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2011 Supreme(Guj) 467
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.J. MUKHOPADHAYA, J.B.PARDIWALA
VISION ORGANICS LTD & 3 - Petitioner(s)
Versus
UNION OF INDIA THROUGH SECRETARY & 1 - Respondent(s)
SPECIAL CIVIL APPLICATION No. 7970 of 2011
Decided on : 17/08/2011
MR SP MAJMUDAR for Petitioner(s):1 - 4.MR PP MAJMUDAR for Petitioner(s): 1 - 3.
MR PS CHAMPANERI for Respondent(s): 1,
DELETED for Respondent(s): 2,
Headnote:
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 22 and 36 - Debt Recovery Tribunal - Rules (1993) ,Rules 5A(2), 7(2) - Petitioner has challenged validity and provisions of Appendix enclosed with Rule of Debt Recovery Tribunal - Petitioner obtained loan from bank - Having failed to recover amount Banks filed Original Applications -Held, Debt Recovery Tribunal applications have been finally decided common judgement decreeing applications in favour of Banks and against petitioners judgement is not applicable in present no substantive right of review has been created in favour of one or other individual except - Tribunal and Appellate Reason no fee has been prescribed R.D.D.B., for preferring an application of review - substantive right to prefer an application for review has been created in favour of an aggrieved person DRT Rules hold that rule making authority has jurisdiction to prescribe a period of limitation for acceptance of review application in no manner is in conflict - Period of limitation prescribed sub-Rule fee prescribed for entertaining an application for DRT Rules cannot be held to be ultra vires - Period of limitation for filing same prescribed - fee for entertaining review petition - Rules not violative of provisions of and Rules review is dismissed being barred by limitation - Fees paid under cannot be asked for refund - Petition dismissed
JUDGMENT
S.J. MUKHOPADHAYA, J.
In this writ petition, the petitioner has challenged the validity of Rule 5A(2) and provisions made at Sr.No.3(b) of the Appendix enclosed with Rule 7(2) of the Debt Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as the DRT Rules, 1993’). Further prayer has been made to direct the 2nd respondent Registrar, Debt Recovery Tribunal, Ahmedabad, to refund the fee of Rs.60,000/- paid at the time of filing of the review applications.
2. The brief facts of the case are that the petitioner obtained loan from I.D.B.I. Bank, ICICI Bank and Bank of Baroda. Having failed to recover the amount, aforesaid Banks filed Original Applications, viz. OA No. 274/01, OA No. 326/01, OA No. 192/01 and OA No.300/01 u/Sec.19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as `the R.D.D.B. Act, 1993’) before the Debt Recovery Tribunal No.2, Ahmedabad. All the aforesaid applications have been finally decided by the D.R.T. II, Ahmedabad, by a common judgment dated 27th September 2010 decreeing the applications in favour of the Banks and against the petitioners.
3. Referring to the decision of the Supreme Court in Mohd. Akram Ansari v. Chief Election Officer reported in AIR 2008 SC (Supp) 1247, the petitioner preferred review applications u/Sec.22(2)(e) of the R.D.D.B. Act, 1993, before the Debt Recovery Tribunal. The review applications have been dismissed by the Debt Recovery Tribunal II, Ahmedabad, by a common order dated 31st May 2011, being time-barred under Rule 5A(2) of the DRT Rules, 1993.
4. For each of the review applications, the petitioner deposited court fee of Rs.15,000/- as stipulated under Sr.No.3(b) of Rule 7(2) of the DRT Rules, 1993. The review applications having been rejected on the ground of limitation, the petitioner has challenged the validity of Rule 5(A)(2) and the fee as prescribed under Sr.No.3(b) of Rule 7(2), with consequential relief for refund of Rs.60,000/-, i.e. Rs.15,000/- for each case as were deposited with four review applications.
5. Learned counsel for the petitioner would contend that Rule 5(A)(2) and provision at Sr. No. 3(b) of the Appendix with Rule 7(2) of the DRT Rules, 1993, are arbitrary, violative of Articles 14 and 19(1)(g) of the Constitution of India. The Central Government has no jurisdiction to frame such Rule u/Sec.36 of the R.D.D.B. Act, 1993, such power having not delegated under the said provision.
6. He would further contend that the fee as prescribed under Sr. No.3(b) of Rule 7(2) of the DRT Rules, 1993, for entertaining an application for review, being without jurisdiction, is illegal and fit to be set aside. Reliance was also placed on Delhi High Court decision in Shri Bal Kishan Bansal v. The Jammu & Kashmir Bank Ltd. W.P.(C) 7205/2007 decided on 25th August 2009.
7. While assailing Rule 5A(2), learned counsel for the petitioner would contend that in absence of any guideline laid down u/Sec.36(e) of the R.D.D.B. Act, 1993, the Central Government has no jurisdiction to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the R.D.D.B. Act, 1993 itself. He placed reliance on Supreme Court decision in Kunj Behari Lal Butail v. State of Himachal Pradesh reported in 2000(3) SCC 40 : AIR 2000 SC 1069.
8. Mr. P.S. Chhapaneri, learned Asst. Solicitor General appearing on behalf of the Central Government while opposing the prayer submitted that the petitioner having availed the opportunity of review under Rule 5A(2) of the DRT Rules, 1993 and having already deposited the requisite fee in terms with the prescription made under Sr.No.3(b) of Rule 7(2), it cannot challenge the orders indirectly by challenging the substantive provisions of the Rules. He would further contend that the power of review having been vested with the Debt Recovery Tribunal under
