Dismissed

Narniat Powers and Company v. State Bank of India

DRT20 Jan 2023APPEAL/4/2022

Case brief

AI extract

What is this about?

The Debts Recovery Tribunal dismissed an appeal by a certificate debtor challenging the dismissal of an interim application. The Tribunal held the Recovery Officer correctly refused jurisdiction to alter the recovery certificate or direct fund release under Section 26 of the RDBBIF Act, 1993, and noted the appellant exhausted their issues in prior proceedings.

What did the court decide?

The appeal filed by the appellant was dismissed, and the order dated 14.12.2021 passed by the Recovery Officer was upheld.

Narniat Powers and Company versus State Bank of India — Execution and Attachment | DRT (2023)

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Fair Order

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IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

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DATED THIS 20^th DAY OF JANUARY, 2023

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PRESENT: Su. WILLYAHM, B.Sc., M.L. [DISTRICT JUDGE - Retd] PRESIDING OFFICER

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Appeal No. 4 of 2022

DRC 646 of 2000

T.A No.7 of 2020

BETWEEN:

P. K. Kerala Varma Flat -F1, Block 10 Chinthavalap Flats Ram Mohan Road Kozhikode – 673 004.

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--Appellant/Certificate Debtor

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AND:

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State Bank of India, Bank Road, Kozhikode – 673001.

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--Respondent Bank/Certificate Creditor

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This Appeal coming on 19.12.2022 for final hearing before me in the presence of Mr. P.K. Kerala Varma, the appellant appearing as partyin-person and Mr. Raynold Fernandez, Advocate for the respondent Bank and upon hearing the arguments of both sides and having stood over for consideration till this day, this Tribunal delivered the following:

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Appeal 4 of 2022

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O R D E R

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The present appeal has been filed by the appellant to quash and set aside order dated 14.12.2021 passed by the Learned Recovery Officer in Interim Application No.369 of 2010 in DRC No. 646 issued in T.A No. 07/2000.

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The following are the facts which are not in dispute: The Transfer Application No.7 of 2000 filed by the applicant bank (respondent bank herein) against the defendants/guarantors was allowed vide order dated 28.01.2002. Recovery certificate was issued on the same date against the defendants/guarantors. The respondent in DRC proceedings filed the interim application No. 369 of 2010 in DRC No. 646 issued in TA No.7/2000 before the learned Recovery Officer praying that amount claimed from export proceeds from Nigeria should be deducted from the amount awarded in the Transfer Application. Learned Recovery Officer passed an order dated 12.12.2019 to the effect that he will not proceed further until Certificate Holder Bank produces the details of the subsequent receipts from Nigeria. The respondent Bank herein filed Appeal No.5 of 2020 challenging the said order of the Learned Recovery Officer. This Tribunal after hearing both sides allowed the Appeal by setting aside the order dated 12.12.2019 of the Recovery Officer and directing him to decide the interim application No.396/2010 afresh as per law. The matter was remitted back to the learned Recovery Officer. In compliance of the order of this Tribunal, the learned Recovery Officer heard the Interlocutory Application No.396/2010 afresh in the presence of both sides and dismissed the Interlocutory Application No.396/2010 on 14.12.2021. The petitioner/ certificate debtor having aggrieved over the order of the Recovery Officer have filed this present Appeal No.4/2022 before this Tribunal.

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The appellant along with the Appeal has filed copies of several documents, judgments of Hon'ble High Court of Kerala, judgments of the Sub Court in O.S.No.14/1989, copies of audited report, copies of decree passed in C.P No.6/2007 and C.P. No.7 of 1990 and copies of various other documents. The appellant has also filed argument notes. In the argument notes the appellant has raised various issues which have already been dealt with in TA No.7 of 2000. Therefore, the above issues cannot be discussed as well as dealt with in the present Appeal which has been filed challenging the order passed in IA No.369/2010 by the learned Recovery Officer. The respondent has filed detailed counter affidavit refuting the averments made by the appellant in his appeal as well in his argument notes.

