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TMI Blog2025 (3) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... t factual material before it to decide the issue of entitlement of HDFC to claim against Ashima and BBK. The DRAT was not at all justified in simply remanding the matter to DRT for deciding the issue of jurisdiction and all other issues in the original application "afresh". The DRAT, without discharging its of an first appellate authority, has simply chosen to remand the matter to DRT without recording any cogent reasons for adopting this easy course of action. This was admittedly not a case where the DRT had decided on a preliminary point without recording findings on other issues. In such a case if the appellate court reverses the decree on a preliminary point, the appellate court may remand the matter to the trial court to decide other issues and determine the suit. This is what is provided under Order 41 Rule 23 of the Code of Civil Procedure. Under Order 41 Rule 23-A the appellate court can order a remand even in other cases not covered by Order 41 Rule 23. However, by a catena of decisions, the Hon'ble Supreme Court has clarified that the remand cannot be ordered lightly. In a case where the provisions of Order 41 Rule 23 do not apply, the remand can be ordered if considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No.12708 of 2024. Mr. Veerendra Tulzapurkar, Senior Advocate a/w Mr. Shivam Bhagwati and Mr. Mufaddal Peparwala i/by Crawford Bayley & Co. for Respondent No.2 in Writ Petition No.9344 of 2024. Mr. Shivam Bhagwati a/w Mr. Mufaddal Peparwala i/by Crawford Bayley & Co. for Respondent No.2 in Writ Petition No.12708 of 2024. JUDGMENT Per M. S. Sonak, J. 1. Heard learned counsel for the parties. 2. The learned counsel for the parties agree that both these Petitions can be disposed of by a common order. 3. Accordingly, we issue Rule in both these Petitions. The rule is made returnable immediately at the request of and with the consent of learned counsel for the parties. 4. In Writ Petition No.9344 of 2024, the Petitioner - HDFC Bank Limited (HDFC), vide prayer clause (a) challenges Debt Recovery Appellate Tribunal's common order dated 26 April 2024 disposing of Appeal Nos. 2 of 2018 and 32 of 2018. In alternative to prayer (a), the Petitioner, vide prayer clause (b) seeks a declaration that the amount the Petitioner claims from the Respondents constitutes, a "debt" under Section 2(g) of the Recovery of Debts And Bankruptcy Act, 1993 ('the said Act') and for quashing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration, Hyderabad Vs. Sunder Singh ((2008) 8 SCC 485) and S. P. Builders & Ors. Vs Chairperson, Debts Recovery Appellate Tribunal & ors (2006 SCC OnLine All 908) in support of his contentions. 9. Dr Birendra Saraf, learned Senior Advocate for BBK, tendered a copy of the purshis in Miscellaneous Appeal No. 89 of 2006 and submitted that leave was sought to withdraw the Appeal with liberty to raise all contentions, including the contention of jurisdiction as to whether the HDFC's claim constituted a debt before the DRT. He submitted that the DRAT by order dated 11 July 2014 disposing of Respondents' Appeals allowed the Respondents to withdraw their Appeals by keeping open all contentions, including contentions going to the jurisdiction of the DRT to entertain HDFC's original application. He submitted that the orders even directed the DRT to consider the matter on merits, uninfluenced by the earlier orders of the DRT. He therefore submitted that there was no finality attached to the DRT's order dated 26 October 2005 holding that HDFC's claim constituted a debt under Section 2(g) of the said Act. 10. Mr Virendra Tulzapurkar and Dr Birendra Saraf learned Senior Advocates for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake and therefore, given under the provisions of Section 72 of Indian Contract Act such monies had to be returned by BBK to HDFC. 15. On 07 March 2005, HDFC filed an original application before DRT Mumbai against BBK and Ashima for recovery of amount of Rs. 7.5 Crores. BBK and Ashima filed applications for rejection of these original application on the ground that the HDFC's claim did not contribute a "debt" under Section 2(g) of the said Act and therefore, that the DRT lack its jurisdiction to entertain the original application. 16. By order dated 26 October 2005 (Exh-K) the DRT rejected Ashima's and BBK's applications and held that the amount claimed by HDFC Bank constituted a debt under Section 2(g) of the said Act and therefore, the DRT had jurisdiction to entertain HDFC's original application. Ashima and BBk instituted Appeal Nos. 89 of 2006 and 224 of 2007 challenging DRT's order dated 26 October 2005 holding that it had jurisdiction to entertain and proceed with HDFC's original application. On 11 July 2014, the DRAT in response to the Purshis filed by Ashima permitted Ashima to withdraw Miscellaneous Appeal No.89 of 2006 17. This order dated 11 July 2014 at Exhibit-L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring stage. 