JUDGEMENT

: 19.09 2022 THE APPELLATE TRIBUNAL : Instant Appeal has arisen against an order dated 14.07.2022 passed by Learned DRT-2 Kolkata in O.A. No. 165 of 2016 State Bank of India versus M/s Satadal Cold Storage Pvt. Ltd. and others. With the consent of the Learned Counsel for the parties, Appeal is finally heard on merits at the stage of admission.

Appeal No. 403 of 2022-DRAT-Kolkata 2. As per the pleadings, Respondent Bank has filed O.A. No. 165 of 2016 State Bank of India versus Satadal Cold Storage Pvt. Ltd. in February, 2016. At that point of time, copies of Application were not served upon the Appellants. O.A. Application was dismissed in default. A Miscellaneous Application No. 19 of 2019 was filed for restoration of the O.A. which was allowed on 31st March, 2022 by the Ld. DRT-2 Kolkata. Directions were issued to issue notices to the Appellant and the matter was listed before the Registry on 13.04.2022. On 13th April 2022, orders were passed for service of the copy of O.A. on the Appellants. Copy was served on the Appellants on 20th April, 2022. The matter was placed before the Presiding Officer on 14th July, 2022.

Written statement could not be prepared as the record was lying in the cold Storage. Respondent Bank had taken the possession of the cold storage on 15th January, 2019. On 14th July, 2022, Learned Counsel for the Appellant prayed for time to file the written statement which was declined by the Ld. Presiding Officer. Hence, the present Appeal is preferred.

3. Learned Counsel for the Appellant submitted that the Ld.

Presiding Officer DRT-2 Kolkata has erred in holding that the stipulated time as per the Act has expired, accordingly right to file the written statement was closed. Learned Counsel further argued that the O.A. was filed in February, 2016 wherein the unamended section 19 (5) of Recovery of Debts due to Banks and Financial Institutions Act (hereinafter referred to as the Act) would apply. Hence, Appellant was entitled for extensions to file the written statement. Per contra, Learned Counsel for the Respondent Bank submits that although the O.A. was filed in February, 2016, notices were issued to the Appellant in 2022. Hence, amended provisions of Section 19(5) would be applicable. It is further submitted that the Appellant has not taken any such ground in the memo of Appeal. However, even then when the specific period is provided under the Act, the Appellant who was the defendant in O.A. was bound to follow the provisions. Appeal No. 403 of 2022-DRAT-Kolkata 4. O.A. No. 165 of 2016 was filed in February, 2016. Order dated 31.03.2022 passed by the Ld. DRT-2 Kolkata in M.A. No. 19 of 2019 arising out of O.A. No. 165 of 2016 is as under:- “Vakalatnama has been filed along with NOC and taken on record. On perusal of record, it appears that the O.A. has been dismissed for non prosecution. This Tribunal is of the opinion that the MA is liable to be allowed as public money is involved. Accordingly, the MA/19 of 2019 is allowed. For issuance of notice upon the respondent/ defendants, this Tribunal is of the opinion that the Bank shall complete their pleadings within two months from the date of this order. Directed to complete service of notice upon the defendants and file Affidavit of service before the Registry.” Section 19 (5) of the Recovery of Debts due to Banks and Financial Institutions Act 1993 (hereinafter referred to as the Act) before amendment reads as under:

“The defendant shall, within a period of thirty days from the date of service of summons, present a written statement of this (sic) defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, the Presiding Officer may, in exceptional cases and in special circumstances to be recorded in writing, allow not more than two extensions to the defendant to file the written statement.” This provision was amended by Act No. 44 of 2016 dated

16.08.2016