Dismissed

Ms Smriti Mini Rice Mill Ors. v. Dakshin Bihar Gramin Bank

DRT10 Apr 2023MA/127/2022

Case brief

AI extract

What is this about?

Debts Recovery Tribunal, Patna dismissed a miscellaneous application seeking recall of a final order dated 29.05.2019. The court held the application was barred by limitation under Article 123 of the Limitation Act. Furthermore, the Tribunal ruled that miscellaneous applications cannot be used to review merits or re-appreciate evidence when a specific review provision exists in the Act.

What the court decided

AI extract

Ms Smriti Mini Rice Mill Ors. versus Dakshin Bihar Gramin… — Execution and Attachment | DRT (2023)

DRT, PATNA

MA 127 of 2022 [0]

DEBTSRECOVERYTRIBUNAL,PATNA

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Presiding Officer : Shri Kaushalendra Yadav

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MA 127 of 2022

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M/s Smriti Mini Rice Mill through its Proprietor Ramshray Sharma, S/o Sri Gopal Sharma, R/o At & P.O. Kab, P.S. Rani Talab, Dulhin Bazar, Patna.

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.........Applicant

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Versus

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The Branch Manager, Dakshin Bihar Gramin Bank, Kab Branch, Patna

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.......Respondent

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Present: For the Applicant : Sh. C.S.P.Sinha, Advocate For the defendant : Sh. M.K. Mishra, Advocate

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Dated: 10.04.2023

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ORDER

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This misc. application has been filed by applicant for recalling the judgment dated 29.05.2019 passed by this Tribunal in OA 505/2018 alongwith limitation petition. 2. On the point of limitation it is stated that delay in filing this MA is not intentional. Due to personal problems as the members of the family of the applicant were ill and in the meantime COVID 19 Pandemic came, therefore, instant MA could not be filed in time. 3. On the point of merit it has been stated that Hon'ble Tribunal without taking cognizance of the fact that the bank had capitalized the interest contrary to Hon'ble Apex Court's direction given in Ravindra's Case, passed judgment and issued Recovery Certificate in the matter. Further, the applicant was entitled to 35% subsidy, on capital investment, from Govt. of India, but it was not collected and credited to the Applicant's loan account. So, the amount determined to be repaid by the applicant is erroneous and as such the order dated 29.05.2019 needs to be recalled and the applicant's liability also needs to be adjudicated afresh.

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Heard Ld. Counsel for the parties and gone through the record.

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DRT, PATNA

MA 127 of 2022 [0]

The relief sought for in this M.A. is confined to recall of the final order passed by this Tribunal in O.A. 505 of 2018.

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It would be worthwhile to take up the limitation ground first before going to the merits of the case.

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To resolve the issue it would be necessary to refer Section 22(2)(g) of the Act of 1993, which is extracted below: "22(2)(g) setting aside any order of dismissal of any application for default or any order passed by it ex-parte;" It reveals that aforesaid subsection of (2)(g) of Section 22 empowers the Tribunal to set aside or recall ex parte order passed by it, but no limitation has specifically been provided for it. However, Section 24 of the RDB Act 1993 makes it clear that the provisions of the Limitation Act,1963 shall, as far as may be, apply to an application made to a Tribunal. Legislature has left the matter of limitation under the provisions of Limitation Act where, under Article 123, such provision is available. For better understanding Article 123 is reproduced below:

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123 To set aside a decree Thirty The date of the passed ex parte or to days decree or where rehear an appeal decreed the summons or or heard ex-parte. notice was not duly served, Explanationfor the when the purpose of this article, applicant had substituted service under knowledge of Rule 20 of Order V of the the decree. Code of Civil Procedure, 1908 (5 of 1908)shall not be deemed to be due service.

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For the purpose of setting aside the decree or order or for rehearing of an appeal, the limitation period for filing an application is 30 days and the date from which limitation will count is the date of the order or from the date of knowledge.

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In this case the final order dated 29.5.2019 was sought to be recalled. The M.A. Applicant's argument is that his family was suffering from illness and also in the meantime Covid 19 Pandemic occurred, thus, he filed a present M.A. on 26.7.2022 i.e. after a lapse of more

DRT,PATNA

MA 127 of 2022 [0]

than 3 years as the fact remains that order sought to be recalled was passed on 29.5.2019.

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M.A. Applicants argued that while passing judgment on some of the issues as the bank had capitalized the interest contrary to Hon'ble Apex Court's direction given in Ravindra's Case, passed judgment has not been considered. Further, the applicant was entitled to 35% subsidy, on capital investment, from Govt. of India, but it was not collected and credited to the Applicant's loan account. . 11. In view of the specific provision for the review in the Act, there is no scope for any miscellaneous application to set aside or to get the order reviewed especially on the ground in respect of the alleged wrong calculation of the amount due.

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The miscellaneous applications are entertained under the Recovery of the Debts and Bankruptcy Act 1993, in exercise of the residuary powers of the tribunal by virtue of section 22(h). The residuary powers cannot be used to bypass the specific provisions of the Act and the Rules. As such when the Review is specifically provided under the Act, the miscellaneous application is not maintainable. The residuary powers cannot and should not be exercised to bypass the specific provision made for a specific purpose.

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The aforesaid interpretation further finds support of Hon'ble Patna High Court which, in the matter of Rajeev Kumar Singh versus chairman / managing director Indian Bank and others, has observed as under-

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"We are afraid that the debts recovery tribunal kept on entertaining miscellaneous applications one after another and reviewed its decision on merits as and when in whatever way it is suited to the petitioners. We therefore strongly deprecate this approachof the tribunaland put a wordof caution for henceforth. The Debts Recovery Tribunalshall not entertain a miscellaneous applicationfor reviewing its decision or recall of an order passed by it, affecting the merits of the case. The applicationshould be in conformity with the condition mentioned in Rule SA and when an error apparent on theface of recordisfound.~~

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Hence the practice of filing miscellaneous applications for the purpose of review of the judgment has to be discouraged.

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Otherwise also it is important to mention here that the prayer made in the present miscellaneous application requires re-appreciation of facts and evidence of the aforesaid original application setting aside the judgment passed on merits. The scope of inquiry under the review is not

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DRT,PATNA

MA 127 of 2022 [0]

extended to revisit or de-novo appraisal of evidence to pass the fresh order/ judgment on merits.

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In view of the above discussion, this petition for recalling of the judgment passed in the aforesaid O.A. is not maintainable and is dismissed, accordingly.

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A copy of this order is given to the parties.

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The order signed, dated and pronounced in open court today.

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Consign the record.

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~ _<>" _u_ 'i \Y;' [Kaushalendra Yadav] Presiding Officer Debts Recovery Tribunal, Patna Date: 10.04.2023

Ms Smriti Mini Rice Mill Ors. v. Dakshin Bihar Gramin Bank

Case brief

What is this about?

What the court decided

Ms Smriti Mini Rice Mill Ors. v. Dakshin Bihar Gramin Bank

Case brief

What is this about?

What the court decided

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