Shri Shri Ram Gupta And ORS v. Debts Recovery Appellate Tribunal And ORS


























 

  
  

  




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:M/s Shakti Bhog Snacks Limited vs. Corporation Bank & Others"


 
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'9 '& #'()  "Bank has filed service report and as per service report, Sh. Namit Gautam, Advocate appeared on behalf of defendant No.1 to 6 and filed POA. No one appeared on behalf of defendant No.7 and 8, therefore, they are proceeded against ex)parte. Bank is directed to supply paper book to defendant No.1 to 6 today for filing WS on the next date.

The case is fixed for next date 07.06.2019.

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   "Hon'ble Presiding Officer is on official duty for holding charge of DRT, Jaipur.

The case is fixed for next date 02.08.2019."

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  "Defendant Nos. 1 to 8 were directed to file written statement on or before 07.06.2019 but they have filed written statement on 01.08.2019 as per order dated 08.05.2019. Therefore, written statement filed by defendants after this date cannot be taken on record and right to file written statement deemed to be closed on 07.06.2019 and defense of defendant Nos. 1 to 8 is struck off.

Since, the defense of defendant Nos.1 to 8 has already been struck off and right to file written statement has already been closed so there is no necessity to call the original documents to be compared as the affidavit of evidence has been filed along with the OA.

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  $, that DRT should not adjourn the case once defense is struck off and should straight)away allow the OA to achieve the main objective of the act for speedy disposal of the cases.

In its judgment Hon'ble DRAT, Delhi has given observations that when defense is struck off the evidence adduced by the bank at the time of filing OA is with affidavit of evidence and the same should be considered and should not adjourn the case for adducing evidence which unnecessarily delays the disposal of the cases. This Tribunal is bound to follow the directions given by Hon'ble Chairperson DRAT Delhi. Therefore, in the light of above)mentioned observations since, the defense of defendants has already been struck off. This OA is fixed for /

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List on 24.08.2019."

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  " Present:) Sh. Veerbhan Adv., for Bank.

Fresh Notices be issued. Let the notices be issued to all the defendants. Defendants be served notices by way of electronic mode as well as by personal service and registered post. If defendants are served personally, then bank is directed to bring all the original documents on next date. The concerned


























 

clerk is directed to issue notices within three days from the date of this order.

The case is fixed for service report on next date 06.08.2019." ) (

 

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  "ITEM NO.37 ΟΑ 2633/18 PNB vs TRIVENI KNITS 06.08.2019

Present:

Shri Veer Bhan Advocate for Applicant None for the defendants.

No one has appeared on behalf of defendants despite effective service. Therefore, all defendants are proceeded ex parte. Since, no one has appeared to controvert or to rebut the claim of applicant bank and as the OA has been filed along the affidavit of evidence, there is no necessity to call the original documents to be compared.

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1 5  < that DRT should not adjourn the case once defense is struck off and should straight)away allow the OA to achieve the main objective of the act for speedy disposal of the cases.

In its judgment Hon'ble DRAT Delhi has given observations that when defense is struck off the evidence adduced by the bank at the time of filing OA is with affidavit of evidence and the same should be considered and should not adjourn the case for adducing evidence which unnecessarily delays the disposal of the cases. This Tribunal is bound to follow the directions given by Hon'ble Chairperson DRAT Delhi.


























 

"Since, the defendants are ex parte clearly goes to show that the evidence as filed by the bank in their claim is unrebutted. Therefore, there is no need to call the original documents from the bank".

Therefore, in the light of above)mentioned observations since, the defendants are ex parte, this case is fixed for judgment. List on 14.11.2019.

(Sd/)) Presiding Officer DRT)III, Chandigarh After pronouncement of order, Shri Akashdeep Advocate for defendants appeared. He has filed memo of appearance on behalf of all defendants and has been apprised about the above order"

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Before winding up, this Tribunal once again would like to mention here, as had been observed on an earlier occasion also while dealing with an appeal arising out of an order passed by one DRT striking off the defence of the concerned borrower/defendant, that even when defence of defendants is struck off by the DRTs, still the O.As keep on lingering for years. Some time is consumed for filing of evidence by the banks and some time is consumed before the Registrars on the pretext of 'exhibition of documents'. In that process, years get consumed and in that process the very purpose of enactment of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which is speedy disposal of Bank recovery cases and expeditious recovery of 'public monies' gets frustrated. When a defendant does not file written statement and his defence is struck off, he conveys to the Tribunal that he has no opposition to the claim of the bank. So, in a way the entire claim of the Banks stands admitted.

DRTs should appreciate that when defence is struck off the averments made in the OAs get admitted and Section 19(5B) of the RDDBFI Act, 1993 mandates that when the claim of the Bank is admitted, in full or in part, by a defendant the DRT SHALL direct that defendant to pay the admitted amount within thirty days.

