The Tribunal dismissed an interim application seeking recall of an order based on a subsequent Supreme Court judgment, holding it prospective only. The Court also issued notice to the Notary regarding a discrepancy in the affidavit signing.
I.A. No. 127 of 2023 is dismissed. Notice issued to Notary Sri Narendra Prasad Gupta.
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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
Appeal No. 100 of 2022
THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON
07.07.2023 Suman Bhattacharyya & Another ... Appellants -VsIndian Bank & ors ... Respondent Mr. Saket Chowdhury, Learned Counsel Ms. Jayashree Saha, Learned Counsel for the Appellant Mr. Debasish Chakrabarty, Learned Counsel Ms. Sarmistha Pal, Learned Counsel for the Respondent No. 1 and 2/Bank. None for Respondent Nos. 3 to 6.
THE APPELLATE TRIBUNAL :
I.A. No. 127 of 2023 application filed by the Respondent Nos. 3 to 6 for recalling of the order dated 14.09.2022.
The matter is taken up in the revised list. None is present for the Respondent No. 3 to 6. A prayer is made that Learned Counsel for the Respondent No. 3 to 6 is busy in some other Court. Since the matter is taken up in the revised list hence, the prayer for adjournment is declined.
I have gone through the record. Order dated 14.09.2022 was passed on an application for waiver from making pre deposit which was allowed. I.A. No. 51 of 2022 was allowed and appeal was registered as regular appeal.
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In the Application I.A. No. 127 of 2023 a ground is taken that on 5th January, 2023 the Hon’ble Apex Court has delivered a judgment in Civil Appeal No. 8969 of 2022 (Siddha Neel Kanth Paper Industries versus -Prudent ARC Limited). On the strength of the said judgment recall of the order is sought on the ground that the Appellant cannot take advantage of sale proceeds which was given to him in the order dated 14.09.2022.
Learned Counsel for the Appellant submits that the judgment dated 05.01.2023 by the Hon’ble Apex Court in Siddha Neel Kanth Paper Industries versus -Prudent ARC Limited (supra) was passed after passing of the impugned order dated 14.09.2022. A judgment is always prospective in nature unless specified otherwise. In the judgment of the Siddha Neel Kanth (supra) there is no direction for retrospective application of the judgment. Accordingly, Respondent Nos. 3 to 6 cannot take advantage of the said judgment of Hon’ble Apex Court Siddha Neel Kanth Paper Industries versus -Prudent ARC Limited (supra). Accordingly, I do not find any force in the I.A. No. 127 of 2023 which is accordingly liable to be dismissed.
Before parting with the order I would like to observe that in the affidavit the name of the deponent is mentioned as Suman Bhattacharyya 27/1 Joy Krishna Paul Road, Post Office- Sahapur, Post Station-New Alipore, Kolkata - 700038. But it is signed by Mr. Dharmindar Kr. Verma who was identified by the Learned Counsel with Enrolment No.
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WB/1812/95. It was notarized by Mr. Narendra Prasad Gupta Notary with Registration No. 13823/2018.
Prima facie this affidavit was not sworn by the deponent whose name is mentioned on the top of the affidavit. Further Sri Suman Bhattacharyya is the appellant in this Appeal while Sri Dharmindar Kr. Verma is Respondent No. 3. How an affidavit of Suman Bhattacharya was signed by Sri Dharmindar Kr. Verma and how the Ld. Notary signed it?
It is a serious issue. Let notices be issued to Sri Narendra Prasad Gupta ,Notary to show cause as to why a recommendation be not made to delete his name from the list of Notaries. Reply be filed within two weeks.
I.A. No. 127 of 2023 is dismissed.
List on 2nd August, 2023 for hearing of Appeal. Notary Sri Narendra Prasad Gupta shall remain present in Appellate Tribunal on the date fixed.
Dated 7th July, 2023 1/tp
2 issues framed by the court
Whether a party can take advantage of a prospectively effective Supreme Court judgment passed after the impugned order.
Whether an affidavit appearing to be signed by a non-deponent warrants action against the notary.
Colour shows how this judgement treated each authority
Siddha Neel Kanth Paper Industries versus Prudent ARC LimitedReferred¶10
Civil Appeal No. 8969 of 2022 (Siddha Neel Kanth Paper Industries versus -Prudent ARC Limited)
Suman Bhattacharyya
Indian Bank
Dharmindar Kr. Verma
Anil Kumar Srivastava
As recorded by the court registry
17 orders share this CNR
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