Remanded

M/s. Ing Vysya Bank Ltd., v. Mr.G.Siva Prasada Reddy

Telangana HC9 Nov 2009CRP/3230/2009

Case brief

AI extract

What is this about?

High Court allowed civil revision setting aside the Debt Recovery Tribunal order dismissing an application to condone delay in filing a counter claim. The Tribunal was remanded to independently consider the limitation issue based on earlier High Court directions.

What did the court decide?

Civil Revision Petition allowed; impugned order set aside; matter remanded to DRT for fresh disposal within 4 weeks after hearing parties.

M/s. Ing Vysya Bank Ltd., Vs Mr.G.Siva… — Contract and Commercial Disputes | Telangana HC (2009)

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Civil Revision Petition No.3230 of 2009

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(Dated: 09-11-2009)

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Between:

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M/s.ING Vysya Bank Ltd., rep. by Regional Recovery Manager Regional Office, Himayath Nagar, Hyderabad.

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…Petitioner/Respondent No.1

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A n d

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Mr.G.Siva Prasada Reddy S/o G.K.Reddy Srinagar Colony, Hyderabad and another

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…Respondents

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Civil Revision Petition No.3230 of 2009

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ORDER:

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This revision is directed against the order dated 11.5.2009 passed in I.A.No.319 of 2003 in O.S.No.536 of 1999 on the file of the Debt Recovery Tribunal, Hyderabad, whereby and whereunder, the learned Presiding Officer of the Debt Recovery Tribunal dismissed the application filed by the 2^nd defendant-G.Siva Prasad Reddy under Section 22(2)H of Debt Recovery Tribunal Act to condone delay of 3 years, 2 months and 6 days, i.e., 1134 days in preferring a counter claim.

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2. The petitioner is the applicant in O.A.No.536 of 1999. Respondents herein are the defendants in the said suit. The case has a chequred career. This is the 3^rd journey of the parties to this Court on the orders passed in interlocutory applications. The petitioner-applicant initially filed O.A.No.1304 of 1996 on the file of Debt Recovery Tribunal at Bangalore against the respondents herein for recovery of Rs.2,36,22,500/- with interest at 25.25% per annum compounded quarterly from 16.12.1996 till the date of realization apart from ancillary reliefs with regard to the sale of shares pledged as

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security for the loan.

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3. The 2^nd defendant filed written statement on 18.3.1997. In the written statement, he made a counter claim. Subsequently, the O.A came to be transferred to the file of Debt Recovery Tribunal, Hyderabad (for short, `the tribunal’) and renumbered as O.A.No.536 of 1999. The 1^st respondent-2^nd defendant filed I.A.No.313 of 2000 in O.A.No.536 of 1999 on the file of the Debt Recovery Tribunal, Hyderabad seeking to treat his claim in the written statement filed in the O.A as a counter claim under Section 19(8) of Act 5 of 1993 and adjust the same along with the claim of the applicant. The said I.A was dismissed on 13.10.2000. Aggrieved by the same, the 1^st respondent2^nd defendant filed C.R.P.4732 of 2000. The said C.R.P along with another C.R.P.No.4733 of 2000 came to be disposed of with a direction that the counter claim must be deemed to have been made on the date of the presentation of the above said I.A. For better appreciation, I may refer the relevant portion of the common order passed in C.R.P.No.4732 of 2000 and C.r.P.No.4733 of 2000, which reads as hereunder:

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“ Apart from the question of a counter claim, if the petitioner herein really had any claim to recover any amount from the first respondent bank, nothing prevented the petitioner from filing a suit for recovery of such an amount from the first respondent bank. The fact that earlier the Act did not provide for the adjudication of the counter claims by the defendants, did not prohibit the petitioner herein in seeking adjudication before the ordinary civil Courts insofar as claim for recovery of money is concerned.

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In the circumstances, I am of the opinion that the present civil revision petition No.4732 of 2000 can be disposed of with a direction to the Tribunal to adjudicate upon the counter claim

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made by the petitioner, of course, on payment of appropriate court fee and compliance with the other procedural requirements in this regard. However, it is open for the respondents to raise the plea of limitation if any in such counter claim and for the purpose of limitation, the counter claim must be deemed to have been made on the date of presentation of the above said I.A.

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Coming to the Civil Revision Petition No.4733 of 2000, it is a claim for set off by the petitioner-defendant. The issue involved in this revision is substantially the same as in the above said revision. Therefore, the present civil revision petition is disposed of with a similar direction as is given in the above said revision.”

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4. Thereafter, the 1^st respondent-2^nd defendant filed I.A.No.319 of 2003 in O.A.No.536 of 1999 to condone delay of 1134 days in preferring the counter claim. The learned Presiding Officer of the tribunal, by order dated 08.6.2005, allowed the application. Thereupon, the respondent-Bank in I.A.319 of 2000 in O.A.No.536 of 1999 filed C.R.P.314 of 2007. The said C.R.P came to be allowed by order dated 11.2.2009. The order passed in the C.R.P.No.314 of 2007 reads as hereunder:

