. In this background, on 13.03.2012, the appellant filed an application under Section 19 of the RDB Act being O.A. No. 43 of 2012 before the DRT, Mumbai for recovery of a sum of Rs. 191,03,54,070.96. (iv) An I.A was then filed by the respondent before the DRT Mumbai, challenging its jurisdiction, which was ultimately disposed of on 26.09.2013 and an appeal therefrom was dismissed on 03.02.2017, holding that the DRT Mumbai did have territorial jurisdiction to go ahead with the case. (v) At this point, an I.A was filed by the appellant stating that given the admissions contained in the balance sheet of the relevant years of the respondent-Company, a sum of Rs. 222,51,00,000/- was owed by the respondent to the appellant. This I.A. was allowed by the DRT Mumbai on 26.10.2017. (vi) An appeal was filed by the responden....
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....nd would therefore not be an application which could be said to be independent of Section 19 of the RDB Act. This being the case, the High Court set aside the judgment of the DRT, condoned the delay in filing of the review application itself, and restored the review application to the file. 3) Mr. Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the appellant, has contended that the High Court is wrong on all counts. First and foremost, the High Court could not have looked at Order XLVII Rule 7 of the CPC in order to hold that an appeal from an order dismissing a review petition would not be maintainable before the DRAT both for the reason that Order 47 Rule 7 itself is inapplicable under Section 22(1) of the RDB Act and for the reason that Section 20 of the RDB Act makes it clear that appeals lie to the DRAT from all applications that may have been disposed of by the Tribunal under the RDB Act. He further argued that the judgment in International Asset Reconstruction Company of India Limited (supra) ought to have been applied correctly in that the ratio decidendi of the judgment made it clear that it is only applications under Section 19 that are referred to i....
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....at had the recovery officer been held to be a tribunal, the matter would have to be completely differently viewed. It was his case, therefore, that this judgment is wholly distinguishable. He also supported the impugned judgment on maintainability of the Writ Petition. 5) Having heard learned counsel for both sides, it is necessary to set out some of the provisions of the RDB Act and the Rules made thereunder. Section 2(b) of the RDB Act states as follows: "2. Definitions.- (b) "application" means an application made to a Tribunal under section 19;" Section 19 of the RDB Act states as follows: "19. Application to the Tribunal. - (1) Where a bank or a financial institution has to recover any debt from any person, it may make an application to the Tribunal within the local limits of whose jurisdiction- (a) the branch or any other office of the bank or financial institution is maintaining an account in which debt claimed is outstanding, for the time being; or (aa) the defendant, or each of the defendants where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business, or perso....
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....l thinks fit; and (e) appoint a Commissioner for preparation of an inventory of the properties of the defendant or for the sale thereof." Sections 20, 21 and 22 of the RDB Act state as follows: "20. Appeal to the Appellate Tribunal. - (1) Save as provided in sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter. xxx xxx xxx (3) Every appeal under sub-section (1) shall be filed within a period of thirty days the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. 21. Deposit of amount of debt due, on filing appeal. - Where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortiu....
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....ction 30(1) of the Act" Rule 4(1) of the Rules states as follows: "4. Procedure for filing applications (1) An application under section 19 or section 31A, or under section 30(1) of the Act may be presented as nearly as possible in Form I, Form II and Form III respectively annexed to these rules by the applicant in person or by his agent or by a duly authorised legal practitioner to the Registrar of the Bench within whose jurisdiction his case falls or shall be sent by registered post addressed to the Registrar." Rule 5A of the Rules states as follows: "5A.Review.- (1)Any party considering itself aggrieved by an order made by the Tribunal on account of some mistake or error apparent on the face of the record desires to obtain a review of the order made against him, may apply for a review of the order to the Tribunal which had made the order. (2)No application for review shall be made after the expiry of a period of thirty days from the date of the order and no such application shall be entertained unless it is accompanied by an affidavit verifying the application. (3) Where it appears to the Tribunal that there is no su....
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.... (i) less than Rs. 10 lakhs Rs. 20,000 (ii) Rs. 10 lakh or more but less than Rs. 30 lakhs Rs. 30,000 (iii) Rs. 30 lakhs or more 6. Vakalatnama Rs. 5" 6) A reading of the aforesaid provisions of the Act and Rules would show that review petitions are dealt with in Section 22(2)(e) read with Rule 5A of the Rules. Section 24, which applies the provisions of the Limitation Act to applications made to a Tribunal, would, as per the definition section contained in Section 2(b), apply only to applications that are made under Section 19, which are original applications to recover debts that are made by banks and financial institutions. What is clear is that an application for review cannot possibly be said to be an application filed under Section 19 even on a cursory reading of the provisions of the Act, as it traces its origin to Section 22(2)(e) read with Rule 5A of the Rules. 7) As a matter of fact, applications that are made to the Tribunal under Section 19 of the Act are only made in order to recover a debt from any person. Even Section 19(2), which is strongly relied upon by Shri Dave, makes it clear that another bank or financi....
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....period of 30 days under Section 30(1) of the RDB Act. The Court first stated, in paragraph 8, that the RDB Act is undoubtedly a special law and a complete code by itself with regard to expeditious recovery of dues to banks and financial institutions. After then noticing Section 22(1) in paragraph 9 and stating that Section 5 of the Limitation Act cannot proprio vigore apply to a tribunal as a tribunal is not a Court (in paragraph 10), the Court went on to hold: "11. An "application" is defined under Section 2(b) of the RDB Act as one made under Section 19 of the Act. The latter provision in Chapter IV deals with institution of original recovery proceedings before a Tribunal. An appeal lies against the order of the Tribunal under Section 20 before the Appellate Tribunal within 45 days, which may be condoned for sufficient cause under the proviso to Section 20(3) of the Act. The Tribunal issues a recovery certificate under Section 19(22) to the Recovery officer who then proceeds under Chapter V for recovery of the certificate amount in the manner prescribed. A person aggrieved by an order of the Recovery officer can prefer an appeal before the Tribunal under Rule 4, by an ap....
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....Tribunal. The scheme of the Act manifestly provides that the legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The Appellate Tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recov- ery officer are not before a Tribunal. Section 24 is lim- ited in its application to proceedings before the Tri- bunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclu- sion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limita- tion Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act." 10) The judgment of this Court makes it plain, though in a slightly different context, that the only application that is referred to by Section 24 of the RD....
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....ng, review is permissible on the ground of an error apparent on the face of the record. A review proceeding cannot be equated with the original hearing of the case. 20.2. When the review will not be maintainable: (i) xxx (iii) Review proceedings cannot be equated with the original hearing of the case." 14) The peremptory language of Rule 5A would also make it clear that beyond 30 days there is no power to condone delay. We may also note that Rule 5A was added in 1997 with a longer period within which to file a review petition, namely, 60 days. This period was cut down, by amendment, with effect from 04.11.2016, to 30 days. From this two things are clear: one, whether in the original or unamended provision, there is no separate power to condone delay, as is contained in Section 20(3) of the Act; and second, that the period of 60 days was considered too long and cut down to 30 days thereby evincing an intention that review petitions, if they are to be filed, should be within a shorter period of limitation - otherwise they would not be maintainable. 15) We are also of the view that the High Court wrongly applied Order XLVII Rule 7 of the Code of Civil ....