Allowed

Emta Coal Limited and Sri Ujjal Kumar Upadhaya v. Hdfc Bank

DRAT5 Oct 2023MISC APPEAL/24/2023

Case brief

AI extract

What is this about?

In a miscl. appeal arising from a Recovery of Debts Tribunal case, the Tribunal allowed the appeal holding that the appellants must be given an opportunity to file counter evidence in the interest of justice, as the respondent bank had itself delayed filing evidence, subject to payment of costs.

What did the court decide?

Impugned order set aside; opportunity to file counter evidence allowed subject to payment of Rs. 50,000/- costs to bank and Rs. 2,00,000/- to State Legal Services Authority.

Emta Coal Limited and Sri Ujjal Kumar Upadhaya versus Hdfc Bank — Banking and Recovery | DRAT (2023)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Miscl. Appeal No. 24 of 2023

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(Arising out of O.A. 1194 of 2016 DRT-3 Kolkata)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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05.10.2023

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M/s. EMTA Coal Ltd., having its registered office at EMTA House, 58, Nandalal Basu Sarani, PS Park Street, Kolkata – 700071. 2. Sri Ujjal Kumar Upadhaya, Managing Director, carrying office at EMTA House, 58, Nandalal Basu Sarani, PS Park Street, Kolkata – 700071 and residing at 11, Queens Park, PS Ballygunge, Kolkata – 700016.

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… Appellants

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-Vs-

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HDFC Bank Ltd., having registered office at HDFC Bank House, Senapati Bapat Marg, Lower Parel (W), Mumbai – 400013 and branch office at 3A, Gurusaday Road, PS Ballygunge, Kolkata – 700019 and at Deptt. for Special Operations, Jardine House, 1^st floor, 4, Clive Row, PS Hare Street, Kolkata – 700001.

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… Respondent

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M/s. Karnataka EMTA Coal Mines Ltd. having its registered office at Flat No. 104, Marielle apartments, 3, Magrath Road, Bangalore – 560025.

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Proforma Respondent

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For Appellant

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: Mr. A. K. Dhandhania, ld. Senior Advocate. Mr. Sandip Agarwal, ld. Advocate. Mr. Tanay Agarwal, ld. Advocate. Mr. Souritra Ganguly, ld. Advocate. Ms. Shristi Sharma, ld. Advocate.

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For Respondents : Mr. Jishnu Chowdhury, ld. Advocate. Mr. Debabrata Basu Roy, ld. Advocate. Mr. Anunoy Basu, ld. Advocate.

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THE APPELLATE TRIBUNAL :

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Instant appeal has arisen against the order dated 07.08.2023 passed by learned DRT-3, Kolkata in O.A. No. 1194 of 2016 [HDFC Bank Ltd. Vs. M/s EMTA Coal Ltd. & Ors.] whereby defendants’ opportunity to file counter evidence was closed.

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As per pleadings of the parties, O.A. No. 1194 of 2016 was filed by the respondent bank u/s 19 of the Recovery of Debts and Bankruptcy Act, 1993 for recovery of Rs. 35,23,90,143.50 as on 31.12.2016 with future and pendente lite interest. During the pendency of the proceeding defendants/appellants who had put in appearance filed their evidence on 14.02.2020. Thereafter, matter was listed on 26.02.2021. Again, the matter was listed on 05.04.2021 when the written statement was filed by the defendant no. 1 and 2 and direction was issued to the Bank to file affidavit of service with regard to service of evidence upon the defendants. Thereafter, matter was listed on 08.12.2021 before the learned DRT wherein opportunity to file counter evidence was granted to the defendant/appellant subject to payment of Rs.50,000/- as costs. Defendants/appellants are ready and prepared to tender the costs. On 07.08.2023 when the matter was taken up, respondent bank filed I.A. No. 1948 of 2023 for fixing early date of hearing, but opportunity of filing counter evidence was closed by the impugned order and matter was listed on 30.11.2023 for final argument and order. Feeling aggrieved defendants/appellants preferred this appeal.

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I have heard learned counsel for the parties and perused the records.

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There are certain admitted facts. O.A. No. 1194 of 2016 was filed by the respondent bank on 24.11.2016. Written statement was filed by the defendants/appellants on 15.03.2017. Thereafter, respondent bank was required to file the evidence which was not filed. It was filed on 14.02.2020. On 05.04.2021 direction was issued to the respondent bank to serve copy of the evidence upon defendants/appellants and affidavit of service be filed. Matter was listed on 19.05.2021. Thereafter, on 08.12.2021 defendants/appellants sought time to file counter evidence which was allowed subject to payment of Rs.50,000/- as costs and matter was listed on 16.12.2021.

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It appears that an appeal was also preferred being Appeal No. 122 of 2017 by the appellant herein before this Appellate Tribunal against the order dated 22.02.2017 which was disposed of vide order dated 07.02.2018 with the direction to dispose of the O.A. expeditiously. It also appears that order dated 08.12.2021 was neither challenged nor complied. Thereafter impugned order was passed wherein learned DRT recorded a finding that despite order dated 08.12.2021 counter evidence was not filed by the defendants/appellants even costs of Rs.50,000/was not paid. Learned DRT was persuaded to decline the prayer for allowing the defendant to file counter evidence on the ground that order dated 08.12.2021 was not complied.

