The central legal point established in the judgment is that in the absence of a pending counter claim and with the delay in executing a decree, the court may dismiss a claim for staying the proceeding.

S.J. Mukhopadhaya, J.

This writ petition has been preferred by the borrower, Seetha Industries, against order dated 24th June, 2004, passed by the 1st respondent, Debts Recovery Appellate Tribunal, Chennai, (hereinafter referred to as DRAT) in T.A. No.1603/97. By impugned order, DRAT refused to recall its earlier order dated 19th June, 2004, and, thereby, refused to review the earlier order.

2. The brief facts of the case is that the borrower obtained medium term loan of Rs.2.70 lakhs and a working capital loan of Rs.7.50 lakhs from the respondent, State Bank of India, (hereinafter referred to as the Bank) on 2nd Jan., 1984.. On the ground of default in payment and drawal of amount exceeding the limit, the bank initially stopped the transaction and later on, instituted suit in O.S. No.135/87 on the file of Sub Court, Villupuram, on 31st July, 1987, claiming a sum of Rs.13,83,362.45 against the borrower-petitioner as well as the guarantor. The suit was decreed on 3rd July, 1991 setting the borrower and guarantors exparte. The borrower-petitioner had filed a petition to set aside the exparte decree in I.A. No.808/91 wherein conditional order was passed on 18th Aug., 1991 directing the borrower to pay a sum of Rs.1 lakh on or before 18th Sept., 1991, but the borrower having failed to pay the amount, the preliminary decree dated 3rd July, 1991, became final.

3. The bank filed I.A. No.22/92 for passing final decree in O.S. No.135/87. In the meantime, one of the guarantor, Mr.Kuppusami, who was the 2nd defendant in the suit having died and, therefore, application for substitution of legal heirs was filed by the bank. The borrower initially filed transfer petition before this Court to transfer the suit to this Court for trial along with C.S. No.769/89. Pending the transfer petition, stay of further proceeding in O.S. No.135/87 was obtained and, thereby, the suit could not be finally decreed. Transfer petition was subsequently dismissed by this Court on 28th Aug., 1995, preliminary decree having passed on 3rd July, 1991 and in the meantime, the Debts Recovery Tribunal (hereinafter referred to as DRT) having been constituted, the suit – O.S. No.135/87 stood transferred on the file of DRT u/s 31 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as RDDB & FI Act) and registered as T.A. No.1063/97. Notice were sent to the parties in the T.A. and after appearance the petitioner filed a petition to stay the proceeding on the ground that it has moved before the National Consumer Disputes Redressal Commission in O.A. No.30/96, wherein certain counter claim has been made. The National Consumer Disputes Redressal Commission dismissed the application preferred by the petitioner, there being other remedy, which was affirmed by the Supreme Court in Civil Appeal No.8674/02 preferred by the petitioner, which was dismissed on 17th April, 2003.

4. The suit having transferred before DRT, the bank filed form showing the details of payment to be made, as required u/s 19. After the Supreme Court judgment, the petitioner filed a review petition in I.A. No.418/03 and again requested to stay the proceeding to file a counter claim, which was dismissed by DRT on 13th Nov., 2003, as not maintainable. The writ petition against the said order preferred by petitioner was also not entertained, there being alternative remedy of appeal. Before DRAT, the petitioner preferred an appeal for stay of the proceeding, which was rejected on 19th May, 2004. Again a review petition was filed before DRAT, which was dismissed on 24th June, 2004.

5. Learned counsel appearing on behalf of the petitioner submitted that the suit should be stayed as it is to prefer a counter claim. In fact, an original application has been filed in 2003, but it has not been registered for non-payment of requisite court fee. On the other hand, according to counsel for the bank, inspite of decree passed against the petitioner in 1991, for