Honble LODHA, J.–We shall refer to the parties thus: respondent No. 1 `the bank, respondents No. 2 and 3, `the borrowers and petitioner, `the guarantor.

(2). The bank filed an application on 22nd December, 2003 for recovery of its dues under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, `the Act of 1993) against the borrowers and the guarantor. The bank also applied for an interim order. On 20th January, 2004, the Debt Recovery Tribunal (for short, `the Tribunal) passed an order restraining borrowers and the guarantor from selling, alienating or disposing of the property secured with the bank including hypothecated goods.

(3). On 15th January, 2004, the bank is said to have made an application for attachment of the property of the guarantor. Notices of the said application are said to have been issued and on 2nd April, 2004, the order was passed by the Tribunal attaching the property of guarantor.

(4). According to the guarantor, the order of attachment dated 2nd April, 2004 was passed by the Tribunal without following the due process prescribed under the Act of 1993. He made an application for review of the order dated 2nd April, 2004.

(5). Initially, by its order dated 6th May, 2005, the Tribunal ordered that the application for review of the order dated 2nd April, 2004 shall be decided along with the original application. The guarantor felt that the application for attachment of its property was made by the bank malafide and the order dated 2nd April, 2004 came to be passed by the Tribunal on misrepresentation of the bank. Consequently, the guarantor made an application purporting to be under Section 22(2)(h) read with Section 19(8) of the Act of 1993 seeking leave of the Tribunal for amendment in the written statement by way of counter claim, claiming damages to the extent of Rs. 20 lacs.

(6). No written reply was filed by the bank to the said application despite the fact that after making the said application, on few occasions, the matter was adjourned. However, the bank opposed the grant of such application by making oral submissions.

(7). On 20th February, 2006, the Tribunal granted the application for amendment and permitted the bank to file written statement to the counter claim/rejoinder within 15 days therefrom and posted the matter for final hearing after one month. By the same order, the Tribunal dismissed the application made by the guarantor for release of the property from attachment.

(8). The bank challenged the correctness of the order dated 20th February, 2006 by filing an appeal before the Debts Recovery Appellate Tribunal (for short, `the appellate Tribunal).

(9). The appellate tribunal after hearing the parties vide its order dated 9th October, 2006 set aside the order of the Tribunal. It is this order which is impugned in the writ petition at the instance of the guarantor.

(10). The order passed by the appellate tribunal is brief and we think it appropriate to extract the same as it is:

"An order passed by the Tribunal below on 20.2.2006 in I.A. 418 is subject matter of challenge before this Tribunal.

2. Heard Mr. V. Seshatiri, counsel for the appellant and Mr. A. Maitra, counsel for the respondents. On the basis of submissions made by both the counsels, in the facts and circumstances, I am of the view that the Tribunal below should not have entertained the application filed by the respondents for amendment of written statement, making counter-claim. It is noticed that the respondents moved the application for making counter-claim on the premise that the appellant-bank misrepresented the facts before Tribunal below and obtained an order for attachment of the property. I do not think a ground of this nature can be urged, seeking amendment in the written statement for making counter-claim inasmuch as the counter-claim and the claim for damages are quite distinct from each other which factor has not been examined by the Tribunal. On that ground alone the impugned order is liable t

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