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2025 Supreme(Gau) 821
THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
DEVASHIS BARUAH, J.
Ruhul Amin, S/o. Bapjan Ali – Petitioner
Versus
Punjab And Sind Bank Of Assam, Represented By Its Branch Manager And Ors. – Respondents
CRP(IO) No.198 Of 2025
Decided On : 27-06-2025
For the Petitioner:Mr. B. Hussain, Advocate
For the Respondents:Mr. M. Sharma, Advocate
The right to file a defense is a substantive right, requiring reasoned decisions from courts to ensure fairness and justice.
Headnote:(A) Limitation Act, 1963 - Section 5 - Debt Recovery Tribunal (Procedure) Rules, 1993 - Delay in filing written statement - Petitioner's applications for condoning delay and recalling an order were rejected without proper reasoning - Court emphasized the significance of the right to file a defense as a substantive right. (Paras 2-5, 11, 15)
(B) Judicial discretion - Presiding Officer's decision must be reasoned and fair; lack of justification in rejecting the application led to a violation of principles of justice. (Para 15)
Facts of the case:
The petitioner faced challenges in submitting his written statement due to reliance on counsel, resulting in denial of the right to present a defense in Debt Recovery Tribunal proceedings.
Findings of Court:
The order denying the petitioner the opportunity to file written statements was set aside, allowing for a new submission but imposing a penalty.
Issues: Whether the Tribunal acted properly in denying the right to file defense based on previous counsel's inaction.
Ratio Decidendi: The court highlighted the necessity of providing reasons for judicial decisions and affirmed the importance of the right to defend one's case in ensuring justice.
Result: Application allowed with conditions set for future submissions.
| Table of Content |
|---|
| 1. application for condonation of delay. (Para 2 , 5 , 6) |
| 2. rules for filing written statements. (Para 3 , 4) |
| 3. petitioner's claim of attorney negligence is a significant factor influencing the delay in filing. (Para 7) |
| 4. the court must consider fairness in procedural adherence versus the right to defense. (Para 8 , 9) |
| 5. operator's reasoning must be substantiated. (Para 11 , 15) |
| 6. justice and timely defense rights. (Para 12 , 16) |
| 7. final judgment and orders. (Para 17) |
JUDGMENT :
(DEVASHIS BARUAH, J.)
Heard Mr. B. Hussain, the learned counsel appearing on behalf of the Petitioner and Mr. M. Sharma, the learned counsel appearing on behalf of the respondent No.1.
2. The petitioner herein has invoked the supervisory jurisdiction of this Court challenging the order dated 07.03.2025 whereby the application filed under Section 5 of the LIMITATION ACT , 1963 for condoning the delay in not filing the written statement on 27.02.2024 and further application seeking permission to file the written statement by recalling the order dated 27.02.2024 were rejected.
3. This Court has duly perused the Debt Recovery Tribunal (Procedure) Rules, 1993 (for short ‘the Rules of 1993’) wherein the procedure for filing the application have been stipulated in Rule 4 and 5. For the purpose of filing the written statement and other documents by the defendant or filing a reply by the applicant to the written statement, Rule 12 of the Rules of 1993 stipulate the manner.
4. It is seen from Sub-Rule (1) of Rule 12 of the Rules of 1993 that the defendant may within a period of 30 days from the date of service of summons, file two complete sets of written statement including claim for set- off or counter claim, if any, along with the documents in paper book form. Sub-Rule (3) of Rule 12 of the Rules of 1993 further stipulates that if the defendant fails to file the written statement of his defence, including claim, for set off or counter claim under Sub-Rule (1), if any, within the period of 30 days, the Presiding Officer may in exceptional cases and special circumstances to be recorded in writing extend the period by such further period not exceeding 15 days. Sub-Rule (7) of Rule 12 of the Rules of 1993 stipulates that if the defendant or the applicant as the case may be fails to file the written statement or reply as specified in the forgoing Sub-Rules of Rule 12 of the Rules of 1993, the Tribunal may proceed forthwith to pass an order on the application as it thinks fit.
5. In the backdrop of the procedure stipulated in Rule 12 of the Rules of 1993, let this Court duly take note of the order dated 27.02.2024. It appears from the said order that on 28.11.2023, the petitioner herein was represented by a proxy counsel by filing Vakalatnama and sought for time for filing written statement cum evidence on affidavit, which was permitted. Thereupon, the matter was fixed on 11.01.2024 however no written statement was filed by the petitioner and other defendants. Again when the matter was listed on 27.02.2024, the written statement cum evidence on affidavit was not filed by the petitioner and other defendants and it is under such circumstances, the right of the petitioner and other defendants to submit the written statement cum affidavit of witnesses was closed.
6. This Court further takes note of the reasons assigned by the petitioner as to why the written statement cum affidavits of witnesses could not be filed as mentioned by the petitioner in the application seeking recall of the order dated 27.02.2024. A perusal of the said application filed by the petitioner reveals that the petitioner had taken a loan of Rs.35,00,000/- from the respondent No.1 herein on 13.04.2015 and the said loan was repayable in 252 EMIs i.e. 21 years till 2036. Upon coming to learn about the case, on the basis of the paper publication, the petitioner herein appointed an advocate to defend his case who appeared on 28.11.2023 and assured the petitioner that steps would be taken acco
