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PATNA HIGH COURT
Ramesh Kumar Datta, J.
M/s Kailash Art International & Ors. —Petitiones
versus
Central Bank of India, represented by the Chairman cum Chief Managing Director & Ors. —Respondents
Civil Writ Jurisdiction Case No.16665 of 2009
Decided on 11.12.2013
(B) Recovery of Debts Due to Banks and Financial Institutions Act, 1993—Section 31A—Civil Procedure Code, 1908—Order 34 Rules 4 and 5—Recovery of loan—Even a preliminary decree, if capable of quantification and still subsisting on date of application, can give rise to a right to file application under Section 31A (1) of the Act—Proposition that a preliminary decree must become final before it can be executed, would apply in its full rigour only if such a decree is sought to be executed in terms of provisions of the Code of Civil Procedure before Civil Court—Preliminary decree would also come within ambit of words decree or order” as stated in Section 31A—Final decree, preliminary decree would also come within ambit of words “decree or order” as stated in Section 31A—When Section 31A was introduced in the Act, there was no subsisting decree or order of Court which could be executed under law by respondent-Bank—That being the position no right could accrue to Bank merely because of enactment of Section 31A since decree had become barred from execution by passage of time and could not form basis for filing application for an order of recovery under Section 31A (1)—Debts Recovery Tribunal could not have entertained application filed by respondent-Bank and to have passed any valid legal order for recovery on the basis of such application—Impugned orders as also recovery certificate issued by Debts Recovery Tribunal quashed. (Para 38)
(C) Recovery of Debts Due to Banks and Financial Institutions Act, 1993—Section 31A—Civil Procedure Code, 1908—Section 11—Execution of decree—Bar of res judicata—Successive applications for execution are not barred in case earlier execution case had been dismissed for default subject, to period of limitation prescribed for filing execution case—Question of res judicata so far as filing of successive execution cases is concerned, would lose all significance—Successive execution applications are maintainable within period of limitation—Fact that earlier execution case had been dismissed for default not mentioned in application under Section 31A, would not have materially affected result of case—However, same does amount to false statement on affidavit before Tribunal. (Paras 42 and 44)
Ramesh Kumar Datta, J.— Heard learned counsel for the petitioners and learned counsel for the respondent-Central Bank of India. The petitioners have filed the present writ application for quashing of the order dated 31.8.2009 passed by the Presiding Officer, Debt Recovery Tribunal, Patna in M.A. No. 07/2009 as well as the Recovery Proceeding pending before the Debt Recovery Tribunal, Patna before the Recovery Officer in R.P. Case No. 16/2007 and notice dated 27.3.2008 issued by the Recovery Officer under Section 29 of the Recovery of Debts Due to Bank and Financial Institution Act, 1993 (RDDBFI Act, in short) as also the order dated 19.4.2007 passed in OA (Ex.) Case No. 15/2006 by the Presiding Officer of the Tribunal. The facts of the case, relevant to the adjudication of the present matter, are that on 7.6.1983 the respondent-Central Bank of India, Danapur Branch sanctioned Cash Credit Loan Limit of Rs. 70,000/- in favour of petitioner No.1, a proprietorship concern owned by the petitioner no. 2, Saryug Prasad Singh. The loan was granted on the guarantee of Lal Kishun Singh, father of petitioner no. 2, who is stated to have died on 2.2.2003 and Smt. Sabitri Devi, petitioner No.3. On default being committed by the loanee, the Central Bank of India filed Title Mortgage Suit No. 572/1987 in the Court of Subordinate Judge-I, Danapur claiming Rs. 1,49,628.89. The suit, upon transfer, was decreed ex-parte by Subordinate Judge-III, Danapur by his judgment and decree dated 21.4.1995. It is the stand of the petitioner that the decree dated 21.4.1995, being a preliminary mortgage decree, no steps were taken by the Bank for getting the final decree and straightaway on 12.6.1996, the respondent-Bank filed Execution Case No. 05/1996 in the Court of the Subordinate Judge-III, Danapur on the basis of the said ex-parte preliminary mortgage decree claiming an amount of Rs. 5,40,634/- after including interest and adding the same in the principal. It is alleged that the petitioner no. 2 learnt about the said execution case for the first time on 24.8.1996 and also on inspection made about the ex-parte decree passed in Title Mortgage Suit No. 572/1987, the petitioners filed Miscellaneous Case No. 9/1996 on 14.10.1996 under Order IX Rule-13 of the Code of Civil Procedure to set aside the ex-parte decree. On 27.11.1996 Misc. Case No. 9/1996 was filed under Sections 47 and 151 of the Code of Civil Procedure challenging the maintainability of the execution case and the preliminary mortgage decree as not executable, apart from other grounds. A petition for stay of the execution case was also filed on 29.11.1996. The Bank filed objection in which the stand taken was that the execution case was filed after preparation of decree which is a composite decree for realization of the dues and also for mortgaged properties and the preliminary decree is already on the record and there is no final decree yet to be filed nor the opposite party had to await for anything and thus the execution case has been filed with legal provisions of the Code of Civil Procedure which is maintainable and operative, apart from other grounds raised therein. The Execution Case No. 05/1996 was however, ultimately dismissed for default on 17.4.2004.
2. In the meantime, the judgment debtor no.4, namely, Lal Kishun Singh, one of the guarantors, died on 2.2.2003 and no steps for substitution were taken by the Bank in the execution case. Thereafter on 6.3.2006 the Bank filed an application under Section 31A of the RDDBFI Act before the Debts Recovery Tribunal, Patna for grant of a certificate amounting to Rs. 18,99,760.69 being the total of (i) decreed amount of Rs. 1,49,628.89 plus (ii) interest @ 14% per annum with quarterly rests from 1.2.1998 to 31.12.2005 amounting to Rs. 17.27,177.80 plus (iii) amount of cost awarded with subsequently incurred Rs. 22,954.00 claiming further interest @ 14% per annum with quarterly rests from 1.1.2006 till its realization against the respon
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