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“ Heard and perused the impugned order. A perusal of the impugned order goes to show that in the earlier C.R.P Nos.4732 and 4733 of 2000 this Court directed the Debt Recovery Tribunal to adjudicate upon the counter claim made by the petitioner, on payment of appropriate court fee and on compliance of other procedural requirements in that regard and further observed that respondents can raise the plea of limitation, if any in such counter claim for the purpose of limitation, the counter claim must be deemed to have been made on the date of presentation of the I.A. therein. But the Presiding Officer of the Debt Recovery Tribunal, except

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reproducing the order in the C.R.P., has not given any independent reasons to allow the impugned application, which is unwarranted. Hence, I feel that it is a matter to be remanded to the tribunal for passing appropriate orders with regard to limitation while condoning the delay, within a period of 4 weeks from the date of receipt of a copy of this order. In the result, this civil revision petition is allowed accordingly and the matter is remanded to the Debt Recovery Tribunal, Hyderabad, to pass appropriate orders, in the light of the above observations, within a period of 4 weeks from the date of receipt of a copy of this order. No costs.”

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5. On remand, the learned Presiding Officer of the tribunal heard the parties and proceeded to dismiss the I.A 319 of 2003 with an observation that the said petition is redundant as there is no delay in pleading counter claim and the said counter claim can be considered along with the main O.A.

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6. Aggrieved by certain observations made therein, the applicant in O.A.No.536 of 1999 has filed this revision under Article 226 of the Constitution of India.

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7. While ordering notice before admission, interim stay has been granted on 4.8.2009. The 1^st respondent-2^nd defendant entered appearance through a counsel.

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8. When the C.R.P came up for admission hearing, with the consent of the counsel appearing for the parties, it is taken up for final disposal.

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9. Heard learned counsel appearing for the petitioner-applicant and the 1^st respondent-2^nd defendant.

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10. Learned counsel appearing for the petitioner-applicant submits that the tribunal has thoroughly misread the findings recorded by this Court in C.R.P.Nos.4732 and 4733 of 2000 and proceeded to make certain observations which are contrary to the material brought on record. A further submission has been made that the order passed by this Court in C.R.P.Nos.4732 and 4733 of 2000 is very clear that the counter claim made by the 2^nd defendant must be deemed to have been made on the date of presentation of the I.A.No.313 of 2000. Learned counsel laid much emphasis on the observations made by this Court in the above referred two revisions.

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11. Per contra, learned counsel appearing for the 1^st respondent-2^nd defendant submits that this Court in C.R.P.No.314 of 2007 has directed the tribunal to consider the I.A., independently, and therefore, the tribunal considered the contentions of the parties independently and recorded a finding that the delay condonation petition is not necessary and such a finding does not warrant interference by this Court in exercise of powers under Article 226 of the Constitution of India.

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12. Let me first examine how the 1^st respondent-2^nd defendant understood the order passed by this Court in C.R.P.No.4732 and 4733 of 2000. The relevant portion of the order has already been extracted supra. The order does not give any ambiguity with regard to the date on which the counter claim made by defendant No.2 is deemed to have been presented. At the cost of repetition, I may make it clear that a categorical finding has been recorded in C.R.P.Nos.4732 and 4733 of 2000 that the counter claim of the defendant No.2 must be deemed to have been made on the date of

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presentation of the said I.A. The 1^st respondent-2^nd defendant, in support of his application, in para 7 of the affidavit stated as hereunder:

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“ It is submitted that I applied for copy of the judgment and order of Hon’ble High Court on 1.3.2002. But copy of the orders were furnished to us only on 1.8.2002. The learned Judge of the High Court disposed of with direction to this Hon’ble Tribunal to adjudicate upon on payment of appropriate Court fee and compliance with other procedural requirements. The learned Judge also observed that it was open for the respondent Bank to raise plea of limitation for counter claim and that the counter claim must be deemed to have been made on the date of presentation of above O.A.”

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13. The contention of the 1^st respondent-2^nd defendant with regard to the plea of limitation on counter claim is contrary to the findings recorded by this Court in C.R.P.Nos.4732 and 4733 of 2000. The learned Presiding Officer of the tribunal proceeded; as if, this Court in the C.R.P Nos.4732 and 4733 of 2000 made an observation that the counter claim of the 2^nd defendant is deemed to have been made on the date of filing of the written statement. The whole reasoning assigned by the learned Presiding Officer of the tribunal is because of his misconception of the observations made by this Court in C.R.P.Nos.4732 and 4733 of 2000. It is made clear that the learned Presiding Officer of the tribunal has to consider whether the counter claim made by 1^st respondent-2^nd defendant is within limitation, treating the date of filing of the counter claim as 21.6.2000.

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14. In the result, the Civil Revision Petition is allowed setting aside the order dated 11.5.2009 passed in I.A.No.319 of 2003 in O.A.No.536 of 1999 on the file of Debt Recovery Tribunal, Hyderabad and consequently, I.A.319

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of 2003 is remanded for fresh disposal in accordance with law, after giving an opportunity to both the parties. No order as to costs.

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______________________________ B.SESHASAYANA REDDY, J

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Dt.09-11-2009 RAR

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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Civil Revision Petition No.3230 of 2009

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(Dated : 09-11-2009)

M/s. Ing Vysya Bank Ltd., v. Mr.G.Siva Prasada Reddy

Case brief

What is this about?

What did the court decide?

M/s. Ing Vysya Bank Ltd., v. Mr.G.Siva Prasada Reddy

Case brief

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What did the court decide?

What the court decided

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