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It will not be appropriate for this Tribunal to discuss the order dated 12.12.2019 of the then Recovery Officer passed in IA No.369/2010,

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Appeal 4 of 2022

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since it has been dealt with by this Tribunal in its order in Appeal No.5/2020. The reason for setting aside the above order has been stated by this Tribunal in para 26 of its order dated 29.03.2021 which reads as follows:

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“Thus, in view of the above facts and law applicable thereon, this is rare case where Learned Recovery Officer has exceeded his jurisdiction and sit in appeal over the recovery certificate issued by this Tribunal ignoring the facts that recovery certificate issued by this Tribunal is tried to be set aside by the defendants upto Hon'ble Apex Court but Recovery Certificate is affirmed and attained finality. However, Learned Recovery Officer has opened the issue involved in the Transfer Application by allowing the Interim Application No.369 of 2019 which is not permissible at all”.

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In compliance with the direction of this Tribunal, the learned Recovery Officer heard the IA No.369/2010 afresh and dismissed the petition on 14.12.2021. The learned Recovery Officer has observed in para 18 of his order as follows :

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“In so far as this question is considered, it is observed that the Hon’ble Presiding Officer issued Recovery Certificate (No.646/2022) on 28^th January 2002. After a long period of 8 years, the CD2 filed this IA 369/2010, i.e only when the recovery steps are accelerated. As the prayer in this IA is to issue direction to CHB to release funds by the bank belong to the CD, the Recovery Officer is not empowered to issue such direction in the light of the sub section (1) and (2) of Section 26 of the RDB Act. The section 26(1) and (2) envisages that ;

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(1) It shall not be open to the defendant to dispute before the Recovery Officer the correctness of the amount specified in the certificate, and no objection to the certificate on any other ground shall also be entertained by the Recovery Officer.

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(2) Notwithstanding to the issue of a certificate to a Recovery Officer, the Presiding Officer shall have power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate by sending intimation to the Recovery Officer. Hence, IA 369/2010 stands dismissed. No costs”.

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The appellant in the Memorandum of Appeal as well as in the argument notes, has raised several issues which have been raised and ought to have been raised in the Transfer application. All the issues have been dealt with elaborately by this Tribunal in its order dated 28.01.2022 passed in T.A. No. 7 of 2020. The appellant is not entitled to

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Appeal 4 of 2022

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raise the same issues again in the recovery proceedings. The appellant has leveled various unfounded allegations against the learned Recovery Officer and the Counsel appearing for the Certificate Holder.

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The order dated 12.12.2019 of the learned Recovery Officer passed in IA No.369/2010 was set aside by this Tribunal by holding that the above order is absolutely unsustainable. Therefore the matter was remanded back to the learned Recovery Officer to pass order afresh as per law. Pursuant to the above direction given, the learned Recovery Officer passed order in conformity with the provisions under 26(1) & (2) of RDBBIF Act, 1993. Therefore, the contention of the appellant that the learned Recovery Officer has committed contempt of court is unsustainable.

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This Tribunal has observed in para 25 of its order in Appeal No.5 of 2020 by referring to the judgment of the Hon’ble High Court of Madras in the case of Mrs. B. Rajeswari Vs The Presiding Officer & others (WP No.25110/2016, order dated 11.01.2017) that the Recovery Officer does not have any jurisdiction or powers to alter the decree and recovery certificate issued by the Presiding Officer and that the Recovery Officer is only an Officer to execute the decree/recovery certificate issued by the Presiding Officer and that he cannot sit on an Appeal over the recovery certificate issued by the Presiding Officer. Admittedly, the appellant herein has not preferred any appeal against the order of this Tribunal. Therefore, the above order still holds good. The Recovery Officer is not empowered to give direction such as production of statement of accounts, indicating the exact receipt of Indian currency with date of receipt and the balance dues including the interest portion in his order dated 12.12.2019. The above order contravenes the provisions of Section 26 (1) of the RDBBIF Act 1993. Therefore, this Tribunal does not find any flaw in the order dated 14.12.2021 passed in IA No.369/2010 by the learned Recovery Officer.

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In view of the foregoing reasons, this Tribunal holds that the relief sought for by the appellant in this Appeal is unsustainable in law and that therefore he is not entitled to get the relief sought for in the Appeal, which is devoid of merits.

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In the result, this Appeal No.4 of 2022, stands dismissed.

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Dictated to Steno, taken down, transcribed, typed by him, corrected and Pronounced by me in the Open Court, this the 20^th January, 2023.

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[Su. WILLYAHM] PRESIDING OFFICER

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Mj/

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Narniat Powers and Company v. State Bank of India

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Narniat Powers and Company v. State Bank of India

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