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2004 Supreme(Cal) 472
High Court Of Calcutta
AMITAVA LALA
CHANDA ENGINEERS (INDIA) LTD - Appellant
Versus
U.C.O.BANK - Respondent
C. O. 349 Of 2004
Decided On : 07/14/2004
A.K.CHATTERJEE, K.DAROKA, N.K.SARAF, NIMISH MISHRA, S.BHATTACHARJEE, S.DAS GUPTA, Vishal Jain
Headnote:
Whether the Debts Recovery Tribunal (DRT) had the jurisdiction to reduce the certificate amount already awarded in favour of the Bank by way of settling the dispute amongst the parties, on the reasoning that the settlement was done in terms of the guidelines laid down by the Reserve Bank of India. Whether the DRT had the power to withdraw a certificate, cancel a certificate, grant payment of certificated amount in instalments, correct clerical or arithmetical mistakes in the certificate, or make such orders to give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.
Fact of the Case:
The petitioner filed an application under Sections 26 and 27 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rule 18 of the relevant Rules made for the purpose in effect for compromise settlement. The petitioner offered Rs. 40 lac for settlement which was enhanced up to Rs. 45 lac on 27th March, 2002. On 2nd August. 2002 Tribunal, without going into the facts that there was an interim order of stay passed by the Court and amount equivalent to 5% was deposited, was pleased not to go to the controversy of the deposit of 5% and directed to proceed with the Misc. Application on 16th August. 2002 and dismissed. On the very same day certificate was directed to be issued on the basis of the final order dated 20th February. 1997. On 19th August, 2002 certificate was issued. On 26th August, 2002 recovery proceeding was initiated under R.C. No. 35 of 2002. On 3rd September, 2002 petitioner filed an application under Sections 26 and 27 of the Act read with Rule 18 of the relevant Rules made for the purpose in effect for compromise settlement.
Finding of the Court:
The DRT has taken the matter lightly and ultimately by the process arrived at a perverse finding. At first the Tribunal and the Appellate Tribunal under the particular Act should remember what is the scheme and the legislative intent of the Act.
Issues: 1. Whether the DRT had the jurisdiction to alter or reduce the certificate amount? 2. Whether the Bank had shown any interest whatsoever to settle?
Ratio Decidendi: 1. The DRT has a power to withdraw a certificate, cancel a certificate, grant payment of certificated amount in instalments, correct clerical or arithmetical mistakes in the certificate, or make such orders to give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. 2. When Bank had proceeded to settle within the policy and the DRT received the same and tried to proceed with the true spirit of the Act, such proceeding should have b,een taken as 'pending' proceeding.
Final Decision: Both the orders of DRT and DRAT are set aside and the matter is remitted back to the DRT.
Amitava Lala, J.
1. This is an application under Article 227 of the Constitution of India. This application has arisen out of an order passed by the Debts Recovery Tribunal (D.R.T.) followed by an appellate order passed by the Debts Recovery Appellate Tribunal (D.R.A.T.). Although the parties argued at length in the merit but at the end of the argument Mr. Ajoy Krishna Chatterjee, Learned Senior Counsel, appearing for the respondent Bank, raised a point about the scope' and ambit of the Article 227 of the Constitution of India in this respect. Possibly he wanted to see no stone unturned. Even then I am not inclined to give incidental value to such part of the argument because it may ultimately touch the foundation of the jurisdiction of the Court. Articles 226 and 227 are plenary powers of the High Court under the Constitution of India. Such plenary power of the High Court is exhaustive in nature. The same cannot be curtailed. Even then the Writ Court in its wisdom tries to avoid the disputed question of fact having alternative efficacious remedy open. Departure, if any, is the exception but not the rule. A High Court as a whole follows such principle.
2. So far as the power of Article 227 is concerned, in earlier, High Courts hardly got any opportunity to apply the power of su- perintendence under it over the Lower Courts and Tribunals, Number of litigations were much less. Lower Courts had enough opportunity to go through procedural propriety. There was no mushroom growing of Tribunals. Only few traditional Tribunals were existing. Provision was normally applied where there was neither any scope of appeal nor any scope of usual revision. But since when various Tribunals either by way of Constitutional amendment or under the respective statutes are formed and also revisional Jurisdictions are curtailed by way of amendment of the Code of Civil Procedure particularly in respect of the interlocutory matters, number of applications under Article 227 of the Constitution of India have been increased. Therefore, if the totality of the scenario is projected it will be seen that from when several jurisdictions of the High Courts are curtailed number of making applications under Article 227 of the Constitution of India have been increased. If this is the trend then formation of Tribunals for the sake of people is a big question for the legislature. It is high time to think whether the installation of various Tribunals is really minimizing number of disputes or increasing the number of disputes. This discussion is not academic - why not - discussions hereunder will say.
3. Power of superintendence under Article 227 of the Constitution of India is dependant upon various circumstances of individual cases. No straight jacket formula can be applied. In Vadivelu v. Sundaram, according to me, the judgment supported the order passed by the Learned Single Judge of the High Court under Article 227 of the Constitution of India and the appeal was dismissed. In doing so, the Supreme Court held that when there is an error of jurisdiction or flagrant violation of law laid down by this Court by exercising revisional power, the Court can set aside the order passed by the Tribunal to do justice between the parties. The illegality committed by the Election Tribunal has been corrected by the limited order. There the Counsel appearing for the appellant had argued as follows : "The powers of the Revisional Court are not as wide as powers of the Appellate Court, and, therefore the Learned Single Judge should not have set aside the order passed by the Election Commission."
4. The Supreme Court held "we do not find any force in this contention". Then the Supreme Court made an explanation in respect of the error of jurisdiction or flagrant violation of the law. Therefore, the question of error of jurisdiction or flagrant violation of law cannot be the principle minus factual aspect of the matter. Secondly, the Court held that the order can be set aside under A
