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TMI Blog2013 (8) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... fact which after exercise of due diligence was within the knowledge of the petitioner at the time when the impugned order was passed - no ground for review was made out - Within these parameters the orders suffer from no infirmity - That apart the Court had gone on to examine all the averments made by the petitioner on merits and the earlier order passed by the DRT as also the order of the DRAT also with-stand the test of fairness - On no count does the petitioner deserve any relief – Decided against petitioner. - W.P.(C) No. 8432 of 2011 - - - Dated:- 20-3-2013 - Sanjay Kishan Kaul AND MS. INDERMEET KAUR, JJ. For the Appellant : Dhruv Mehta, Ashim Vachher, S.M. Hashmi and Pawash Piyus. For the Respondent : H.L. Tiku, Munish Gandhi and Subhanker Sengupta. ORDER:- PER : Ms. Indermeet Kaur The present writ petition has been filed under Article 226 of the Constitution of India. The prayer in the petition seeks a quashing of the order dated 02.9.2011 and a subsequent order dated 22.9.2011 passed by the Debt Recovery Appellate Tribunal (DRAT). The aforenoted two orders were passed on the review applications preferred by the appellants before the DRAT seeking qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A. No.3/2005. 8. Thus there were two proceedings pending before the DRT i.e. O.A. No.110/1996 and T.A. No.3/2005. 9. Learned counsel for the parties have taken us through the various correspondences exchanged between Satinder Kapur and the petitioner bank. The first of these correspondences starts from 24.9.2007. This was a proposal by Satinder Kapur for a One Time Settlement (OTS) with the Bank. Relevant extract of the letter dated 24.9.2007 addressed by Satinder Kapur to the General Manager Punjab National Bank reads herein as under: "The General Manager Punjab National Bank NPA Recovery Cell Rohit House Tolstoy Marg New Delhi For the kind attention of Shri Vinay Kumar Sub:- Indian Magnetics Ltd. (in liquidation proposal of One Time Settlement of Liability) Dear Sir, This has reference to our personal discussions and to the subject outstanding amounts on account of M/s. Indian Magnectis Ltd. (In Liquidation) ["The Company"]. This also has reference to the ongoing matters filed by the Bank before the Hon'ble Debt Recovery Tribunal, Delhi. ** ** ** It is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted by the Bank and vide their letter dated 16.5.2008 it was accepted by the Bank that upon payment of the full compromise amount the Bank would inform the concerned court that it was not interested in pursuing the criminal complaint. All other conditions of sanction as conveyed by their letter dated 31.01.2008 would remain unchanged. 14. On 08.4.2009 a no dues certificate was issued by the Bank to Satinder Kapur. This document was addressed to Satinder Kapur and which reads herein as under: "PUNJAB NATIONAL BANK ASSET RECOVERY MANAGEMENT BRANCH 10th Floor Atma Ram House, 1- Tolstoy Marg, New Delhi (Phones 233263/4, 23319314 Fax 23357996) Ref: ARMB: GNS:KSB 08.04.2009 To whom it may concern Certified that Sh.Satinder Kapur has entered into an OTS for Rs.125.00 lacs in the account of M/s Indian Megnetcs Ltd. and has deposited the entire OTS amount. The Bank has no dues against the party. Chief Manager Shri Satinder Kapur C-39, Anand Niketan New Delhi-110021" 15. It is relevant to point out that not only the no dues certificate but in fact all correspondences exchanged were between the petitioner Bank and Satinder Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties. TA thus stands disposed off as withdrawn. Let record be consigned". 21. It was noted that since the DRAT had permitted the petitioner bank to withdraw its case on the basis of the compromise having been arrived at between the parties the T.A. stood disposed of as withdrawn. On this date neither of the parties were present. The DRT had, by this order, only endorsed the finding already returned by the DRAT which had on 04.11.2010 had already disposed of T.A. No.3/2005. 22. As pointed out supra neither of these aforenoted orders i.e. order dated 04.11.2010 and 22.11.2010 have been challenged. Both these orders dated 04.11.2010 (DRAT) and 22.11.2010(DRT) have since attained a finality. There is no dispute to this. 23. On a specific query put to the learned senior counsel for the petitioner on this score he fairly concedes that this writ petition has not challenged the aforenoted orders but has only restricted its challenge to the orders dated 02.9.2011 and 22.9.2011 which were passed by the DRAT seeking a review of the orders dated 04.11.2010 and 22.11.2010 . These orders dated 04.11.2010 and 22.11.2010 having thus attained a finality, thus Court can go b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng review of the order dated 02.09.2011. The main appeal is already disposed of by this Tribunal by order dated 04.11.2010. Thereafter the bank moved an application for review and in the review application so filed by the bank this Tribunal has already passed an order on 02.09.2011. The respondent bank moves another application to review the order dated 02.09.2011 which was passed in the review application. On the basis of the aforesaid by applying the analogy of Order XLVII Rule 9 CPC no second review is applicable and the review application is dismissed. Copies of this order be furnished to the parties as per law and one copy be sent to the Ld. DRT forthwith." 27. The order dated 02.9.2011 had dismissed the review petition sought for by the bank on the ground that a second review is not maintainable. 28. It is in this background that the arguments of the petitioner have to be appreciated. 29. Learned senior counsel for the petitioner submits that the bank had entered into an OTS only with respondent no.1; Satinder Kapur was acting as director of respondent no.2; there was no occasion for the bank to have suffered such a heavy monetary loss and would have agreed to com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been filed by it against company, its directors and guarantors and pending before various courts and tribunals of competent jurisdiction including but not limited to O.A. No.110/1996 pending before the DRT, New Delhi and also the Criminal Case pending before the Patiala House Courts, New Delhi. The language of this paragraph makes it abundantly clear that the parties had all along intended that on the acceptance of the OTS by the bank not only would the O.A. No.110/1996, the Criminal Case pending before the Patiala House Courts but all other pending matters would be withdrawn against the company, its directors and guarantors. It was not restricted to the O.A. and the Criminal Case alone it; was to encompass all such pending litigations inter se the parties which were not only against respondent no.2 but also against its directors and guarantors. Intent of the parties to settle all matters including the T.A. was abundantly clear from this communication. 32. Satinder Kapur had given a personal guarantee for the loans advanced to respondent no.2. The company was, however, not in good shape and on a reference made by Board for Industrial Financial Reconstruction (BIFR) under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Bank on 08.4.2009 was also in favour of Satinder Kapur certifying "certified that Satnder Kapur had entered into an OTS for Rs.125.00 lacs in the account of M/s Indian Magnetics Limited and has deposited entire OTS amount, the bank has no dues against the party". On 28.10.2010 counsel for the Bank had also appeared before the DRAT wherein a statement was made that the matter stood settled and it was accordingly adjourned to 04.11.2010. On 04.11.2010 in the presence of the counsel for the petitioner bank a settlement proposal between the parties was noted and T.A. No.3/2005 was disposed. There was no objection raised by the counsel for the petitioner that such an order could not have been passed. Pursuant to this order the DRT on 22.11.2010 disposed of T.A. No.3/2005; the application seeking review of the orders dated 04.11.2010 and 22.11.2010 was filed several months later i.e. in May, 2011. No satisfactory explanation was furnished in the said application and this is evident from the perusal of the same. These applications were dismissed on 02.9.2012 by the DRAT. It was noted that the OTS was with regard to both the accounts i.e. O.A. No.110/1996 and T.A. No.3/2005. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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