WPMS/579/2019 of VIJAY KUMAR KUSHWAHA Vs THE SOUTH INDIAN BANK LTD.

HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 579 of 2019 (M/S)

Vijay Kumar Kushwaha

Versus

The South Indian Bank Ltd. And others

..…Petitioner

.…Respondents

Advocate : Mr. Rakesh Thapliyal, Advocate for the petitioner Mr. P.I. Jose, Advocate along with Mr. L.K. Tiwari, Advocate for the respondents.

Hon’ble Sharad Kumar Sharma, J.

very peculiar situation which has arisen for consideration in the present writ petition before this Court is that there had been proceeding drawn before the Debts Recovery Tribunal (DRT), Lucknow under Section 19 of the Act, which was numbered as OA No. 217 of 2015, The South Indian Bank Ltd. and others v. Vijay Kumar Kushwaha. During its pendency, the present petitioner had filed counterclaim before the DRT, Lucknow. The case of the petitioner is that the main proceeding(s) of OA No. 217 of 2015 was clubbed together by DRT, Lucknow to be decided together with the main proceedings along with the counterclaim, as preferred by the present petitioner. Ultimately, the proceedings before the DRT, Lucknow stood transferred on creation of DRT, Dehradun and was re-numbered as TA No. 555 of 2018, TheSouth Indian Bank Limited and others v. Vijay Kumar Kushwaha.

2. The proceedings under Section 19, when it was transferred from DRT, Lucknow to DRT, Dehradun, the counterclaim, which was already clubbed together in the proceedings before the DRT, Lucknow for the reasons best known and undisclosed, was not transferred, meaning thereby, only part of the proceedings stood transferred. As result thereto, it is the case of the petitioner that he was constrained to supply fresh counterclaim for its adjudication. While the main proceedings were pending consideration, in the

meantime, the original counterclaim, which the petitioner had preferred before the DRT, Luncknow, that was traced out and was transferred to the DRT, Dehradun.

3. But before the main counterclaim could be transferred before DRT, Dehradun, the proceedings under Section 19, as drawn by the respondent bank was decided by the judgement dated 30.06.2018, passed in TA No. 555 of 2018, and as consequence thereto, the sale proclamation dated 04.01.2019 has been issued.

4. The petitioner questioning the order dated 30.06.2018, passed in TA No. 555 of 2018, had preferred writ petition before this Court being Writ Petition (M/S) No. 1813 of 2018, Vijay Kumar Kushwaha v. The South Indian Bank Ltd. The said writ petition was dismissed on 24.07.2018 by the coordinate Bench of this Court on the ground of availability of an alternate remedy, which was available to the petitioner to prefer an appeal before the DRT under Section 20 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993.

5. This judgement rendered by the learned Single Judge on 24.07.2018 dismissing the writ petition was reviewed vide its judgement dated 07.09.2018 of this Court. As consequence of the judgement passed on the Review Petition No. 1199 of 2018, the dismissal of the writ petition by the judgement dated 24.07.2018, was reviewed and the petitioner was directed to avail the remedy available to him under Rule 5-A of the Debts Recovery Tribunal (Procedure) Rules 1993. In compliance thereto, the petitioner had preferred Review Petition No. 3/2018, which too is pending consideration before the DRT, Dehradun. At present moment before the DRT Tribunal, the Review Petition is now fixed for 28.03.2019.

6. It has been argued by the learned counsel for the respondent that the facts which are borne out from the records, the

conduct of the petitioner, has also to be seen because taking advantage of the pendency of the review petition, which he has preferred in pursuance of the order dated 07.09.2018 passed by this Court on Review Petition filed in the writ petition dated 07.09.2018, he has also simultaneously filed transfer application before the DRATwhich too is pending consideration. Thus filing of transfer application is being classified by respondents’ counsel as malicious, because allegation is raised against the member of D.R.T.

