Advocates:
['UDWADIA', 'UDESHI', 'WADIA GHANDY', 'CO']

AJN

00-OS-1642.03

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1642 OF 2003

ISIBARS LIMITED, a Company,

incorporated

under

the

Companies Act, 1056, having its

Registered Office at C-63, MIDC

Estate, T.T.C. Area, Turbhe, Navi

Mumbai – 400 705.

)

)

)

)

)

) ... Petitioners

Versus

1.

COMMERZBANK AG, a body

corporate constituted and

existing in accordance with

the Laws of Federal Republic

of Germany and carrying on

business as Bankers, having

their Registered Office at

Frankfurt/Main (HRB32000)

and their erstwhile Mumbai

Branch Office at 12-B, Free

Press House, 215, Free Press

Journal Road, Nariman Point,

Mumbai – 400 021.

)

)

)

)

)

)

)

)

)

)

)

)

)

2.

The Hon'ble Chairperson,

Debt Recovery Appellate

Tribunal, Mumbai.

)

)

) ... Respondents

Mr. Suneep Sen with Mr. Kunal Damle i/b Udwadia Udeshi

for the petitioners.

Mr. Aspi Chinoi, senior counsel with Mr. Bhavik Manek i/b

Wadia Gandhy & Co. for the respondents.

AJN

00-OS-1642.03

2

CORAM: MRS. RANJANA DESAI &

R.G. KETKAR, JJ.

DATE ON WHICH THE JUDGMENT IS

RESERVED : 9TH MARCH, 2011.

DATE ON WHICH THE JUDGMENT IS

PRONOUNCED: 23RD MARCH, 2011.

JUDGMENT :- (Per Smt. Ranjana Desai, J.)

1.

Respondent 1 is a banking corporation incorporated

under the laws of Germany having its Head Office at

Kaizerplatz, Frankfurt, Germany. The petitioner-company

had taken certain credit facilities from respondent 1. The

petitioners did not clear the outstanding dues and,

therefore, respondent bank filed Original Application No.

153 of 2001 for recovery of the said amount in the Debts

Recovery Tribunal II, Mumbai (for short, “the DRT”).

2.

It is the petitioner's case that after they filed their

written statement in January, 2002, they came to know

from the newspaper reports that respondent 1 had

surrendered its banking licence in India and had stopped

its banking operation in India. The petitioners therefore

AJN

00-OS-1642.03

3

filed a miscellaneous application and called upon

respondent 1 to produce the banking licence. Respondent

1 in its reply admitted that it had surrendered its banking

licence. The petitioners, therefore, filed a miscellaneous

application seeking dismissal of the original application on

the ground that respondent 1 was no longer a bank as

defined under the Recovery of Debts Due to Banks and

Financial Institution Act, 1993 (for short, “the RDDB

Act”).

3.

Respondent 1 opposed the said application. It

contended that it was a bank at the time of filing of the

original application and, therefore, the DRT had

jurisdiction to entertain and decide the application. The

Presiding Officer by his order dated 13/3/2003 dismissed

the said application. Being aggrieved by the said order,

the petitioners preferred an appeal before the Debts

Recovery Appellate Tribunal (for short, “the DRAT”). By

order dated 30/5/2003, the DRAT dismissed the said

appeal. Hence, this writ petition.

AJN

00-OS-1642.03

4

4.

We have heard, at some length, Mr. Sen, learned

counsel appearing for the petitioners. Counsel submitted

that respondent 1 having surrendered its licence, it was

no longer a bank for the purpose of RDDB Act. Counsel

pointed out that under Section 2(d)(i) of the RDDB Act,

'bank' means a banking company. Section 2(e) thereof,

defines 'banking company'. It says that 'banking

company' shall have the meaning assigned to it in clause

(c) of Section 5 of the Banking Regulation Act, 1949 and

clause (c) of Section 5 of the Banking Regulation Act,

1949 says that 'banking company' means any company

which transacts the business of banking in India. Counsel

submitted that by surrendering its licence, respondent 1

gave up its status as a bank and consequently, DRT's

jurisdiction was ousted. Counsel submitted that u