Dismissed

Mrs Sumita Chowdhury v. United Bank of India

DRAT20 Jul 2022REGULAR APPEAL/170/2018

Case brief

AI extract

What is this about?

The Debt Recovery Appellate Tribunal dismissed an appeal challenging a Review Petition. The Tribunal held that the review was barred by time as it was filed beyond the mandatory sixty-day limit under Rule 5A, starting from the date of the order. It also rejected the new ground raised under the RTI Act.

What did the court decide?

The appeal was dismissed; no order as to costs.

Mrs Sumita Chowdhury versus United Bank of India — Banking and Recovery | DRAT (2022)

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Appeal No. 170 of 2018-DRAT-Kolkata

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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(Appeal No. 170 of 2018)

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(Arising out of R.A. 03 of 2018 in Appeal No. 05 of 2015 DRT-2, Kolkata)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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Mrs. Sumita Chowdhury, Wife of Mr. Gopal Kumar Chowdhury, of 17A, Girish Chandra Bose Road, Entally, Kolkata - 700 014.

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… Appellant

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-Versus-

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Punjab National Bank (Formerly United Bank of India), Manicktala Branch, Kolkata – 700 006;

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M/s. M.G. Associates and Others of 54D, Gariahat Road Kolkata – 700 019.

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… Respondents Counsel for the Appellant … Mr. K. Sadhukhan, led by Mr. Samik Basu Counsel for Respondent Bank … Ms. Sharmistha Pal led by Mr. Debasish Chakrabarti

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None for Respondent No. 3

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JUDGMENT : 20.07.2022

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THE APPELLATE TRIBUNAL :

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Instant appeal has arisen against judgment and order dated 8^th August, 2018, passed by Learned DRT-2 Kolkata in T.R.C. No. 91 of 2001 in the matter of M/s. Sumita Chowdhury -vs- Recovery Officer, DRT-2, Kolkata.

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2. Learned DRT dismissed the Review Petition No. 03 of 2018 on the ground of barred by limitation.

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3. Feeling aggrieved Appellant has preferred the instant appeal.

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I have heard the Learned Counsel for the parties and have perused the record.

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4. It appears that Recovery Officer, DRT-2, Kolkata passed an order, dated 13^th February, 2015, which was challenged by the Appellant by preferring an appeal, being Appeal No. 05 of 2015, arising out of T.R.C. No. 91 of 2001 in the matter of M/s. Sumita

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Appeal No. 170 of 2018-DRAT-Kolkata Chowdhury -vs- United Bank of India & Others. This appeal was dismissed on 19^th March, 2018 holding that requisite Court fee of Rs.29,750.00 is not paid despite granting sufficient time for more than two years.

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5. An application for review of the order, dated 19^th March, 2018, was filed by the Appellant before the Learned DRT-2, Kolkata on 18^th May, 2018 stating that she had moved before the Learned Recovery Officer for release of attachment of her flat which, however, was dismissed by the Learned Recovery Officer without assigning any reason.

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6. Appellant preferred an appeal against the order by putting Court fee of Rs.250.00 which was registered as Appeal No. 05 of 2015 without pointing out any defect. Appeal was subsequently dismissed on 19^th March, 2018 by the Learned DRT. In paragraph 8 of the application for review it is stated that the Appellant, through her son, Mr. Anoyjeet Chowdhury, referred to the provisions of the Right to Information Act, 2005 on 9^th June, 2017 in order to be sure about the prescribed fee in such a case and was informed that the third parties’ application under the Recovery of Debts Due To Banks And Financial Institutions Act, 1993, prescribed fee is Rs.250.00 only. Accordingly, it was prayed that the order dated 19^th March, 2018 be reviewed.

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7. This application for review was dismissed by the Learned DRT by the impugned order dated 8^th August, 2018, which is under challenge.

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8. Learned Counsel for Appellant submits that review petition has wrongly been rejected by the Learned DRT as no issue of limitation was raised by the opposite party at the time of hearing. Further, it is submitted that the limitation for moving the application for review will commence from the date when copy of the order is provided to the Appellant as provided under Rule 16 of The Debts Recovery Tribunal (Procedure) Rules, 1993. It is further submitted that under Section 30 of the Rules, if any appeal is preferred against an order of

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Appeal No. 170 of 2018-DRAT-Kolkata

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the Recovery Officer, the period of limitation of thirty days will commence from the date, the copy of the order is issued to the Appellant. Learned Counsel has further submitted that the Court fee payable in the appeal was in accordance with the provisions of the Act and Rules. Court fee of Rs.250.00 was rightly paid. Learned Counsel has further submitted that under the provisions of Right to Information Act, an intimation was given by the Learned DRT to the effect that payment of Court fee of Rs.250.00 is in accordance with the provisions of law. Hence, Rs.250.00 towards Court fee was paid.

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9. Learned Counsel for Respondent submitted that the Learned DRT has rightly dismissed the application for review as it was filed beyond the mandatory provisions of thirty days. It is further submitted that the only plea taken in the application is regarding information in respect of the Right to Information Act. It is submitted that the Appellant cannot take a plea in the appeal which has not been taken by him before the Learned DRT. He cannot develop a new case in the appeal. Learned Counsel further places reliance upon the provisions of Section 13 along with Rule 5 of The Debts Recovery Tribunal (Procedure) Rules, 1993.

