Back
2019 Supreme(Pat) 881
IN THE HIGH COURT OF JUDICATURE AT PATNA
Rajeev Ranjan Prasad, J.
Bank of Baroda through the Chief Manager – Petitioner
Versus
The Union of India through Debt Recovery Tribunal & Ors. – Respondents
CWJC No.10181 of 2016
Decided On : 25-10-2019
For the Petitioner: Mr. Dr. K. N. Singh, Sanjeev Shankar
For the Respondent: Mr. Vitesh Kumar Singh
Headnote:
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 – Section 19(1) – Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 – Section 13(10) – Maintainability of Original Application under Section 19(1) – Application under sub-section (10) of Section 13 of SARFAESI Act of 2002 may be filed by a secured creditor only when Original Application is not pending before Tribunal – If Bank had already preferred an Original Application for determination of it’s dues and issuance of a certificate of recovery and during pendency of Original Application, since Bank had proceeded with SARFAESI action and had recovered Rs. 4.30 crores Bank had rightly filed amendment application to amend it’s claim under Original Application, no fault may be found on part of Bank in pursuing its’ remedy – Bank had filed application under Section 19 of Act of 1993, at this stage application of Bank could not have been thrown out by Presiding Officer of Tribunal merely by referring to sub-section (10) of Section 13 of SARFAESI Act of 2002 – Both Acts are though complementary to each other, are independent in operation and though object of both Acts are same, they operate in their own laid down procedure independently – Impugned judgment passed in OA by Tribunal set aside and OA restored – Tribunal shall proceed to consider Original Application in accordance with law after giving notice to respondents. (Paras 10, 14 and 15)
ORDER :
Heard learned Senior Counsel for the Bank assisted by learned Advocate on record and learned counsel representing respondents no. 2 and 3. Respondents no. 4 to 9 have been though served by ordinary process and the service report is available on the record, they have chosen not to appear before this Court. Learned counsel for the petitioner submits that before the Debts Recovery Tribunal, Patna also they have not put their appearance.
2. The petitioner Bank is aggrieved by and dissatisfied with the order dated 19.05.2016 passed by learned Presiding Officer, Debts Recovery Tribunal, Patna (hereinafter referred to as ‘the Tribunal’) in OA 234 of 2014.
3. By the impugned judgment and order, learned Presiding Officer of the Tribunal has held that the Original Application preferred by the Bank under Section 19(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the ‘Act of 1993’) is not sustainable and is liable to be dismissed. In paragraph ‘21’ of the judgment the learned Presiding Officer of the Tribunal has held as under:-
“21. It is pertinent to mention here that both the Acts operate within the same scheme, but the DRT Act is a general Act, whereas the NPA Action (SARFAESI Act) is the special Act. It is well settled that the Special Act will prevail over the General act.”
4. Having said so, after taking note of the fact that the petitioner Bank has recovered a sum of Rs. 4.30 crores by taking action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (hereinafter referred to as the ‘SARFAESI Act of 2002’ or ‘NPA Act’) the Presiding Officer has taken a view that after realization of Rs. 4.30 Crores by taking SARFAESI action now the Bank can proceed under Section 13(10) of the SARFAESI Act of 2002’ and the Original Application is not maintainable.
5. Learned Senior Counsel for the petitioner Bank submits that the learned Presiding Officer has passed the impugned judgment and order on a complete misconception of law and by ignoring the judicial pronouncements on the subject. Learned Senior Counsel further submits that the Tribunal has not even looked into the Hon’ble Division Bench judgment of this Court in the case of State Bank of India through the Deputy General Manager/Authorised Officer vs. M/s Purnea Cold Storage and Anr. reported in 2013(4) PLJR 753 in which the Hon’ble Division Bench had upturned the judgment of the learned Single Judge and held that the application under the Act of 1993 as well as the SARFAESI action under the SARFAESI Act of 2002 can go together. It is submitted that in paragraph ‘16’ of the impugned judgment the learned Presiding Officer of the Tribunal has in fact taken note of the views which were expressed by the learned Single Judge and were not of the Hon’ble Division Bench of this Court, thereafter, he has committed an error in taking the final view of the matter holding that the Original Application is liable to be dismissed.
6. Learned Senior Counsel further submits that on a bare perusal of the Act of 1993 it would appear that under Section 19 of the Act of 1993 the ‘DRT’ acts as an adjudicatory body whereunder claim of the Bank is determined on the basis of evidences brought on record and a certificate of recovery is issued for the determined amount after following the established procedure under various sub-sections of section 19. It is submitted that no doubt, the Act of 1993 and the NPA Action under SARFAESI Act 2002 both have similar object of recovery of public money but they operate within their own spheres and it has been held that both the Acts are complete code unto themselves. It is submitted that so far as the application under Section 13(10) of the SARFAESI Act, 2002, which the Presiding Officer of the Tribunal has referred to, is concerned, under the SARFAESI Act of 2002 a provision has been made that “where dues of the secured creditor is not fully satisfied with
