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1997 Supreme(Cal) 256
High Court Of Calcutta
BIJITENDRA MOHAN MITRA
UNITED BANK OF INDIA - Appellant
Versus
GOLAM HOSSIAN HALDER - Respondent
C. O. 612 Of 1997
Decided On : 06/25/1997
D.K.Pal, KABIR GHOSH, R.M.ROY CHOWDHURY, SUBRATA ROY, UDAY SANKAR CHATTERJI
Order 22 of the CPC applies to proceedings before the DRT and the DRT must follow this procedure when dealing with the death of a party.
Headnote:
DEBTS RECOVERY TRIBUNAL - SUBSTITUTION OF DECEASED PARTY - PROCEDURE - APPLICABILITY OF ORDER 22 OF THE CODE OF CIVIL PROCEDURE - NATURAL JUSTICE - INTERPRETATION OF SECTION 22 OF THE RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993.
Fact of the Case:
The petitioner, a Bank, challenged the orders of the Debts Recovery Tribunal (DRT) rejecting its applications for substitution of a deceased defendant and for condonation of delay in filing the substitution application. The DRT held that the Bank did not take any steps for substitution till 8.7.96 and did not give any explanation for the delay.
Finding of the Court:
The court held that the DRT erred in not applying Order 22 of the Code of Civil Procedure (CPC) to the case. It held that Order 22 provides a well-thought-out procedure for dealing with the death of a party and that the DRT should have followed this procedure.
Issues: 1. Whether Order 22 of the CPC applies to proceedings before the DRT. 2. Whether the DRT erred in rejecting the Bank's applications for substitution and condonation of delay.
Ratio Decidendi: 1. Section 22(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 provides that the DRT shall not be bound by the procedure laid down by the CPC. However, Section 22(2) provides that the DRT shall have the power to regulate its own procedure, including the places at which it shall have its sittings. 2. The court held that the DRT's power to regulate its own procedure does not mean that it can ignore the well-established principles of natural justice. Natural justice requires that parties be given a fair opportunity to be heard and that their rights be protected. 3. Order 22 of the CPC provides a fair and just procedure for dealing with the death of a party. It sets out a specific time period for filing a substitution application and provides for the condonation of delay in certain circumstances. 4. The court held that the DRT should have applied Order 22 to the case and that it erred in rejecting the Bank's applications for substitution and condonation of delay.
Final Decision: The court set aside the DRT's orders and directed it to reconsider the matter afresh in accordance with the directions contained in the judgment.
( 1 ) THE instant petition under Article 227 of the Constitution of India is directed against Order No. 13 and Order No. 17 respectively dated 7-1-97 and 18-2-97 passed by the Presiding Officer, Debts Recovery Tribunal, Calcutta in O. A. No. 189 of 1995. So far as the first order being Order No. 13 is concerned it appears that defendant No. 2 figuring in the proceeding was impleaded in the capacity of a guarantor of the borrower and he being the son of defendant No. 2 cannot but be recorded as one of the heirs or legal successors of the deceased. The said defendant No. 1 in his capacity as legal successor of defendant No. 2 is found on record in proceeding. It appears from the record mentioned in the impugned order that the same shows that the learned Lawyer for the respondent No. 1 informed the Tribunal about the death of said respondent No. 2 on 7. 96. The said respondent No. 2 died on 24. 1. 96 and thereafter the applicant Bank was directed to have steps for substitution in respect of the deceased respondent No. 2 some caustic remarks were made in the first impugned order by the Presiding Officer of the Debts Recovery Tribunal that the applicant Bank did not care to take any steps till 8. 7. 96 and no explanation whatsoever has been 0 given in the petition for condonation of delay as to why delay in filing the petition for substitution would not be condoned. The formulation of the premises by the Debts Recovery Tribunal is questioned before this Court and it has been submitted by Mr. Roy, the learned Advocate appearing on behalf of the Bank that there is no basis for drawing an inference to make such caustic remarks when the premise itself requires scrutiny as to wherefrom the Debts Recovery Tribunal gets the idea of condonation of delay without specifying the period within which substitution petition is required to be filed. This Court being a Court of superintendence is required to regulate the day to day procedure on adjudication of the Debts Recovery Tribunal and it cannot abdicate its authority of superintendence over it and adjudicating forum cannot be turned into a breeding ground either of anarchy or of free play of whims under the level of the epithet of omnibus nomenclature of natural justice which is supposed to have a definite or precise connotation. The entire procedure as laid down under a selfcontained statute, namely, the Recovery of the Debts due to the Bank and Financial Institution Act, 1993 is required to be modulated in terms of Section 19 (1) coupled with Clause (2) thereof and also the guiding pari materia appears to be the application of principles of natural justice as laid down in Section 22. It is significant to mention that apart from elongation of the pith and substance of the principle of doctrine of natural justice as laid down from the earliest judicial decision down to the latest one and it is needless to mention that doctrine of natural justice finds its fruition when it is required to be synthesised with principle of equity, justice and good conscience. Whenever justice to be meted out by an adjudicating forum, it must dispense justice in accordance with procedure as procedures are handmade of justice. It is relevant to refer to a celebrated observation of Aristotle that in an adjudicating process, rule of law is preferable to that of rule of man however high pedestal in which such person may be placed. Anybody placed in the pedestal of justice in subservient to rule of law and in the name of natural justice one cannot be allowed to embark into a journey of demonstration of whims and anarchy. For that the entire process is required to be modulated and guided by procedure in civil adjudication in whatsoever nature whether it is a money claim or not, we in the judicial domain are groomed up in tradition for application of the basic pari materia, namely, the Evidence Act, Limitation Act and the Code of Civil Procedure. Here, before the Debts Recovery Tribunal, there