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10. As far as the facts of the matter are concerned, there is no dispute that the order of the Recovery Officer dated 13^th February, 2015 was challenged by the Appellant before the Learned DRT by filing Appeal No. 05 of 2015. Appeal was decided on 19^th March, 2018. It is also not in dispute that the review application was filed on 18^th May, 2018.

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11. As far as legal provisions are concerned Section 30 of the Recovery of Debts Due To Banks And Financial Institutions Act, 1993 and Rule 5A of The Debts Recovery Tribunal (Procedure) Rules, 1993 holds the field, which are quoted below:

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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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Appeal No. 170 of 2018-DRAT-Kolkata (1) Notwithstanding anything 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 sub-section (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).” “Section 5A in The Debts Recovery Tribunal (Procedure) Rules, 1993

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5A. Review.—

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(1) Any party considering itself aggrieved by an order made by the Tribunal on account of some mistake of 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.

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(2) No application for review shall be made after the expiry of a period of sixty days from the date of the order and no such application shall be entertained unless it is accompanied by an affidavit verifying the application.

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(3) Where it appears to the Tribunal that there is no sufficient ground for a review, it shall reject the application 2 [but where the Tribunal is of opinion that the application] for review shall be granted, it shall grant the same.”

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12. Section 30 of the Act provides that the appeal may be preferred within thirty days from the date a copy of the order is issued. Rule 5A deals with the review which specifically provides that no application for review shall be made after expiry of a period of thirty days from the date of the order. The period of thirty days is amended with effect from 4^th of November, 2016. Language of Rule 5A Sub-Rule (2)

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Appeal No. 170 of 2018-DRAT-Kolkata specifically says that it is a mandatory provision wherein no scope is given for condonation of delay on any account. Had it been the intention of the Legislature that delay, if any, in moving an application can be condoned then the word ‘shall’ would not have been used in Rule 5A Sub-Rule (2) of the Rules. Accordingly, I am of the view that the period of thirty days for filing an application for review is mandatory. If there is any delay in moving the application, such application cannot be considered, being barred by time. The period of thirty days will start commencing from the date of the order, there is no provision in this Rule that this period shall commence from the date when the copy of the order is received by the Applicant or the order is communicated to him. However, if we peruse the order sheet it is clear that on the 19^th of March, 2018 the matter was posted for final orders and the order was pronounced in open Tribunal by the Learned DRT although neither the Appellant nor the Respondent were present at the time of delivery of the order.

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13. Further, as pointed out by Learned Counsel for Appellant, that the copy of the order was delivered to the Appellant on 2^nd May, 2018. The certified copy of the order, filed by the appellant, shows that the application for the certified copy of the order was filed on 16^th April, 2018; copy was ready on 28^th April, 2018. Now, even if we deduct this period of thirteen days in preparation of the copy, even then the review petition was not field within time although no such benefit can be extended in favour of the in view of Rule 5A Sub Rule (2) of the Rules.

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14. Review petition was filed on the ground that the Appellant sought an information under Right to Information Act, 2005 on 9^th June, 2017 wherein it was informed that prescribed fee for the third parties’ application, under the Recovery of Debts Due To Banks And Financial Institutions Act, 1993, is Rs.250.00 only. Accordingly, Appellant moved the application for review. It is settled legal proposition that a ground, that has not been taken before the Learned

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Appeal No. 170 of 2018-DRAT-Kolkata trial Court, cannot be taken in the appeal. Before the Learned DRT this was the sole ground for review. Further from which date the limitation was to be calculated was also not mentioned in the review petition. Plea of limitation is a legal plea which, even if not challenged, can be considered by the Learned DRT. Learned DRT is under the legal obligation to ensure compliance of the mandatory provisions which is to be complied with by the Appellant. Accordingly, I am of the view, no ground for review is taken in the review application which is being taken in the appeal. Secondly, Learned DRT has rightly decided the review petition; being time barred under Rule 5A, Sub Rule (2) of the Rules 1993.

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15. As far as the merits of the case are concerned, they cannot be looked into as the appeal has already been dismissed by the Learned DRT which order was not challenged by the Appellant in appeal. That order has attained finality. Review petition filed to review the order passed in Appeal No. 05 of 2015 dated 19^th March, 2018 was rightly dismissed by the Learned DRT. Accordingly, I do not find any force in the appeal which lacks merit and is liable to be dismissed.

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O R D E R

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The appeal, being Appeal No. 170 of 2018, is dismissed.

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No order as to costs.

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File be consigned to Record room.

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Copy of the order be supplied to Appellant and the Respondents

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and a copy be also forwarded to the concerned DRT.

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Order dictated, signed, dated and pronounced in open Court.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 20^th July, 2022 16/ac

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Appeal No. 170 of 2018-DRAT-Kolkata

Mrs Sumita Chowdhury v. United Bank of India

Case brief

What is this about?

What did the court decide?

Mrs Sumita Chowdhury v. United Bank of India

Case brief

What is this about?

What did the court decide?

What the court decided

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