23. By order dated 30 June 2017 the DRT allowed the HDFC's original application and directed Ashima and BBK to jointly and severally pay a sum of Rs.9,14,23,232.41 along with at the rate of 12% p.a. on the principal amount of Rs.7.5 crores to the HDFC. 24. The BBK and Ashima instituted Appeal Nos.2 of 2018 and 32 of 2018 respectively to challenge the DRT's order dated 30 June 2017. By impugned common order dated 26 April 2024, the DRAT has allowed the appeals, set aside DRT's order dated 30 June 2017 and remanded the matters to DRT to consider the issue of jurisdiction raised by BBK and Ashima together with other issues afresh. 25. The operative portion of the DRAT's impugned common order dated 26 April 2024 (Exhibit - A at pages 30 to 39) reads as follows :- "21. When there is no finding on jurisdiction by the D.R.T., it would not be appropriate to assume that the question of jurisdiction has already been determined and therefore, the dispute concerning the other issues could be gone into. Remand is indeed a last resort in appeal. When the D.R.T. itself had in the order dated 29.07.2016 decided to defer consideration of the question of jurisdiction along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y chosen to remand the matter to DRT without recording any cogent reasons for adopting this easy course of action. 28. Mr. Virag Tulzapurkar was justified in submitting that DRAT's common order dated 26 April 2024 must be set aside and the DRAT must be directed to decide all issues one way or the other in Appeal Nos. 2 of 2018 and 32 of 2018 instituted by the Respondents. He submitted that the remain was not a justified and was contrary to settled legal position that remands must not be ordered routinely or lightly. 29. The contentions of the learned Senior Advocates for the Respondents about the Respondents being entitled to right of an appeal cannot be a good ground to sustain the remand order. By setting aside the remand order and restoring the Respondents' appeals, the Respondents would get an effective opportunity of prosecuting their appeals. On all contentions of all parties are proposed to be kept open. 30. This was admittedly not a case where the DRT had decided on a preliminary point without recording findings on other issues. In such a case if the appellate court reverses the decree on a preliminary point, the appellate court may remand the matter to the trial court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the judgment of the High Court elaborately records the contention of the parties and the facts and evidence relied by the parties. In view of the aforesaid, we allow the present appeal, and set aside the impugned judgment and restore the first appeal to its original number before the High Court, to be decided on merits and in accordance with law, as per the provision of order XLI of the Code. As the appeal has been pending for a considerable time, the High Court would decide the appeal expeditiously as possible." 32. In Ashwinkumar K Patel (supra), the Hon'ble Supreme Court held that the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed reversed or modified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand the matter but decide it on its own merits. The approach of the DRAT in lightly remanding the matter to the DRT is contrary to law and precedence on the subject. No valid grounds have been assigned to resort to such remand. No difficulties have been cited for the DRAT to itself decide the legal and factual issues. The entire material was before the DRAT. The DRAT was in the best position to interpret its earlier orders. The remand has been ordered lightly and without taking cognizance of a law and the precedence on the subject. 37. The DRAT also failed to appreciate that the original application was filed by HDFC in 2005. The DRT rejected the Respondents' objection to maintainability on 26 October 2005. The Respondents's appeals instituted in 2006 and 2007 were disposed of only on 11 July 2014. The DRT allowed HDFC's original application on 30 June 2017. The impugned common order has been made on 26 April 2024. Thus, the matter is lingering for last almost 20 years. Still, the DRAT has remanded the matter to DRT without recording any cogent reasons to justify such remand. 38. For all the above reasons, we set aside the DRAT's impugned common order dated 26 April 2024 in Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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