Allowed

Kotak Mahindra Bank Limited v. the Aluminium Manufacturing Co. Ltd. and Ors.

DRAT19 Jul 2023REGULAR APPEAL/46/2020

Case brief

AI extract

What is this about?

The Division Bench held that the DRT committed patent illegality by dismissing a restoration application without hearing it on merits. The order was set aside, and the DRT was directed to dispose of the application within 45 days.

What did the court decide?

Impugned order set aside; DRT directed to decide restoration application within 45 days.

Kotak Mahindra Bank Limited versus the Aluminium… — Banking and Recovery | DRAT (2023)

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Appeal No. 46 of 2020-DRAT-Kolkata

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Appeal No. 46 of 2020

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(Arising out of O.A. 540 of 2018 in T.A. 09 of 2002 in DRT-1, Kolkata)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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Kotak Mahindra Bank Limited, a compsany registered under the Companies Act, 1956 acting through one of its Authorised Representatives, having its registered office at 27B BKC, C 27, G Block Bandra Kurla Complex, Bandra (E), Mumbai – 400 051 .

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… Appellant

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-Versus-

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The Alumunium Manufacturing Company Limited ( in Liquidation) being represented by the of Official Liquidator. Having office at 9, Old Post Office Street, Kolkata – 700 001;

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Chandrakant Pasari;

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Sushila Devi Pasari;

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Ankarmal Pasari;

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Sajan Kumar Pasari;

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Smt. Gayatri Devi Pasari;

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Bhagirath Pasari;

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All Nos. 2 to 7 are residing at 4, Raney Park, Kolkata – 700 019 . … Respondents

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Counsel for the Appellants	…	Mr. Pratik Ghosh Mr. Avishek Roy Chowdhury
Counsel for Respondent Bank	…	Mr. Soumabho Ghosh Ms. Ashika Daga Ms. Arti Bhattacharya Mr. Samriddha Sen
JUDGMENT	:	19^thJuly, 2023

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THE APPELLATE TRIBUNAL :

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Instant Appeal has been preferred against an order dated 2^nd December, 2019 passed by Learned DRT-1, Kolkata in case No. O.A. 540 of 2018 arising out of T.A. 09 of 2002 (UCO Bank -vsThe Alumunium Manufacturing Company Limited & Others) whereby the following order was passed:

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Appeal No. 46 of 2020-DRAT-Kolkata Mr. Avishek Roy Chowdhury, Ld Counsel appears for Applicant Bank.

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Shri Ajay Chaubey Ld. Counsel appears for the Defendant No.2(a)and 4(b).

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“The Application has been dismissed on 17.06.2013.

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As far as we are concerned there is no petition pending with us, so as such matter is dismissed.“

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Feeling aggrieved, Appellant preferred the appeal.

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2. As would appear from the records that an O.A. was filed by the Appellant Bank against the Respondents for recovery of Rs.1,29,00,195.67 before the Hon’ble High Court at Calcutta being Suit No. 996 of 1980 under the Original Jurisdiction which was in due course transferred to DRT-1, Kolkata and re-numbered as T.A. 09 of 2002.

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3. UCO Bank assigned their debts/accounts in favour of the Appellant, Kotak Mahindra Bank Limited, on 31^st March, 2006 by way of a Deed of Assignment. Thereafter, an application for substitution was filed on 15^th September, 2006 by the Appellant. Pending adjudication of the substitution application, the transferred application, T.A. 09 of 2002, was dismissed on 17^th June, 2013 in default of the Bank. An application for restoration for the same was filed by the Bank wherein reply was filed by the Respondents on 3^rd March, 2014; reply of the same was also filed by the Bank on 25^th January, 2016. Learned DRT dismissed the restoration application on 2^nd December, 2019 holding that the application (T.A. 09 of 2002) has been dismissed on 17^th June, 2013. Further it is observed that since there is no petition pending before the Learned DRT, the matter is dismissed. Feeling aggrieved by the impugned order appeal is preferred.

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

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4. Present appeal was filed on 9^th November, 2020 with an application under Section 5 of the Limitation Act. The application under Section 5 of the Limitation Act was allowed on 14^th December, 2020.

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Appeal No. 46 of 2020-DRAT-Kolkata 5. Learned Counsel for Appellant submits that the impugned order, which is passed against the material available on record, itself is defective and a cryptic order. It is submitted that when the application was dismissed on 17^th June, 2013 an application for restoration of the O.A. was filed wherein opposition and reply to the opposition were filed. But it appears that the Learned DRT did not consider the restoration application and held that no matter is pending before it accordingly the impugned order is bad in law.

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6. Learned Counsel for Respondent submits that the Appellants have not complied the directions of the Learned DRT as far as amendments are concerned. 7. A perusal of the record reveals that an application for restoration was filed by the Appellant with a prayer for condonation of delay. Objection against the same was also filed by the Respondent (namely Bhagirath Pasari). Reply to the opposition was also filed by the Bank. Copy of the order sheets were filed along with the supplementary affidavit which shows that on 23^rd April, 2014 Learned Counsel Sri Subhendu Sinha appeared for Defendants No. 2 (a) and 4 (b) and filed affidavit-in-opposition which was taken on record. Time was also sought by the Learned Counsel for the Bank for filing reply and the matter was adjourned to 29^th October, 2014. Thereafter, the matter was adjourned on different dates and could not be taken up due to one reason or the other by the Learned DRT. On 21^st December, 2018 the matter was re-numbered as O.A. 540 of 2018. Ultimately, it was dismissed on 2^nd December, 2019 by the impugned order.

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8. As is clear from the from the record that an application for recall of the order dated 17^th June, 2013 was filed by the Bank, which was on the record, along with the objections and reply to the objection. Learned DRT should have considered the restoration application on merits but instead of hearing the restoration application and dispose of the same on merit, Learned DRT wrongly observed that no petition is pending with the DRT. Accordingly, the same is dismissed.

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Appeal No. 46 of 2020-DRAT-Kolkata

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9. On the basis of the discussion made above, I am of the considered opinion that the Learned DRT has committed patent illegality in dismissing the matter; rather it should have considered the restoration application and disposed of the same on merit. Accordingly, the impugned order dated 2^nd December, 2019 is bad in law and is liable to be set aside.

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O R D E R

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Appeal is allowed. Order dated 2^nd December, 2019, passed by the Learned DRT-I, Kolkata is hereby set aside. Learned DRT is hereby directed to decide the restoration application in accordance with law after affording opportunity of hearing to the parties. It is one of the oldest matter hence Learned DRT is hereby directed to dispose of the restoration application within a period of forty five days from the date of receipt of the copy of the order. Parties are hereby directed to appear before the Learned DRT-I, Kolkata on 7^th August, 2023. Learned DRT should not grant any adjournment to either of the parties except in exceptional circumstances.

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Registrar is directed to communicate this order to the Learned DRT-I, Kolkata immediately within a period of three days.

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Copy of the order be supplied to Appellants and the Respondents.

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Copy of the Judgment/Final Order be uploaded in the Tribunal’s Website.

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File be consigned to Record room.

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Order dictated, signed, dated and pronounced in open Court on the 19^th day of July, 2023.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 19^th July, 2023 ac

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Appeal No. 46 of 2020-DRAT-Kolkata

Kotak Mahindra Bank Limited v. the Aluminium Manufacturing Co. Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Kotak Mahindra Bank Limited v. the Aluminium Manufacturing Co. Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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