9911796707
TMI Blog2003 (1) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... he Housing and Urban Development Corporation Ltd. (HUDCO for short) has filed an Original Application as O.A. No. 42 of 2001 before the Debts Recovery Tribunal, Ernakulam and that case was pending. According to them, the Company is only a contractor for the construction of the flats to be constructed for and on behalf of the petitioners. It was contended that the Company is not the owner of the flats and the HUDCO entered into an agreement fully knowing that the apartments do not belong to the contractor. It was also averred that the HUDCO is bound by the prior obligations and it has to honour the commitments made by the mortgagor. It is also averred that the attempt of the HUDCO is to effect sale of property in a clandestine manner so as to deprive the petitioners rights and so they are also necessary parties to the Original Application. They filed application on 17-1-2002 which is numbered as I.D. No. 459 of 2002 which is marked as Ext. P2 in this Original Petition. It is averred that the application was dismissed by the Registrar holding that the Original Application was disposed of. It was contended that the O.A. was heard and decided only on 18-1-2002 a date after the implead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en court hall of the Tribunal and at that time, the counsel for the petitioners was also present. It was contended that though the O.A. was filed in the year 2001, the petitioners did not take any action till the date of disposal of the O.A. and they have filed the impleading application in collusion with the borrower Company with mala fide intentions. It was also contended that the impleading petition was disposed of by a considered order. It was also contended that the O.A. came up before the Presiding Officer after several postings before the Registrar for steps at none of those postings, the petitioners came up with any claim. It is further contended that the petitioners claim could be effectively got adjudicated at the time of recovery proceedings. Hence the first respondent prayed for disposal of the Original Petition. 3. Since in the O.P. allegations are levelled against the Presiding Officer that the O.A. was disposed of with full knowledge that the petitioners had filed petition for impleading and the Registrar is passing judicial orders notice was issued to the Debt Recovery Tribunal. The Presiding Officer, Debt Recovery Tribunal did not file any counter affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er authority on the Registrar in view of section 22 of the Act. Section 22(1) reads as follows: "22. Procedure and powers of the Tribunal and the Appellate Tribunal. (1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings." So it is clear that the provisions of the Code of Civil Procedure as such are not made applicable but so far as the matters stated under sub-section (2) of section 22, the Tribunal is conferred with the powers of the Code of Civil Procedure. An argument was advanced by the learned counsel for the respondents relying on section 22(2)( h ) of the Act that the Tribunal itself has power to regulate its procedure, section 22(2)( h ) of the Act reads as follows: "(2)The Tribunal and the Appellate Tribunal shall have for the purposes of discharging their functions under this Act, the same powers as are veste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the application is found to be in order, it shall be duly registered and given a serial number. If the application is defective and the defect noticed is formal in nature, the Registrar himself can allow the party to rectify the same. If the defect is not formal in nature, time has to be given to the party to cure the defects. Sub-rule (4) provides that if the party fails to rectify the defect within the time allowed, the Registrar may decline to register the application. It is very pertinent to note that he has not been given any power to reject the application or dismiss the same. He can only decline to register the same. The Legislature has consciously avoided using the word dismiss or reject in R. 5(4) of the Rules. Further the Registrar may decline to register the application only if it is defective. If the party takes up a stand that there is no defect and insists that the application itself be posted before the Tribunal for deciding whether there is defect or not the Registrar cannot decline to register the application. In such a situation he is bound to post the unnumbered application itself before the Tribunal who has to take a judicial decision on the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng transferred applications; ( ii )to decide all questions arising out of the scrutiny of the applications before they are registered; ( iii )to require any application presented to the Tribunal to be amended in accordance with the rules; ( iv )subject to the directions of the presiding officer, to fix date of hearing of the applications or other proceedings and issue notices thereof; ( v )direct any formal amendment of records; ( vi )to order grant of copies of documents to parties to proceedings; ( vii )to grant leave to inspect the record of Tribunal; ( viii )dispose of all matters relating to the service of notices or other processes, applications for the issue of fresh notices or for extending the time for or ordering a particular method of service on a (defendant) including a substituted service by publication of the notice by way of advertisements in the newspapers; ( ix )to requisition records from the custody of any court or other authority." The learned counsel appearing for the respondents vehemently argued that the order under challenge is an order passed under R. 23 of the Rules. It is argued that the Registrar can exercise the functions which are ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Registrar cannot decline to number the same. He invited my attention to clauses contained in ( a ) to ( c ) of Regulation 13. But as I have already stated the provisions contained in Regulation 13 are subject to the provisions contained in Rr. 4 and 5 of the Rules. So if an interim application filed in a pending case is defective the Registrar can decline to number the same. 12. Chapter V containing regulations 14 to 16 deals with proceedings before the Registrar of the Tribunal. Regulations 14 to 16 read as follows: "14. Matters to be listed before the Registrar. Once an application or petition is registered the same shall be posted before the Registrar for ordering Notice and for completion of pleadings subject to the powers contemplated under section 22 of the Act read with Rr. 22 and 23 of the Debt Recovery Tribunal (Procedure) Rules, 1993, and such other functions as are assigned to the Registrar under the said Rules or by the Presiding Officer by a separate order in general or special. 