DEBTS RECOVERY APPELLATE TRIBUNAL, DELHI

Misc. Appeal No.122/2020

Arising out of O.A. No.1156/2018 (DRT-II, Delhi)

State Bank of India

..... Appellants

Vs.

1. Smt. Anita Garg

2. Sh. Prem Chand Garg

3. Smt. Pushpa Gupta

4. Smt. Radha Gupta

5. Smt. Anju Goel

..... Respondents

Date : 16.04.2021

CORAM: MR. JUSTICE P.K. BHASIN, CHAIRPERSON

Appearance :

Mr. Abhay Gupta, Advocate for appellant

Mr. Sanjeev Bhandari and Mr. Deepak Sharma Advocates for

respondents

ORDER

The appellant bank had filed Original Application(O.A.) under

Section 19 of the Recovery of Debts Due to Banks and Financial

Institutions Act,1993 against the respondents herein for recovery of

public money to the tune of Rs. 306,86,742.44. In that O.A. a counter

claim for recovery of Rs. 747 crores was filed by the defendants except

the principal borrower Company. The applicant bank filed an

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application under Order VII Rule 11 of the Code of Civil

Procedure(C.P.C.) for the rejection of the counter claim. The learned

Tribunak below(DRT) however vide impugned order kept that

application pending to be decided at the time of final disposal of the

bank9s O.A. even after observing that the O.A. was at the initial stage

when the bank had moved the application under Order VII Rule 11 CPC.

2. Feeling aggrieved, the bank has filed the present appeal and after

giving my thoughtful consideration to the grievance of the bank,

submissions made at the bar and going through the material on record I

have unhesitatingly come to the conclusion that the decision of the

learned DRT in keeping the application under Order VII Rule 11 CPC for

the rejection of the counter claim of the respondents-defendants

pending for being decided when the matter will be disposed of finally is

in the teeth of the decision of the Hon9ble Supreme Court in the case of

<R.K.Roja vs U.S. Rayudu and Ors.=, reported in (2016) 14 SCC 275. In

this judgment the Hon9ble Supreme had held that if an application is

filed under Order VII Rule 11 CPC the same cannot be kept pending till

the end of the trial. The relevany paragraphs from this judgment are

re-produced below:-

“On receipt of notice in the Election Petition, the appellant filed Annexure-

P/4-application for rejection of the Petition,under Order VII Rule 11 of the CPC

by way of a counter affidavit. It appears that the court declined to consider the

same on the ground that there was no formal application and hence proceeded

with the trial. At that stage, appellant filed Annexure-P/5-formal application for

rejection of the Election Petition on the ground that the Election Petition did not

disclose any cause of action. That application as per the impugned order

dated 27.04.2016 was posted along with the main petition, and thus, the appeal.

The High Court has taken the view that the same <was not filed at the earliest

opportunity= and that appellant was not diligent in prosecuting the application.

Therefore, the court took the view that & “this application filed by the first

respondent shall be decided at the time of final hearing&=. We are afraid that

the stand taken by the High Court in the impugned order cannot be appreciated.

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Misc. Appeal No.122/2020

An application under Order VII Rule 11 of the CPC can be filed at any stage, as

held by this Court in Sopan Sukhdeo Sable andothers v. Assistant Charity

Commissioner and others*1+ & <The trial court can exercise the power at any

stage of the suit – before registering the plaint or after issuing summons to the

defendant at any time before the conclusion of the trial. &=. The only

restriction is that the consideration of the application for rejection should not

be on the basis of the allegations made by the defendant in his written

statement or on the basis of the allegations in the application for rejectio