TaxTMI 
TaxTMI 
2019 (7) TMI 2004
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....arned counsel submits that the judgment was pronounced on 25.09.2018, however, the matter was listed before the learned Single Judge on 03.10.2018 for certain corrections and hence a copy of the judgment was received by the appellant only on 10.10.2018. The matter was then referred to the Department/legal affairs, MOLJ, for their opinion regarding filing of the appeal. The opinion was received on 08.11.2018 wherein, it was advised that the appeal be filed challenging the judgment. The advice was considered by the appellant. The appellant, however, was of the view that filing of the appeal would lead to unnecessary litigation as the respondent had demitted office on 24.05.2018. However, going by the advice of the Department of Legal Affairs, it was decided to file the appeal. The appellant then procured all the documents and on 07.02.2019, sent a letter to the Litigation Cell, Delhi High Court to appoint a Central Government Standing Counsel. The counsel was appointed on the same day. The respondent then, in fact, filed a writ petition before the Hon'ble Supreme Court praying for continuing his term at the DRT, which was disposed of on 22.02.2019. Thereafter, a number of meetings to....
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....mains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limit....
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....ed by the respondent stands allowed. The respondent/writ petitioner had sought a writ for certiorari seeking quashing and setting aside the impugned Memorandum of Article of charges dated 28.03.2018 alongwith its annexures and all subsequent proceedings emanating therefrom. A direction was also sought to quash and set aside the order dated 17.04.2018 and all subsequent proceedings emanating therefrom. By a detailed judgment, the writ petition stands allowed. Before we consider the rival submissions made by learned counsels for the parties, we deem it appropriate to set out the facts which had given rise to the filing of the writ petition which has been noticed by the learned Single Judge. The facts contained in the judgment dated 25.09.2018 read as under : 15. The petitioner (respondent herein) was appointed as Presiding Officer of the Debt Recovery Tribunal (hereinafter referred to as "DRT"), Chandigarh, on 15th December 2014. His tenure as Presiding Officer, came to an end on 24th May, 2018. 16. Less than two months prior to the expiry of his tenure, the petitioner was issued a charge-sheet dated 28th March, 2018. The charge sheet related to the order dated 15th July, 2016, pas....
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....its jurisdiction in allowing the writ petition and in quashing the charge-sheet. He further contends that the writ petition was premature and therefore, the same would not give any cause of action in favour of the respondent, especially, in view of the fact that mere issuance of a charge-sheet would not affect the rights of the respondent. Counsel further submits that there were justifiable reasons for the department, who have issued the charge-sheet. Mr. Soni has contended that the respondent, who was the Presiding Officer at the relevant time, could not have granted his approval to the settlement arrived at between the borrower and the bank for the reason that the amount of settlement was extremely meagre and the DRAT rightly took suo moto action based on a complaint made by an advocate in the matter and set aside the order of the Presiding Officer. 19. Mr. Soni further submits that the proper procedure would be that post the charge-sheet having been filed, the inquiry should be conducted and in case, the respondent has any grievance, he would then be entitled to safeguard his interest and protect his rights. Mr. Soni has relied on a decision passed by Supreme Court in the case ....
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....its that even a consistent stand has been taken that there was no impropriety on their part to have arrived at an amicable settlement with the borrower. Mr. Bhandari also contends that even before the Chairman, DRAT, the consistent stand of the bank has been noticed in the order. The affidavits placed before the Chairman, DRAT also supported the settlement. Additionally, the DRAT itself has given a complete clean-chit to the respondent by observing that he did not smell a rat in the proceedings before the Presiding Officer while passing the order on 15.07.2016. It is contended by Mr. Bhandari that it is not an absolute rule that a charge-sheet cannot be quashed of course for a special reason and inappropriate cause. It is contended by the respondent that since the settlement had been arrived at between the borrower and the bank without the Presiding Officer having any role to play. The proceedings initiated against him would fall under the rare case where the High Court under Article 226 of the Constitution of India would exercise its jurisdiction, which the learned Single Judge did and there is no infirmity in the same. 21. We have heard learned counsels for the parties and with ....
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....oned the OTS dated 25.11.2014 for Rs.20 lakhs which amount was to be deposited by Mr. Balkar Singh. Mr. Balkar Singh deposited the settlement amount within the prescribed period. 17. I say that the bank's recovery policy has been duly followed in sanctioning the OTS. The Circle Office of the bank, also accorded its approval to the OTS dated 25.11.2014. 18. I say that while arriving at the aforesaid settlement, no portion of the principal amount has been waived. The entire principal amount disbursed by New Bank of India under the loan facilities stands recovered. The bank, however, sacrificed interest as awarded under the decrees/recovery certificates as it felt that the aforesaid property will not ever be successfully auctioned. 19. I say that the OTS dated 25.11.2014 is valid and in accordance with law. The bank stands by the OTS dated 25.11.2014. 20. I say that the learned Tribunal has rightly closed recovery cases in R.C.No.118/2012 and 266/2006 respectively. 21. I say that the affidavit dated 07.12.2016 of Mr. Balbir Singh, Senior Manager contains correct depositions, which I reiterate and reaffirm to be true." 24. A reading of this affidavit would show that the fina....
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.... 28.08.2014 and on both days, the auction failed for want of bids. The affidavit also discloses that probably the aforesaid property stands sold to one Shri Balkar Singh, who tendered the compromise proposal, which was accepted. Paras 18, 19, 20 and 21 read as under: "18. I say that the bank's recovery policy has been duly followed in sanctioning the OTS. The Circle Office of the bank, also accorded its approval to the OTS dated 25.11.2014. 19. I say that while arriving at the aforesaid settlement, no portion of the principal amount has been waived. The entire principal amount disbursed by New Bank of India under the loan facilities stands recovered. The bank, however, sacrificed interest as awarded under the decrees/recovery certificates as it felt that the aforesaid property will not ever be successfully auctioned. 20. I say that the OTS dated 25.11.2014 is valid and in accordance with law. The bank stands by the OTS dated 25.11.2014. 21. I say that the learned Tribunal has rightly closed recovery cases in R.C.No.118/2012 and 266/2006 respectively." 25. In the suo moto proceedings initiated by the Chairman, DRAT, the following observations are relevant: "........it is,....
