Allowed

M/S Leo Suzind Fisheries Ltd., and Ors. v. State Bank of India

Bombay HC25 Jan 2012WP/1166/2011

Case brief

AI extract

What is this about?

The High Court in a writ petition quashed the DEBT Recovery Appellate Tribunal order dismissing an application to file a counter claim. The Court allowed the petitioner to deposit court fees, imposed costs, and kept the limitation issue open, holding that Tribunals are not bound by strict CPC rules.

What did the court decide?

Impugned order quashed; petitioner granted two weeks to deposit court fees; counter claim taken on record upon payment; limitation issue kept open.

M/S Leo Suzind Fisheries Ltd., and Ors. Vs State… — Execution and Attachment | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 1166 OF 2011

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M/s. Leo Suzind Fisheries Ltd.

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..Petitioner.

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Vs.

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State Bank of India. ..Respondent.

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Mr. Yashodhan Divekar with Ms. Radhika Singh i/by M/s.Divekar &Co. for the Petitioner.

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Mr.V.V.Sawant i/by K.Kaushik for the Respondent No.1.

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CORAM : DR. D.Y. CHANDRACHUD & SHRI. M.S. SANKLECHA, JJ.

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DATE : 25 JANUARY 2012

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PC:

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Rule.

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2 Rule returnable forthwith by consent of the parties.

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3 The respondent filed a suit against the petitioner for the recovery of dues before the Court of the Civil Judge at Goa. The suit was transferred to the Debt Recovery Tribunal at Mumbai in 2000. The respondent filed its written statement in April 1997. The petitioner had filed an application for amendment of the written statement and for making a counter claim for damages. It appears that when the ship was

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in possession of the Receiver the ship sank on 1 August 1997. The counter claim arose out of that circumstance. The application for amendment filed by the petitioner was partly allowed by the Tribunal on 3 May 2002 and the petitioner was allowed to carry out the amendment set out in Paragraph 15 of the application. The remaining amendments in Paragraph 13, additional Paragraph 16A to I and for the introduction of the counter claim was rejected. The petitioner filed an appeal before the Debts Appellate Recovery Tribunal. The Debts Recovery Appellate Tribunal by its order dated 26 January 2003, granted permission to the petitioner to file a counter claim subject to payment of court fees within a period of two weeks. The petitioner did not pay the court fees within that period. In February 2010, the petitioner stated that it had made arrangement for payment of court fees and filed an application, Exhibit 93, before the Tribunal for permission to file a counter claim together with court fees. The application was dismissed by the Tribunal on 16 June 2010. By the impugned order the Debt Recovery Appellate Tribunal has confirmed the order of the Tribunal.

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4 Learned counsel appearing on behalf of the petitioner submits that the application for filing the counter claim was allowed by the Debt Recovery Appellate Tribunal by its order dated 26 January 2003. However, the petitioner was not in a position to pay the court fees of Rs.1,50,000/-, in view of its financial difficulties which arose out of the fact that the vessel which was in the possession of the Receiver sank in August 2007.The original application before the Tribunal remained pending all these years and was pending when the application was filed

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in February 2010 for permission to deposit the court fees. Learned Counsel submitted that no prejudice will be caused to the respondent if the petitioner is permitted to deposit the court fees.

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5 On the other hand, it is urged on behalf of the Respondent that the application which was filed before the Tribunal was misconceived. The Appellate Tribunal has passed an order on 26 January 2003. The petitioner was allowed to file a counter claim subject to payment of court fees within two weeks. Hence, it was urged that an application for extension of time to effect payment of court fees ought to have been made before the Debts Recovery Appellate Tribunal and not before the Tribunal. Moreover, it was urged that the subject matter of the counter claim relates to the sinking of the vessel in the month of August 2007 which was after the written statement had been filed and therefore, the counter claim is not maintainable under Order 6 rule 6 of the Code of Civil Procedure.

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6 In the present case, it is an admitted position that the prayer for raising a counter claim was allowed by the Debts Appellate Recovery Tribunal by its order dated 26 January 2003. However, the petitioner was granted two weeks’ time to deposit court fees. The petitioner had submitted that it was due to its financial condition which arose out of the sinking of the vessel that the petitioner was unable to pay the court fees of Rs.1,50,000/-. The counter claim which is sought to be asserted is to the tune of Rs.71.00 Crores which is alleged to be the damage caused to the petitioner due to the sinking of the vessel

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which was in the possession of the Receiver. In our view, the Tribunal has adopted an unduly technical approach in the matter. The petitioner ought to have been granted an extension for time for payment of court fees subject to the question of limitation being kept open. The Tribunal and the Appellate Tribunal are not bound by strict rules of procedure. Section 22 of the Act specifies that the Tribunal and the Appellate Tribunal shall not bound by the provisions of the Code of Civil Procedure but shall be guided by the principles of natural justice. No prejudice will be caused to the respondent if permission is granted to the petitioner to deposit the court fees. The original application has remained pending until date. Suitable costs can in the interests of justice be awarded to the respondent.

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7 In the circumstances, we allow the petition by quashing and setting aside the impugned order of the Debts Recovery Appellate Tribunal dated 14 October 2010 .The petitioner shall have a period of two weeks from today to deposit the court fees on the counter claim. Upon deposit of the court fees the counter claim shall be taken on record. The petitioner shall pay costs to the respondent quantified at Rs. 15,000/- within two weeks which shall be a condition precedent. In the event the petitioner fails to do so, it shall lose the benefit of the aforesaid directions contained in the order. The issue of limitation in respect of the counter claim is however, kept open to be urged before and to be decided by the Debts Recovery Tribunal.

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8 The petition is disposed of. No costs.

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( DR.D.Y. CHANDRACHUD, J )

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( SHRI. M.S. SANKLECHA, J. )

M/S Leo Suzind Fisheries Ltd., and Ors. v. State Bank of India

Case brief

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What did the court decide?

M/S Leo Suzind Fisheries Ltd., and Ors. v. State Bank of India

Case brief

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