The legislative intent for early adjudication of claims of Banks and Financial Institutions should not be defeated on technical grounds.

Mr. S.K. Mohapatra, Presiding Officer :This pertains to the petition filed by the defendant No. 2 on 3.12.2001 questioning the jurisdiction of this Tribunal to decide the instant Original Application No. 151/2000 arising from Execution (PT) Case No. 115/98.

2. Heard the arguments of parties and I have also perused the petition and written arguments filed by the applicant Bank.

3. The main contention of the applicant is that the Execution (PT) Case No. 115/98 (Bank of India v. M/s Esspo Sales and Others) has already been dismissed by this Tribunal on 13.9.2000 and, therefore, filing of the original application arising out of the said Execution (PT) No. 115/98 cannot arise. The applicant has also raised objection on the ground of limitation and on the count of principle of res judicata.

4. Applicant Bank on the contrary has contended that their claim filed initially before the Certificate Officer has not yet been adjudicated upon on merit, and, therefore, this Tribunal should adjudicate the claim of Bank. It has also been inter alia contended that on transfer of the certificate proceeding the same has been wrongly registered as execution proceedings and for the mistake of the Court parties ought not to suffer. It is further the case of the applicant that the objection on the ground of res judicata and limitation is not applicable to the present claim.

5. For proper appreciation of the case, the relevant facts are placed below in brief. The applicant Bank had filed a Certificate Case No. 1170/96-97 on 11.12.1995 before the Certificate Officer, Muzaffarpur for recovery of Rs. 13,26,569.50 from the respondents. The applicant had paid the Court-fee at the time of filing the Certificate case. Consequent to the implementation of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 the applicant Bank filed a petition for transfer of the certificate case before DRT, Patna. Admittedly the Certificate Officer in the certificate case has not signed the Certificate, which will reveal that the Certificate Case was pending for adjudication.

6. In the aforesaid factual scenario, since, the claim of Bank made in the Certificate Case had not been duly adjudicated upon, on transfer of record, the same should have been registered as PT Case for necessary adjudication of claim by the Tribunal. However, there was a mistake by the Tribunal itself by way of registering the Certificate Case as Execution Case. Consequently, in the absence of Certificate duly signed by the Certificate Officer, the said execution proceeding was dismissed by the learned Presiding Officer on 13.9.2000. Needless to say that unless and until a claim is duly adjudicated upon, execution proceeding consequent thereto, cannot start. Moreover under Section 31(2)(b) Tribunal can proceed from the stage reached before such transfer or any earlier stage only, and not from subsequent execution stage. Therefore, in the instant case, when there should not have any execution proceeding, the dismissal of execution proceeding was only consequential to the wrong registration of case by the Registry of the Tribunal. The claim of the Bank is public money and ought not to be thrown away, more so due to the mistake of Court. The Bank has filed their claim before the Certificate Officer along with the requisite fee as per law. On transfer of the same to the DRT, Patna, the case should have been duly registered for adjudication of the claim on merit.

7. As regards objection on the ground of res judicata, the undisputed fact remains that the original claim filed in the certificate case has not been adjudicated upon on merit. The judgment dated 13.9.2000 relied on by the defendants is only consequential to the wrong registration of the certificate case, on transfer, as execution case. Admittedly, there was no certificate i.e. decree in that case. In other words, there was no earlier decision in the matter. A plea of res judicata can only be founded on a valid certificate of a Ce