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....of 1993 has, in Paras 33 to 38, held as under: "33. Section 19 of the RDB Act, occurring in Chapter IV of the Act, deals with procedure of tribunals. Subsection (25) of Section 19 reads as follows: "19. (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." The aforesaid provision makes it quite clear that the Tribunal has been given power under the statute to pass such other orders and give such directions to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. Thus, the Tribunal is required to function within the statutory parameters. The Tribunal does not have any inherent powers and it is limpid that Section 19(25) confers limited powers. 34. In this context, we may refer to a three-Judge Bench decision in Upper Doab Sugar Mills Ltd. v. Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. [AIR 1963 SC 217] wherein it has been held that when the tribunal has not been conferred with the jurisdiction to direct for refund, it cannot do so. The said principle has been followed in Union of India v....
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....n and give priority to the real controversy before it arising out of the special legislations. As has been stated earlier, it is really free from the shackles of procedural law and only guided by fair play and principles of natural justice and the regulations formed by it. The procedure of tribunals has been elaborately stated in Section 19 of the RDB Act. 37. It is apt to note here that Section 34 of the SARFAESI Act bars the jurisdiction of the civil court. It reads as follows: "34.Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)." 38. Section 34 of the RDB Act provides that the said Act would have overriding effect. We have referred to the aforesaid provisions to singularly highlight that the sacrosanct purpose with which t....
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....ot the function of the DRAT. .....The DRAT is no one to decide as to at what value the bank should settle its dues with the borrower especially when the bank has Managers who have acted in pursuance to authorization in their favour and after due consideration of the proposal of the petitioners. We have no hesitation in stating that both orders of the DRT dated 1.6.2009 and of the DRAT dated 22.12.2009 are completely erroneous in law and suffer from a fallacious approach on the part of the concerned authorities/tribunals and are consequently quashed. The application filed by the bank being IA No.06/2007 is consequently allowed. The petitioners would, thus, be struck off from the array of parties. The petition is accordingly allowed leaving the parties to bear their own costs. A copy of the order be sent to both the concerned officers of the DRT and DRAT. CM No.5166/2010 In view of the disposal of the writ petition, the application does not survive for consideration and same also stands disposed of." 28. The same observations were made subsequently by another Division Bench in the case of Harpreet Kaur and another Vs. M/s Fullerton India Credit company Ltd., (2018) 24....
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....aid that judicial scrutiny of an order imposing premature compulsory retirement is permissible if the order is arbitrary or mala fide or based on no evidence. Again in the case of Madan Mohan Choudhary [(1999) 3 SCC 396 : 1999 SCC (L&S) 700] which was also a case of compulsory retirement this Court said that there should exist material on record to reasonably form an opinion that compulsory retirement of the officer was in public interest. In K.N. Ramamurthy case [(1997) 7 SCC 101 : 1997 SCC (L&S) 1749] it was certainly a case of culpable negligence. One of the charges was that the officer had failed to safeguard government revenue. In Hindustan Steel Ltd. case [(1969) 2 SCC 627 : AIR 1970 SC 253] it was said that where proceedings are quasi-judicial penalty will not ordinarily be imposed unless the party charged had acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. This Court has said that the penalty will not also be imposed merely because it is lawful so to do. In the present case, it is not that the appellant did not impose penalty because of any negligence on his part but he said it was n....
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...., the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned chargesheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings." (Emphasis supplied) 32. After Nagarkar (supra), a similar controversy arose before the Supreme Court in the case of Union of India Vs. Duli Chand, (2006) 5 SCC 680, which overruled Nagarkar (supra), by placing reliance on Union of India Vs. K.K. Dhawan, (1993) 2 SCC 56. 33. Learned Single Judge has taken note of su....
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....ke steps to protect honest judicial officers by ignoring ill-conceived or motivated complaints made by unscrupulous lawyers and litigants. 14. In K.P. Tiwari v. State of M.P., 1994 Supp (1) SCC 540, where the High Court reversed the order passed by the lower court making remarks about interestedness and motive of the lower court in passing the unmerited order, this Court observed that one of the functions of the higher court is either to modify or set aside erroneous orders passed by the lower courts. Our legal system acknowledges fallibility of judges. It has to be kept in mind that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure- contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher court. Every error, however gross it may be, should not be attributed to improper motives. The Judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of faith in the subordi....
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....has held that in the present case, there were no allegations of corrupt motive or malafides and the charge-sheet has been quashed. We find that there is no infirmity in the judgment of the learned Single Judge quashing the charge sheet in view of the fact that no allegations of corruption or malafides have been imputed. The case of the respondent is clearly covered by the judgments of the Apex Court and the Division Bench referred to above and which were relied upon by the learned Single Judge to come to a conclusion that it did. It would be useful to refer to Section 19 (22), 26 and 33 of the Recovery of Debt Due on Banks and Financial Institutions Act, 1993, which read as under : "19. Application to the Tribunal. - (22) The Presiding Officer shall issue a certificate under his signature on the basis of the order of the Tribunal to the Recovery Officer for recovery of the amount of debt specified in the certificate." "26. Validity of certificate an amendment thereof. - (1) It shall not be open to the defendant to dispute before the Recovery Officer the correctness of the amount specified in the certificate, and no objection to the certificate on any other ground shall al....