9911796707
TMI Blog1998 (1) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... on resolution of a question raised which has an element of commonality in character as to how far Debt Recovery Tribunal is competent and is authorised to pass orders under a self-contained statute known as the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. 51 of 1993) which has been contended by the learned counsels appearing on behalf of series of the petitioners and attention of this Court has been drawn to different dimensions focussed in order to substantiate their contention that the Debt Recovery Tribunal has neither any authority nor they are conferred by any blessing of the statute to pass such ad interim orders. It has been contended by way of echo in a cohesive manner by all the petitioners that it has no vestige of jurisdiction by the same Tribunal to pass ad interim orders. The said contentions have been controverted by the counsels appearing on behalf of the respondents' Financial Institutions by joining issues to the propositions canvassed before this Court. This Court has carefully considered the contentions and counter-contentions of the respective parties at length and there has been some delay caused because of change of determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinks fit to meet the ends of justice. Section 19(6) envisages that the Tribunal may make an interim order (either by way of injunction or stay) against the respondent to debar him from transferring, alienating or otherwise dealing with or disposing of any property and assets belonging to them without the prior intimation of the defendant. It is clear from perusal of section 19(6) that the Court may pass an interim order and the expression used is by way of mention of an order of interim nature. The said interim order has been further circumscribed by way of injunction or stay as adumberated within the bracketed portion specify- ing the object of order of such interim nature to debar the defendant from transferring, alienating or otherwise dealing with or disposing of any property and assets belonging to the petitioner without prior permission of the Tribunal. There has been adaptation of section 19(6) in the form prescribed under the rules covered by rule 4 as mentioned in column 7 which also make the same pinpointed by describing the nature of the order as interim. The term of the adjective 'interim' as appended to order has been exemplified in column 7 itself by making the men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession used, namely, 'orders' appears to be a plural expression which previously in terms of grammatical construction contained reference to plurality of orders. The said orders are attempted to be comprehended by an expression of prefix such as a prelude to the expression 'orders' to meet the ends of justice. The Court is made to wonder as to what is meant by such orders meaning thereby as to what should be the nature of such orders. This Court to make the point threadbare wants to refer to the purpose of such orders to meet the ends of justice which cannot be except for the purpose of meeting the ends of justice. The same has been preceded by sub-section (3) of section 19 which prescribes as to what the Tribunal should do on receipt of an application under section 19(1) and after appearance or service of such notice it can pass such orders to meet the ends of justice in compliance of the provisions of section 19 itself coupled with the other ancillary provi- sions and the rules framed thereunder. It has been followed by incorpo- ration of sub-section (5) of section 19 that the Tribunal shall send a copy of every order passed by it to the applicant and the respondent. In terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the proceeding are classifiable in the separate categories, namely, orders of final nature, interim orders, ad interim orders and interlocutory orders. Orders of final nature mean and connote the plurality of orders in terms of separate reliefs prayed for being based on one cause of action in a composite application at the state of its disposal giving rise to finality. So far as interim order is concerned common notion of law is that such orders are required to be passed during the pendency of the proceeding and/or pendency of the suit. In the same tune, column 7 for filing up of the interim orders have been explained as pending final decision on the parent application. In column 7 of rule 4 of the connected rules of 1993 during the pendency of the application under section 19 there are other species of ad interim orders conceivable which tend to connote the orders which are capable of being comprehended only during the pendency of an interlo- cutory application either in the main proceeding or in the suit. Here, the main proceeding is one under section 19(1). Therefore, there is no confu- sion in between the interim orders and ad interim orders because interim orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 19(1) and its presentation and scrutiny of application, place of application, contents of the application which must be in conformity with rule 4 as adopted in terms of the Debt Recovery Tribunal (Procedure) Rules, 1993 derived from section 19. It is doubtful as to whether in terms of section 22 of the Act the process of adjudication can be guided by powers to regulate their own procedure save and except selection of the places at which they shall have their sitting excepting the procedures as laid down in the aforesaid rules of rule 4 to rule 9. If the guiding norm or procedure for adjudication is mandatory compliance of the principle of natural justice whether it can pass orders behind the back of the party litigant and the court will be required to scrutinise as to how far this offends against the elementary canons of the principles of natural justice. Natural justice ordinarily tends to suggest that nobody not to speak of a quasi-judicial authority nor a Tribunal but even an executive authority is not entitled to pass orders which are likely to be followed by pernicious implications affecting the interest of a party who has not been heard. The insistence and/or man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the connected statute, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. 