PATNA HIGH COURT
Chakradhari Sharan Singh, J.
M/s. Tirupati Storage and Allied (P) Ltd.
and Ors. – Petitioners
versus
United Commercial Bank
and Ors. – Respondents
Civil Writ Jurisdiction Case No.1178 of 2020
Decided on 9.8.2021

IMPORTANT POINTS
(1) Recovery of debt – A person whose case is based on falsehood has no right to approach Court and he can be summarily thrown out at any stage of litigation.
(2) Debts Recovery Tribunal shall not entertain a miscellaneous application for reviewing its own order or recall of an order passed by it affecting merit of case.
(3) Though wrong mentioning of provisions has no bearing on proceeding, but while reviewing of order it is duty of Court to assign reason and point out apparent error that was to be rectified which was completely absent.

Headnote:

(A) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 13(2) – Recovery of Debts and Bankruptcy Act, 1993 – Section 19(25) – Recovery of debt – Demand notice – Debts Recovery Tribunal shall not entertain a miscellaneous application for reviewing its own order or recall of an order passed by it affecting merit of case – Tribunal could not have treated petitioners’ application filed under Section 19(25) of RDDBFI Act to be an application for review under Rule 5A of DRT(Procedure) Rules, 1993 – Deponent of writ petition has made a false statement on oath in writ application that a total sum of Rs. 70 lakhs was disbursed before account was declared as Non Performing Asset – By making this statement and placing reliance on guidelines issued by Reserve Bank of India that no loan amount could have been disbursed after account having been classified NPA, petitioners have attempted to mislead this Court so as to make out a case that no loan amount was disbursed beyond 70 lakhs – Court deprecates conduct of deponent in making false statement on oath in a proceeding under Article 226 of Constitution of India in strong terms, as such proceeding are decided on the basis of affidavits – Deponent has attempted to pollute stream of justice and deserves to be prosecuted in accordance with law for offences punishable under Sections 193, 196 and 199 of Indian Penal Code, which are made out against deponent – It is expedient in interest of justice to direct Registrar General to cause an enquiry in relation to said offences in accordance with provisions under Section 340 of Code of Criminal Procedure – Petitioners’ conduct disentitles it from maintaining application before this Court under Article 226 of Constitution of India on the basis of apparent falsehood – Writ application dismissed with cost of Rs.25,000/-.

Held: It has been argued on behalf of the petitioners that the proceedings under the SARFAESI Act and the RDDBFI Act are independent of each other. There cannot be any gainsaying that the said two sets of enactments have a common objective of improving the recovery of defaulting loans. In the present case, the matter arising out of invocation of the SARFAESI Act had travelled up to Supreme Court, where the Supreme Court noticed non-compliance of an order requiring the petitioners to deposit a sum of Rs. 50 lakhs. The petitioners themselves were ready to deposit a sum of Rs. 50 lakhs as on 25.10.2013, which move was not entertained by the Supreme Court.

The fact remains that the Company did not prefer any appeal against the judgment and order of the DRT dated 17.09.2012 passed in O.A. No. 283 of 2011 as provided under Section 20 of the RDDBFI Act before the appellate Tribunal, which could have been filed within a period of 30 days. Instead, an application was filed for recall of an order passed by the DRT dated 03.09.2013, which was rejected by an order dated 08.11.2012 as not maintainable. The petitioners filed another application, as has been noticed above, for recall of the order dated 17.09.2012, which too was rejected on 04.03.2014. None of the orders were challenged before the appellate Tribunal. Instead, the Company filed an application under Section 19(25) of the RDDBFI Act. I am rather bemused to notice the order, which was passed by the DRT on an application under Section 19(25) of the RDDBFI Act dated 05.05.2014, whereby the amount determined in the judgment of the original application was changed and certain directions were issued.

In response to a query made by this Court, Mr. Sanjeev Ranjan, learned counsel appearing on behalf of the petitioners has argued that the DRT has power of review under Rule 5A of the Debuts Recovery Tribunal (Procedure) Rules, 1993. The Court is afraid, the Tribunal could not have treated the petitioners’ application filed under Section 19(25) of the RDDBFI Act to be an application for review under Rule 5A of the DRT(Procedure) Rules, 1993. Rule 5 A of the Rules permits any party considering itself aggrieved by an order made by the Tribunal, on account of some mistake or error apparent on the face of the record, apply for review of the order to the Tribunal, which had made the order. A sub-rule (2) bars making of an application for review after expiry of a period of 30 days from the date of the order.