15. Cause list for Registrar. Cases required to be dealt with by the Registrar shall be notified in separate Daily Cause List. The cases so notified shall be taken up by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulations. The learned counsel for the petitioners submitted that the Registrar is discharging all judicial functions short of passing the final orders in O.As. and T.As. as if he is the Presiding Officer and the Presiding Officer is a mute witness to all these illegal acts. 14. Though the Tribunal is not bound by the provisions of the Code of Civil Procedure, it is bound to follow the principles of natural justice. According to the petitioners, the petition was filed on 17-1-2002 and it was rejected on that day itself on the ground that the main O.A. itself was disposed of. In view of the factual dispute, I have called for the file of O.A. No. 42 of 2001 of the Debt Recovery Tribunal, Ernakulam and examined the same. The unnumbered petition was filed on 17-1-2002 after serving copy to the opposite side. The registry had noted that the case is also posted to that date. The endorsement on the petition shows that the petition was placed before the Registrar by the office with a note that the O.A. has been disposed of on 18-1-2002 and the I.A. therefore is infructuous. The initial bears the date 18-1-2002. It is seen that originally the Registrar had passed an order which reads a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing for the petitioners was present in the court on 18-1-2002, also and when the O.A. came up for hearing the counsel for the petitioners submitted that their applications may also be taken up and orders passed. The learned counsel appearing for the petitioners has submitted that the endorsement made by the Tribunal on the foot of the judgment itself will show that the judgment was dictated only on 18-1-2002. It is argued that the Tribunal has acted contrary to the fundamental principles of natural justice. The only inference possible from the admitted facts is that the Tribunal was also aware of the filing of the impleading petition by the petitioners on 17-1-2002 but the O.A. was disposed of without giving them an opportunity to represent their case. According to the petitioners they spent huge amounts and with that amount, the defendants in the O.A. constructed the flats. The Tribunal ought to have considered the application filed by the petitioner before disposing of the O.A. especially in view of the fact that the application was not defective. But for reasons best known to the Presiding Officer, the O.A. was disposed of with undue haste and in violation of the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le agreement they have got an interest over the land and the enforcement of the mortgage, if any, subsequently created by the builder in favour of HUDCO can be subject to their rights only. The learned counsel for the first respondent has vehemently argued that even if the petitioners are impleaded, they will not be in a position to resist the claim of HUDCO and their only claim is under an agreement for sale. It is argued that an agreement for sale will not confer the petitioners any right, title or interest over the property or the flats. It is pointed out that in view of the provisions contained in section 54 of the Transfer of Property Act a person claiming under the sale agreement will not get any right. The learned counsel for the petitioners relying on the decisions in Ram Baran v. Ram Mohit AIR 1967 SC 744, Lalji Jetha v. Kalidas AIR 1967 SC 978 and Bai Dosabai v. Mathurdas AIR 1980 SC 1334 has argued that eventhough an agreement for sale will not confer any title, the agreement to sale will create an interest in the land in favour of the intending purchaser and that interest is annexed to the land. I am of the view it is not at all necessary to enter into any f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice it is not necessary to set aside the orders passed in the O.A. I am of the view that the Original Petition can be disposed of with liberty to the petitioners to take recourse to any of the remedies provided under the Rules which I have stated above. It is to be noted that the very purpose of establishing the Debts Recovery Tribunal being to expedite the disposal of the applications filed by the banks and to cut short the delay which is likely to create in prosecuting the proceedings before a civil court. If the Tribunals and its Officers are not following the procedure prescribed in the Act, Rules and Regulations that will only cause more delay in disposing the matter. If the procedures are not followed correctly, this Court will be constrained to interfere with the orders passed by the Tribunal which necessarily causes delay in disposing of the matters. In Delhi High Court Bar Association v. Union of India [JT 2002 (3) SC 131] the Supreme Court has considered the reasons for establishing the Banking Tribunals. It was held that though the provisions of the Code of Civil Procedure are not applicable the Tribunals and the Appellate Tribunals are to be guided by the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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