Dismissed

M/S. Durga Jewellers v. State Bank of India

DRAT27 Sept 2022MISC APPLICATION/95/2022

Case brief

AI extract

What is this about?

This Tribunal dismissed a miscellaneous application for transfer of recovery case RC 871/2019 from Jaipur to another Tribunal. The court found the appellant's allegations of bias and lack of natural justice vague, unsubstantiated, and insufficient to prove miscarriage of justice, noting the appellant's failure to file a statutory appeal.

What did the court decide?

Dismissal of application for transfer of RC 871/2019; file consigned to record room.

M/S. Durga Jewellers versus State Bank of India — Company and Corporate | DRAT (2022)

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DEBTS RECOVERY APPELLATE TRIBUNAL, DELHI

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Misc. Application No. 95/2022 In RC 871/2019

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Arising out of O.A. No. 734/2019 (DRT, Jaipur)

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M/S. Durga Jewellers Vs. State Bank of India

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27.09.2022 Hon‟ble Mr. Justice BrijeshSethi

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Present: Mr. Mohit Mishra, Power of Attorney Holder of appellant company.

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Order:-

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This matter has been taken up by me through Video Conferencing.

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Vide this order I shall dispose of Misc. application filed on behalf of the applicant seeking transfer of RC 871/2019 arising out of OA no. 734/2019 titled „SBI vs. M/s. Durga Jewellers‟ pending before Ld. Recovery Officer-I, DRT, Jaipur to any other Recovery Officer of any other Tribunal on the ground of flagrant violation of natural justice and statutory violation and irregularities occurred by the Recovery Officer-I, DRT, Jaipur as he is personally interested in the aforesaid matter.

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It is submitted that defendant bank has filed an original Application No. 734/2019 before the Ld. DRT which was allowed ex-parte vide order dated 12.09.2019 without the presence of the applicant and Recovery Certificate was issued as R.C No 871 of 2019.

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It is next submitted that thereafter the Ld. RO-I vide order dated 15.09.2022 passed another order in the absence of the applicant by defying the principles of natural justice. It is further submitted that the order dated 26.08.2022 clearly indicates that the same is biased and unreasonable.

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Page no. 1 of 9

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It is further submitted that the Ld Recovery Officer-I, DRT, Jaipur has passed the order in the absence of the applicant though the applicant had sent emails dated 15.09.2022 , 16.09.2022 but the name of POA (Power of Attorney holder) is not mentioned in cause list by registry of DRT Jaipur. It is submitted that Ld. counsel for the defendant Bank has also not supplied the documents to the applicant. The order passed by RO was not uploaded till 12.37 pm on 19.09.2022. The order was, thus, passed and documents were taken on record without supplying the copy of the same to the applicant.

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It is next submitted that as per the principle of natural justice “ Nemo Judix in Causa Sua that No one can be judge in his own case.” The Ld Recovery Officer-I is hearing the case in which proceeding for further action is pending before this Tribunal as per RTI communication dated 12.08.2022, CPIO DRAT Delhi sent by Ld. Registrar DRAT Delhi.

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It is further submitted that the Complaint regarding not mentioning of the name of the POA in the cause list dated 02.03.2022 and 03.03.2022 was sent to this Tribunal on 18.07.2022 with a prayer for enquiry and action, is pending before this Tribunal for further action and, thus, the order dated 15.09.2022 passed by Ld Recovery Officer is arbitrary and RC be transferred Ld. Recovery Officer-I, DRT, Jaipur to any other Recovery Officer of any other Tribunal.

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Notice of the application was issued to the respondent bank. Ld. counsel for the Respondent Bank has denied the allegations stating that these are contrary to and inconsistent with the record. It is submitted that Ld. RO-I, DRT, Jaipur is exercising the judicial powers in

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Page no. 2 of 9

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accordance with law. The applicant is trying to question the working of a Recovery Officer for his evil designs. The averments made by applicant are wrong and misleading. It is further stated that applicant's only intention is to delay the proceedings of the case. It is lastly submitted that applicant is using the present application as a tool to delay the proceedings of the present case. Ld. Counsel for the respondent has, therefore, submitted that the application of the applicant be dismissed with compensatory and exemplary costs.

