Allowed

Indian Overseas Bank v. Mr.Subhash Chandra Bose

DRAT13 Mar 2024REGULAR APPEAL/38/2018

Case brief

AI extract

What is this about?

The Tribunal allowed the appeal filed by the bank against an order dismissing the originator application for default in prosecuting a pending interlocutory application. The lower court's order was set aside as it was passed without application of mind despite the main trial being concluded.

What did the court decide?

Impugned order dated 27.12.2017 set aside. Order to restore IA 1182/2017 and OA 50/2014 to file and decide them in accordance with law.

Indian Overseas Bank versus Mr.Subhash Chandra Bose — Banking and Recovery | DRAT (2024)

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RA 38/2018

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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI

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Dated the 13^th of March, 2024

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PRESENT: Hon’ble Mr. Justice S. Ravi Kumar CHAIRPERSON

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RA 38/2018

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(OA 50/2014 on the file of DRT-III, Chennai)

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Between

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M/s Indian Overseas Bank, Chidambaram Branch, No.8 & 9, West Car Street, Chidambaram, Cuddalore District 608 001.

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……Appellant Bank

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And

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Mr. R. Subash Chandra Bose, S/o Rangasamy, No.E-1, Arts College Road, Chidambaram T.K. Cuddalore District.

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….. Respondent

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Counsel for Appellant Bank : M/s Ananda Gomathy & Co. Counsel for Respondent : M/s G. Vijayakumar & Co.

RA 38/2018

ORDER

This Appeal is preferred under Section 20 of the Recovery of Debts Due to

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Bank and Financial Institution Act, 1993 against order dated 27.12.2017 wherein Tribunal below dismissed OA No.50/2014.

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Heard both sides.

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As seen from impugned order dated 27.12.2017, it is clear that IA No.1182/2017 is posted for enquiry as last chance, but, it appears junior counsel for appellant sought time on the ground that senior is out of station and Tribunal below while refusing adjournment as matter was posted as last chance dismissed OA along with IAs. The very order itself speaks that said IA is posted for enquiry as last chance. Advocate for respondent who opposed this appeal also submitted that IA which is filed for amendment of pleadings in the OA is posted as last chance to 27.12.2017 as appellant took time on previous occasions. Impugned order does not speak that appellant took time on previous adjournments also. But, the fact that remains is IA 1182/2017 alone is posted on 27.12.2017 as last chance.

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It is stated in the Memorandum of Appeal that OA is filed for recovery of Rs.28,71,146/- and in the OA defendants filed their reply statement, Bank filed proof affidavit, got marked documents, defendants filed counter proof affidavit

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RA 38/2018

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and arguments were also addressed. It is further stated that during arguments in June, 2017, it was noticed that figure of suit claim was inadvertently arrived and therefore IA 1058/2017 was filed to amend the suit claim to Rs.24,02,990/-from Rs.28,71,146/-. That IA came up for hearing on 16.8.2017. DRT pointed out that Certificate under Bankers Book of Evidence Act is not produced, for which, appellant sought time for production but that application was dismissed without granting time. Appellant filed IA 1182/2017 to restore IA 1058/2017 and also filed necessary Certificate with that application. IA 1182/2017 was posted for hearing to 14.12.2017 and from that date to 27.12.2017. Respondent did not file counter to that application but represented it will be filed during course of the day. These facts stated in the Memorandum of Appeal are not disputed by respondent as no reply is filed. Only argument of advocate for respondent is that claim of bank is wrong. Admittedly, this aspect is not decided and OA was dismissed for non prosecution. Further contention of advocate for respondent that amendment petition is posted as a last chance to 27.12.2017 is factually incorrect. What is posted as last chance to 27.12.2017 is IA 1182/2017 which is filed to restore amendment application that was dismissed earlier.

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It is not in dispute that in main OA trial is concluded and it is coming up for arguments. When that is the case, dismissing OA by impugned order dated 27.12.2017 is unwarranted. I can understand if Tribunal below dismissed interlocutory application i.e., IA 1182/2017 and decided OA on merits in which trial

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RA 38/2018

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is already concluded. But, unfortunately, through impugned order OA is dismissed

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and consequently IAs are dismissed as if OA is coming for arguments as last chance. As rightly pointed out by Advocate for appellant, impugned order cannot be sustained as it is passed without application of mind.

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Advocate for appellant bank sought for remand of the matter for fresh consideration, for which, other side strongly opposed.

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On a perusal of material papers, I am of the considered view that objection taken by respondent is not tenable as impugned order is not legal and cannot be sustained.

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For the above reasons, Appeal RA 38/2018 is allowed with costs.

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Impugned order dated 27.12.2017 is set aside. Tribunal below shall restore IA 1182/2017 and OA 50/2014 to file and decide them in accordance with law.

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All pending IAs, if any, stand closed.

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[Dictated to Steno(SN), transcribed by him, corrected, signed and pronounced by me in open court, this 13^th March, 2024)

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Indian Overseas Bank v. Mr.Subhash Chandra Bose

Case brief

What is this about?

What did the court decide?

Indian Overseas Bank v. Mr.Subhash Chandra Bose

Case brief

What is this about?

What did the court decide?

What the court decided

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