51 of 1993) and the rules framed thereunder, this Court purposes to deal with the aforesaid applications serially and the respective contentions of the parties raised or canvassed before this Court. This Court first proposes to take up one of the revisional applications under article 227 of the Constitution of India and other pending applica- tions which tend to challenge an order being Order No. 2, dated 15-5-1997 passed by the Presiding Officer, Debt Recovery Tribunal, Calcutta in O.A. / 106 of 1997. In the prefix of the said order impugned a reference was made to the prayers in paragraph vii of the connected application under section 19 of the original proceeding which is for a prayer for an order of injunction restraining the respondent Nos. 1 and 2 and/or their men and/ or agent and/or successor-in-office and/or their assigns from alienating and/or transferring and/or encumbering or parting with possession with any of the securities mentioned in annexures K1, J2 and M of the application under section 19. In the said application a notice appears to have been is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Investment Corpn. of India Ltd ... Opposite Parties, wherein a challenge has been thrown in respect of an order being order dated 15-5-1997 passed by the Debts Recovery Tribu- nal, Calcutta in O.A. Case No. 106 of 1997. The said order has been assailed by the learned counsels appearing on behalf of the petitioners contending inter alia that one of the prayers granted in connection with an interim prayer is for police help which is an exceptional remedy and the Court should be cautious to grant such remedy in absence of any evidence transpiring from record that there has been resistance on the part of the revisionist petitioner in obedience to the order of the Court. It has been also contended that in the format of the application whether in the main relief or in the interim relief no prayer of whatsoever nature has been made for police help. As such, without any formal prayer emanating from the records of the proceeding such prayer cannot be granted. It has been contended with force that facile reference was made to balance of convenience and inconvenience but the same cannot be discerned from the pleadings. In absence of proper pleadings about the balance of convenience and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harmonise the premise and the conclusion and it also does not appear either from format or from the Act and the rules as referred to earlier that there is any power conferred on this Tribunal of special jurisdiction to pass ad interim orders as it is only entitled to pass interim orders under section 19(6). There is no provision under section 19(6) itself either for appointment of a special officer or for grant of police help unless extraordinary conditions of a strong case of police help are made out. It has been commented at the instance of the petitioner that the Tribunal in terms of section 19(6) can have only the power to pass interim orders in the nature of injunction and stay but not in the nature of Receiver or Special Officer. Though reference was made to section 19(4) in terms of which Tribunal has been given the power to pass such orders on the application as it thinks fit to meet the ends of justice but according to the petitioners the said power is to be exercised only at the time of final disposal. It has been further contended that there cannot be any decree of final order appointing Receiver or Special Officer. While drawing attention to the expression after givin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mischief will ensue to the plaintiff; ( b )whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve; ( c )the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; ( d )the Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction; ( e )the Court would expect a party applying for ex parte injunction to show utmost good faith in making the application; ( f )even if granted, the ex parte injunction would be for a limited period of time; ( g )general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court. Thus, the Apex Court has laid down seven criteria which are to be strictly observed before passing an ex parte order of ad interim injunction. Here, in the impugned orders in the pending revisional applications it does not appear that the Tribunal has formed satisfaction about fulfillment of pre- requisite conditions as laid down by the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered that the principle of audi altera partem was excluded. It is not always a necessary inference that if opportunity is explicitly provided in the provision and not so provided, another opportunity is to be deemed to be a consideration as excluded from the other provision. It may be a weighty consideration to be taken into account but the weighter consi- deration is whether administrative action entails civil consequence. It has been submitted by the respondents