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Heard. The Law with regard to transfer of cases is well settled. A case should be transferred if there is a reasonable apprehension on the part of party that justice will not be done. However, a mere allegation that there is apprehension that justice will not be done in a given case is not a ground for transfer of the case. The Court/ Tribunal has to see whether the apprehension is reasonable or not. The, power of transfer of a case from one Court to another has to be exercised with due care and caution in exceptional cases only. There has to be a real threat that there would be miscarriage of justice. The Hon’ble Gujrat High Court in case titled “ Rajkot Cancer Society Vs. Muncipal Corporation” AIR 1988 Guj 63, (1987) 2 GLR 981 dated 01.07.1987 , has held that transfer of the case from one court to another is a serious matter. There should be proper and sufficient cause for transfer of the case. The relevant portion of the order runs as under;

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“It must be borne in mind that transfer of a case from one Court to another is a pretty serious matter because it casts indirectly doubt on the integrity or competence of the Judge from whom the matter is transferred. This should not be done without a proper and sufficient cause.......Such a

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Page no. 3 of 9

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power of transfer of a case from one Court to another has to exercised with due care and caution bearing in mind that there should be no unnecessary, improper or unjustifiable stigma or slur on the Court from which the case is transferred.

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In Raghunandan Vs. G. H. Chawla, 1963 MPLJ (Notes) 117 , the Hon'ble High Court has held that;

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“..The onus of establishing sufficient grounds for transfer lay very heavily on the applicant. No account of imaginary suspicion or capricious belief could be permitted to be raised as ground of transfer.”

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In “Sudarshan Jain Vs. Deep Chand Jain And Ors. AIR 2006 MP 6 dated 04.04.2005” The Hon'ble Madhya Pradesh High Court opined that;

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“It is well settled in law, allegations regarding mala fide or bias are easy to make but difficult to prove. Making allegations against judicial officer is a serious affair..... This kind of petition is not to be given credence in the absence of proper proof as the same would bound to develop a tendency and a proclivity to file petitions with vague allegations and seek transfer of the case. That is neither the intendment nor the purpose of Section 24 of the CPC.”

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“14...If wild allegations are accepted and cases are transferred on the basis of nebulous pleadings, in my considered opinion, a dent is created in the mind of trial Judge and that would tantamount to failure of discharge of duty of the High Court. Such kind of wild allegations are not to be allowed to have free-play as if the freedom is totally free, bereft of any responsibility sans any accountability and shorn of any conscious and condign thinking”.

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In M.V. Ganesh Prasad Vs. M.L. Vasudevamurthy and Ors. AIR 2003 Kant 39 dated 19.04.2002 , the

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Page no. 4 of 9

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Hon'ble Karnataka High Court has held that;

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“ 42. It is the duty of this Court to frown upon frivolous, untenable and irresponsible allegations of bias and prejudice levelled against the Presiding Officers of the trial Court by disgruntled and chronic litigants, dissatisfied by the failure of their efforts in procuring favourable orders....... A disgruntled litigant cannot be allowed to use the provisions of Section 24 CPC as a weapon against the Presiding Officers and immobilise him when his ego is hurt. Applications of such nature should be dealt with appropriately by the higher Courts”.

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Let me now discuss the allegations leveled against Recovery Officer-I, DRT, Jaipur by the applicant. The applicant has alleged that RO-I, DRT, Jaipur is working in flagrant violation of the principles of natural justice. In the opinion of this Tribunal, the allegations made by the applicant are vague and not based on any cogent material on record. POA of the applicant has alleged that his name was not shown in the matter in question before Ld. Recovery officer. Ld. counsel for the respondent has, however, submitted that since name of the lawyers are only shown in the cause-list and not of POA and Mr. Mohit Mishra is POA holder, his name is, therefore, not shown in the cause-list. He further submitted that ordersheet dt. 26.08.2022 of Ld. RO reveals that Mr. Mohit Mishra, POA was present on the said date and in his presence, the next date was fixed. The Order of Ld. RO dt. 26.08.2022 is reproduced hereunder:-

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“ Debts Recovery Tribunal, Jaipur

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Office of the Recovery Officer

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Recovery Case No. 938/19

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SBI Vs. Hanuman Das Roshan Lal

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Recovery Case No. 870/19

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Page no. 5 of 9

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SBI Vs. Sahdev Brothers

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Recovery Case No. 871/19

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SBI Vs. Durga Jewelers

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26.08.2022: Shri Mohit Mishra, the POA Holder of the CDs appeared yesterday on 25.08.2022 at around 05 O’ Clock in the evening and prayed that he be given VC link for today’s hearing.

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Though physical hearing has already started at this Tribunal and this fact is well known to the POA holder but going by his acrimonious behavior and his complaining approach in the past, I allow him appearance through VC even at this short notice. He was allowed to choose the VC slot as per his convenience and he himself has chosen the VC at 10 AM in the morning.