I am of the considered view, based on the pleadings and other materials on record that the deponent of the writ petition has made a false statement on oath in paragraph 12 of the writ application that a total sum of Rs. 70 lakhs was disbursed before the account was declared as Non Performing Asset. By making this statement and placing reliance on the guidelines issued by the Reserve Bank of India that no loan amount could have been disbursed after the account having been classified NPA, the petitioners have attempted to mislead this Court so as to make out a case that no loan amount was disbursed beyond 70 lakhs. This statement is falsified on seeing petitioners’ own communication dated 27.10.2009 addressed to the DGM, Zonal Office, UCO Bank, Patna, in paragraph 7 whereof it has been mentioned as under : -

“7. Again disbursement was stopped and after letter for disbursement vide dated 12.02.07, 28.02.07, 14.03.07, 18.07.07 and 19.07.07 (Letters may be produced if required which is with bank receiving), disbursement was made on 01.08.07 – Rs. 5 lacs after stopage period of 6 months which made the Bank contribution to Rs.91.16 lacs and invested margin money is goes to Rs.3.27 cr against the total investment i.e. 3.367 as per Engineer Certificate (Annexure-4).”

Learned counsel for the petitioner Mr. Sanjeev Ranjan has rightly relied on the Supreme Court’s decision in case of Rajendra Singh (supra), which, in no uncertain terms, declares that fraud and justice never run together. The petitioners’ conduct disentitles it from maintaining the application before this Court under Article 226 of the Constitution of India on the basis of apparent falsehood.

I do not find any legal infirmity requiring this Court’s interference with the impugned order. Mr. Ranjeet Kumar Pandey has rightly placed reliance on Division Bench decision of this Court in case of Rajeev Kumar Singh (supra), wherein this Court has deprecated the approach of the Tribunal putting a word of caution for the future while entertaining miscellaneous applications one after another. The Division Bench has clearly said that the Debts Recovery Tribunal shall not entertain a miscellaneous application for reviewing its own order or recall of an order passed by it affecting the merit of the case. I find force in the submission made on his behalf while relying on the Supreme Court’s decision in case of T.P. Vishnu Kumar (supra) wherein the Supreme Court has reiterated the limited scope of judicial review under Article 226 of the Constitution of India in the matters of recovery of dues under the RDDBFI Act, 1993.

For the reasons aforesaid, this writ application is held to be totally frivolous and deserves to be dismissed with cost. This writ application is accordingly dismissed with a cost of Rs.25,000/-(twenty five thousand) to be deposited by the Company with the Bihar State Legal Services Authority, Patna, within six weeks from today with a proof thereof to be submitted with the Registry of this Court within the aforesaid period.

As has been directed above, the learned Registrar General shall ensure conducting an enquiry under Section 340 of the Code of Criminal Procedure for prosecuting the deponent for making the statements on oath, which, in the Court’s opinion, are false. (Paras 35, 36, 37, 43, 47, 49, 52 and 53)

Constitution of India – Article 226 – Scope of Judicial Review – Though wrong mentioning of provisions has no bearing on proceeding, but while reviewing of order it is duty of Court to assign reason and point out apparent error that was to be rectified which was completely absent.

Held: Coming to the impugned order of the appellate Tribunal dated 13.02.2018, it is evident that the Tribunal did notice the fact that M.A. No. 482 of 2012 was not filed by the borrower with a request that the order passed in O.A. be reviewed. It was rather mentioned in the application that their account had been settled in view of the order passed by the High Court in the writ application. The appellate Tribunal has rightly recorded that the said application could not be treated to have been preferred for review of the judgment passed in the O.A.. The appellate Tribunal has rightly pointed out that though wrong mentioning of the provisions has no bearing on the proceeding, but while reviewing of the order it is the duty of the Court to assign the reason and point out the apparent error, that was to be rectified, which was completely absent. The appellate Tribunal further noted, and rightly so, that if the order was to be changed or modified, the earlier order ought to have been set aside because the final order would have been the one passed in the review application. The appellate Tribunal accordingly held the order of the DRT passed in M.A. No. 150 of 2015 to be a nullity. (Para 48)

Result: Writ Application dismissed with costs.