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Learned counsel for the appellant vehemently argued that respondent bank itself is responsible for the delay. When the O.A. was filed on 24.11.2016 while the appellant/defendant filed written statement on 15.03.2017, but despite granting time respondent bank filed evidence on 14.02.2020. On that date matter was pre-fixed on 19.06.2020. Registrar, DRT-3, Kolkata posted the matte on 19.06.2020. It is further submitted that thereafter due to Pandemic respondent bank could not file evidence. Further, appellant is ready and willing to file counter evidence, but that opportunity was closed due to non-compliance of the order dated 08.12.2021. Learned counsel has placed reliance upon the case of Kewal Krishna Vs. Harnek Singh reported in AIR 2001 SC 1440 wherein it was held by the Hon’ble Apex Court that interest of justice will require one more opportunity be given to lead his evidence subject to payment of costs. Learned counsel further relied upon the case of Trust

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Mandir Shri Ram Janki Gangadas Ji Ki Badi Shala Vs. Sharda Devi reported in 2019 SCC OnLine MP 3621.

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Per contra, learned counsel for the respondent submits that direction was issued by this Appellate Tribunal for expeditious disposal of the O.A. Even after filing of evidence by the Bank, defendants/appellants did not comply the order dated 08.12.2021. That order was neither challenged nor complied. Hence, appellant cannot be permitted to adduce evidence.

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Learned counsel has placed reliance upon Arjun Singh Vs. Mohindra Kumar & Ors. reported in AIR 1964 SC 993.

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No doubt, O.A. was filed on 24.11.2016. Written Statement was filed on 15.03.2017. Respondent bank filed evidence on 14.02.2020. Direction was issued on 05.04.2020 by the learned DRT to serve evidence upon defendants/appellants and affidavit of service be filed. It is not recorded as to when the evidence was served upon the defendants/appellant, but the fact remains that it was served upon the defendants/appellants. Thereafter, on 08.12.2021 time was sought by the appellants, which was allowed by the learned DRT subject to payment of Rs.50,000/- as costs. Matter was posted for hearing on 16.12.2021. A bare perusal of the order dated 08.12.2021 shows that no time limit was granted by the learned DRT to the defendants to file evidence, but since the matter was listed on 16.12.2021 it was implied that defendants should have filed evidence on that date, but it was not done. Thereafter, the matter could not be taken up by the learned DRT du to one or other reasons. Learned DRT by passing impugned order dated 07.08.2023 declined to afford opportunity to the appellant to adduce evidence. It is settled legal principle of law laid down by the Hon’ble Apex Court in the case of Kewal Krishna (Supra) that the matter should be allowed to come to a logical end by affording opportunity of hearing to the parties. No doubt, as would appear from the record, delay was caused by the defendant/appellant in filling the counter evidence,

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but the delay in disposal of the O.A. cannot only be attributed to the defendant/appellant alone, as respondent bank itself has filed the evidence on 14.02.2020, that is, after about more than three years of filing the O.A. Law laid down by the Hon’ble Apex Court in Kewal Krishna (supra) is clearly applicable to the facts of the present case as affording of opportunity to file counter evidence will be in the interest of justice. Case law referred by the respondent in the case of Arjun Singh (supra) is not applicable to the facts of the present case as undoubtedly the order dated 08.12.2021 was not challenged by either of the party and appellants are still ready and willing to comply the same.

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Accordingly, I am of the view that it would be appropriate that an opportunity be given to the defendant/appellant to file the counter evidence so that the matter can be decided on merit by the leaned DRT. Accordingly, instant appeal deserves to be allowed subject to payment of costs of Rs.2.00 lakh as the amount involved in the O.A. was Rs. 35,23,90,143.50 in the year 2016.

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O R D E R

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Appeal is allowed. Impugned order dated 07.08.2023 is set aside. Prayer seeking opportunity to file counter evidence in O.A. 1194 of 2016 is allowed subject to payment of Rs.50,000/- as costs imposed by learned DRT on 08.12.2021 and cost shall be deposited in favour of the respondent bank. Further, an amount

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of Rs.2,00,000/- as costs to be paid in favour of State Legal Services Authority. Both the costs shall be paid by 9^th October, 2023. Appellant is also permitted to file counter evidence by 12^th October, 2023 before the learned DRT-3 Kolkata after depositing both the costs. Thereafter, both the parties should appear before the learned DRT-3 Kolkata on 16.10.2023. Learned DRT-3 Kolkata is hereby directed to decide the O.A. on or before 30^th November 2023. No adjournment shall be granted to the parties except on exceptional circumstances with reasons to be recorded in the order. If the costs are not paid within the time frame or counter evidence is not filed within the time granted in this order, this order shall stand vacated and appeal shall stand dismissed.

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Registry is directed to communicate this order to learned DRT-3 Kolkata forthwith through E-mail as well as by postal mode.

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File be consigned to record room.

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Copy of the order be supplied to the appellant and the respondent and a copy be also forwarded to the concerned DRT.

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Copy of the judgement/Final Order be uploaded in the Tribunal’s website.

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Order dictated, signed and pronounced by me in the open Court on this the 5th day of October, 2023.

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(Anil Kumar Srivastava, J) Chairperson

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Dated: 5^th October, 2023 /pkb

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Later :

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Judgement is pronounced in presence of the learned counsel for appellant, Mr. Souritra Ganguly and Mr. Debabrata Basu Ray and Mr. Anunoy Basu, counsel for the respondents.

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(Anil Kumar Srivastava, J) Chairperson

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Dated: 5^th October, 2023 /pkb

Emta Coal Limited and Sri Ujjal Kumar Upadhaya v. Hdfc Bank

Case brief

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Emta Coal Limited and Sri Ujjal Kumar Upadhaya v. Hdfc Bank

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