7. Learned counsel for the respondent argues that the petitioner have cleverly avoided to argue the impact of the pendency of the transfer petition and to get the issue settled pertaining to the allegations, in which the petitioner has levelled allegations against Presiding Officer of the DRT, Dehradun. The learned counsel for the respondents submits that in view of the Judicial pronouncements as laid down by the Hon’ble Apex Court as reported in 2010 (8) SCC 110, United Bank of India v. Satyawati Tondon and others,as well as, the judgement, as rendered by the Hon’ble Apex Court on 05.10.2018 in the matters of ICICI Bank Ltd. and Ors. v. Umakanta Mohapatra and Ors. whereby, in both the judgements, the Hon’ble Apex Court has deprecated the practice that as against the order passed by the DRT, the writ petition should normally not be entertained, when there is an Appellate Forum available to the aggrieved party against an action taken against him before approaching the writ Courts under Article 226 of the Constitution of India. There cannot be any dispute pertaining to the ratio as propounded by the Hon’ble Apex Court with regard to the maintainability of the writ petition against the orders challenging the orders passed by the DRT. But in the instant case, it deals with altogether different facts, very peculiar situation which has arisen and which calls for an interference by this Court while exercising its extraordinary powers under Article 226 of the Constitution of India, is to the effect that once the petitioner had already preferred counterclaim before the DRT, Lucknow and the same was admittedly

clubbed together along with the main proceedings, there was no reason as to why DRT, Lucknow could not have transferred the counterclaim of the petitioner to the DRT, Dehradun along with the main proceedings under Section 19, so that both the proceedings under Section 19 of the Act, as well as the proceedings drawn by the respondents by virtue of the counterclaim as filed by the petitioner in all judicious propriety it should have been decided together by DRT so as to avoid any contradiction.

8. The decision which is now being sought to be impugned is as consequence of order dated 30.08.2018 and thereafter as consequence thereto is the sale proclamation which has been issued on 04.01.2019, as matter of fact, it is without an adjudication of rights and the claim of the petitioner raised by counterclaim which he has raised by virtue of filing of the counterclaim at its inception in the proceedings before DRT, Lucknow which is now fixed to be heard by the DRT, Dehradun on 28.03.2019.

9. In the peculiar facts and circumstances of the case it does call for interference under Article 226 of the Constitution of India so as to render substantial justice as without adjudicating the counterclaim already clubbed with principal proceeding under Section 19 which was supposed to be decided together, the proceedings under Section 19 filed by respondent has been decided on merits earlier by one of the judgements impugned dated 30.08.2018, and that to even without giving any thoughtful consideration of counterclaim raised by the petitioner in the proceedings under Section 19. At least in the circumstances in which the counterclaim was held up by DRT, Lucknow, it was incumbent on DRT, Lucknow to have ensured remittance of the records of the counterclaim too along with the main records of Section 19 proceedings. Its because of non transferring of the counterclaim the Tribunal proceeded to decide Section 19 is separate proceeding even without considering the records of counterclaim, meaning thereby the proceedings of respondent under

Section 19 stood decided even much before the case of the petitioner by way of counterclaim was taken into consideration by DRT, Dehradun. Particularly, when the petitioner has raised malafides against the Presiding Officer by filing transfer application before DRAT, which too was pending before DART, it was reasonably expected that Presiding Officer should have been slow in deciding Section 19 separately even without receipt of records of counterclaim which otherwise stood clubbed together earlier before DRT, Lucknow. Also where there is doubt created by the petitioner with regard to the bonafides with which the Presiding Officer of the DRT, Dehradun, had taken up the proceeding(s), this Court is of the view that the embargoes, created for entertaining the writ petition in the light of the Hon’ble Apex Court judgements would be altogether on slightly different pedestal and circumstances because, here party cannot to be made to suffer without his right being adjudicated by the DRT, before whom he has already approached during its pendency of proceedings under Section 19 of the Act, as filed by the respondent. It is settled law that none of the party to the proceedings should suffer due to procedural mistake of the Tribunal created under an Act and discharging an adjudicatory duty.

10. In these circumstances, the DRT, Dehradun is directed to decide the Review Petition as filed by the petitioner under Rule 5A of the Act, as directed by the coordinate Bench of this Court vide its judgement dated 07.09.2018 rendered in Review Petition No. 1199 of 2018 by the next date fixed, and will ensure and make efforts that the decision is rendered on the said Review Petition under Rule 5A of the Rules on the same day, provided there is no other legal impediments and till the decision is taken on the Review Petition, the sale proclamation dated 04.01.2019 which has been issued as consequence of the judgement dated 13.06.2018 rendered under Section 19 of the Act will not be given effect to.

11. Subject to the above observation, the writ petition stands disposed of.

Mahinder/

(Sharad Kumar Sharma, J.) 11.03.2019