in the said context by placement of reliance on ( sic ) AIR 1978 SC 596 that there is no need to give notice and post decisional hearing would meet the requirements for ends of justice. The recent trend of the Supreme Court has been to reject the doctrine of post decisional hearing except in very rare and extreme emergent cases. As it has been observed in K.L. Shephard v. Union of India AIR 1988 SC 686 at para 16 by the Supreme Court that, "We may now point out that the learned Single Judge of the Kerala High Court has proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated there is no justification to think of a post-decisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case ( supra ) , at para 24. In the aforesaid decision of S.L. Kapoor's case ( supra ) , the Supreme Court has observed that the non-observance of natural justice by itself is prejudicial to the party concerned and proof of prejudice independent of ex facie denial of natural justice is unnecessary. In the said context a further reference can be made to the case reported in ( sic ) 1990 (2) SCC 48 at para 25 where the Supreme Court has observed that non-observance of natural justice by itself causes prejudice to a party and proof of prejudice independent thereof is unnecessary and can be termed as illusory exercise. The respondents wanted to take refuge under the shelter of the decision reported in State Bank of Patiala v. S.K. Sharma AIR 1996 SC 1669. In the said decision the Supreme Court makes a distinction between different types of procedural violation and further opines that each and every procedural violation cannot automatically vitiate the order passed. The Supreme Court distinguishes between the cases of no notice of hearing and cases where it has been alleged that there has been no adequate hearing. In the second category of cases the petitioner is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is imminent danger or risk involved unless ad interim orders of injunction in respect of the assets are not passed, the Tribunal can exercise its powers by taking recourse to expeditious service of its show-cause notice on the concerned party by communication in a speedy and efficacious manner, say for example, by way of courier service, speed post or special messen- ger at the cost of the applicant and can fix it for orders after notice at the shortest possible time. In the emerging situation of the evolution of social fabric where speed has become a sina qua non in view of scientific improvement social change must keep pace with technical progress and scientific innovation so that there may not be any disparity between the technological and social development. In the compexity of the pattern of the existing society technological innovation must percolate into the social fabric and they must be given effect to at the cost of the applicant for efficacious, prompt and urgent service so that the matter in question can be posted for orders at the earliest point of time to grapple with situations of such emergent nature. Even rules can be prescribed or amended at the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of the statute. Accordingly, the said revisional applications succeed for the reasons as aforesaid and no detailed mention with regard to the particulars is made because of the views of this Court about the legal position as expounded earlier. The fifth revisional application is also one pending application under article 227 of the Constitution being directed against order No. 2, dated 9-4-1997 passed by the Presiding Officer, Debt Recovery Tribunal, Calcutta in O.A. No. 70 of 1997 in the case of Tea Packs Speciality Ltd. Petitioner v. Central Bank of India Opp. Parties. Here also the Tribunal seems to have relied on the same stereo-typed verbose of phraseology, namely, considering the prima facie case, balance of convenience and inconvenience and apprehension of the applicant bank and the amount of the claim of the bank for ad interim injunction is granted thereby restraining the respondents from disposing of or transferring, encumbering or dealing with in any manner the assets and properties mentioned in annexures 'G' and 'H' of the application and also there are other assets without paying the claim of the applicant. The reference to the other assets of the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of consideration in terms of language, substance and form and the pith and substance is that consid- ering the prima facie case, balance of convenience and inconvenience, urgent of the matter and protection of public money with which bank has been dealing with and the prayer for ad interim injunction is granted thereby restraining respondent No. 1 and its agents from selling, transfer- ring and/or otherwise dealing with the properties mentioned in annexures 'X' and 'HH' of the application under section 19. The respondent No. 1 was also restrained from operating its several bank accounts in different branches of Allahabad Bank, UCO Bank, Indian Overseas Bank, State Bank of India, ad interim orders of ex parte nature of such blanket forms on a stereo-typed recital of orders which manifestly bear insignia of complete non-application of mind are flout with grave implications. Even quasi-judicial authorities like the Debt Recovery Tribunal are required to subserve the purpose of the statute in consonance with its objective and principle of natural justice. It appears from the orders impugned in two proceedings that one is replica of another with regard to the substance and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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