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Information to appear was conveyed to the Ld. Counsel for the CH Bank.

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Accordingly, Shri Mohit Mishra, POA Holder for the CDs appears through VC.

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Ld. Adv for the CH Bank Shri Kirti Kapoor is also present through VC.

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The POA holder submits that today is the date fixed by the Ld. Adv Commissioner appointed in the case for handing over the physical possession of the mortgaged property to the auction purchaser. He further submits that there is an SAW No. 1012/2022 listed before the Hon’ble Rajasthan High Court, Jaipur Bench and one M.A No. 72/2022 listed before the Hon’ble DRAT, Delhi today in the matter. As such, he prays that the possession process be stopped till orders for the Hon’ble Courts.

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Upon the above submission, he was queried as to whether he had prayed for a stay order from the Hon’ble High Court on the previous day of listing i.e yesterday on 25.08.2022 and whether there was any order of stay from the Hon’ble Court.

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He admitted having prayed for orders of stay but the Hon’ble High Court was not pleased to grant him any such relief.

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In view of the above, it is not considered proper to pass any stay order at this belated stage when the whole lot of actions has already been completed and the Ld. Adv Commissioner and the officials of the CH Bank have already reached the location of the property for handing over the physical possession as directed.

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Page no. 6 of 9

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Prayers of stay disallowed.

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List the matter on 15/09/2022.

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(Kumar Pranav) Recovery Officer-I”

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Perusal of above order reveals that POA was present on 26.08.2022 and in his presence next date was given. It is a matter of common knowledge that only names of Advocates appear in the cause-list and not the name of POA holder. Thus, the allegation leveled by the applicant is without any basis and it cannot be held that Recovery Officer is biased. It may further be noted that Mr. Mohit Mishra who claims to be Power of Attorney holder of the applicant has not filed copy of POA even before this Tribunal. So far as grievance of POA for the applicant that he has filed a complaint before this Tribunal against RO is concerned, it may be pointed out that a remedy in the form of appeal is available to the applicant where he can challenge all the allegations leveled against the Ld. RO but he has chosen not to avail the same and the complaint filed by the applicant, therefore, loses its significance. As discussed earlier, transfer of the case from one court to another is a serious matter as it reflects upon the integrity and competence of the Ld. Judge/ Presiding Officer/ Recovery Officer and, therefore, there has to be some cogent and valid reason for doing the same and these reasons are missing in the present application.

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In view of the above discussions, I am of the opinion that there are no reasons to believe that Recovery Officer is biased or the applicant will not get fair trial and, therefore, there are no grounds for transfer of case bearing RC 871/2019 arising out of OA no. 734/2019 titled „SBI vs. M/s. Durga Jewellers‟ pending before Ld. Recovery Officer-I, DRT, Jaipur to any other Recovery

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Page no. 7 of 9

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Officer of any other Tribunal.

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Moreover, as discussed above, this Tribunal is of the opinion that if the appellant is aggrieved by the order of Ld. RO, he has a remedy to file an appeal before the Ld. PO, DRT as per Section 30 of RDB Act. The appellant has, however, not availed the said remedy as provided under Section 30 which runs as under:-

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Section 30 in The Recovery of Debts Due to Banks and Financial Institutions Act, 1993

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30. Appeal against the order of Recovery Officer.—

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(1) Notwithstanding anything

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contained in section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.

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(2) On receipt of an appeal under subsection (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under sections 25 to 28 (both inclusive).]

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Section 30A of the said Act runs as under:-

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Section 30A: Deposit of amount of debt due for filing appeal against orders of the Recovery Officer.

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Where an appeal is preferred against any order of the Recovery Officer, under section 30, by any person from whom the amount of debt is due to a bank or financial institution or consortium of banks or financial institutions, such appeal shall not be entertained by the Tribunal unless such person has deposited with the Tribunal fifty per cent of the amount of debt due as determined by the Tribunal.

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Since the appellant has not filed any appeal against

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Page no. 8 of 9

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the order of Ld. RO and is seeking transfer of the proceeding from one RO to another without any cogent material on record, in these circumstances, no grounds are made out for transfer of the RC pending before the Ld. RO.

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In view of the above discussion, the transfer application filed by the applicant is dismissed. File be consigned to Record room.

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Announced today on 27^th Sep., 2022.

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JUSTICE BRIJESH SETHI (CHAIRPERSON)

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(AP)

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Page no. 9 of 9

M/S. Durga Jewellers v. State Bank of India

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M/S. Durga Jewellers v. State Bank of India

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