As far as the procedure being adopted by the DRTs for giving time to the banks as well as defendants for adducing evidence and exhibition of documents is concerned, this Tribunal feels that in view of the existing provision under Section 19(10B) of the Act of 1993, banks as well as defendants are supposed to


























 

file evidence by way of affidavits alongwith the O.A. by banks and along with written statements by defendants. The objective is to save unnecessary time which otherwise gets consumed for completion of evidence and thereby delays are caused in the final disposal of bank recovery cases which even otherwise are to be finally disposed of within 180 days as provided under Section 19(24) of RDDBFI Act, 1993. It is seen that in almost every case the banks make reference to all the loan documents in their O.As and make them as annexures to the O.As. The O.As are duly verified also and are supported by affidavits also, which means the documents which the banks annex with the O.As become part of the O.

As itself and normally there should not be any problem in accepting those documents straightaway as part of evidence and particularly in cases where defence of defendants stands struck off, which procedure, if adopted, will go a long way to cut short the period of disposal of the O.As in which crores of public monies are involved. This will also ensure that the Banks do not get any undue special treatment for filing of documents and adducing evidence. The DRTs must apply Section 19(10B) equally for the banks as well as the borrowers)defendants. It is hoped that whenever a situation arises when defence of defendants is to be struck off and even otherwise also the learned Presiding Officers will keep in mind the aforesaid observations in order to achieve the objective for which DRTS have been established.

This appeal with the aforesaid observations is dismissed.

Copy of this order be circulated amongst all the DRTs under the jurisdiction of this DRAT.

(CHAIRPERSON)"

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(i) the defendant shall within a period of thirty days from the date of service of summons, present a written statement of his defence including claim for set)off under sub)section (6) or a counter)claim under sub)section (8), if any, and such written statement shall be accompanied with original documents or true copies thereof with the leave of the Tribunal, relied on by the defendant in his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, the Presiding Officer may, in exceptional cases and in special circumstances to be recorded in writing, extend the said period by such further period not exceeding fifteen days to file the written statement of his defence;

(ii) where the defendant makes a disclosure of any property or asset pursuant to orders passed by the Tribunal, the provisions of sub)section (4A) of this section shall apply to such property or asset;

(iii) in case of non)compliance of any order made under clause (ii) of sub)section (4), the Presiding Officer may, by an order, direct that the person or officer who is in default, be detained in civil prison for a term not exceeding three months unless in the meantime the Presiding Officer directs his release: Provided that the Presiding Officer shall not pass an order under this clause without giving an opportunity of being heard to such person or officer.

Explanation.-For the purpose of this section, the expression 'officer who is in default' shall mean such officer as defined in clause (60) of section 2 of the Companies Act, 2013 (18 of 2013).


























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On receipt of the written statement of defendant or on expiry of time granted by the Tribunal to file the written statement, the Tribunal shall fix a date of hearing for admission or denial of documents produced by the parties to the proceedings and also for continuation or vacation of the interim order passed under sub)section (4).

 # Where a defendant makes an admission of the full or part of the amount of debt due to a bank or financial institution, the Tribunal shall order such defendant to pay the amount, to the extent of the admission within a period of thirty days from the date of such order failing which the Tribunal may issue a certificate in accordance with the provisions of sub)section (22) to the extent of the amount of debt due admitted by the defendant."









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Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

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  "22. In construing this provision, support can also be had from Order 8 Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10


























 

Order 8, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order 8 Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1."

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compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away."

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"23. In the light of the ratio decidendi of the cases cited hereinabove, when we examined the judgement and order of the trial court granting a decree of partition in favour of the plaintiff)appellant, we could notice that the plaintiff)appellant has sought to prove his case that the suit property was a joint family property only on the strength of affidavit which he had filed and has failed to lead any oral or documentary evidence to establish that the property was joint in nature. Even if the case of the plaintiff)appellant was correct, it was of vital importance for the trial court to scrutinize the plaintiff's case by directing him to lead some documentary evidence worthy of credence that the property sought to be partitioned was joint in nature. But the trial court seems to have relied upon the case of the plaintiff merely placing reliance on the affidavit filed by the plaintiff


























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which was fit to be tested on at least a shred of some documentary evidence even if it were by way of an ex)parte assertion.

24. Reliance placed on the affidavit in a blindfold manner by the trial court merely on the ground that the defendant had failed to file written statement would amount to punitive treatment of the suit and the resultant decree would amount to decree which would be nothing short of a decree which is penal in nature.

25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non)filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the Court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgement, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgement and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint.

26. It is only when the Court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the Court can conveniently pass a judgement and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the Court to record an ex)parte judgement without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex)parte judgement although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the






























delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial.

27. However, if the Court is clearly of the view that the plaintiff's case even without any evidence is prima facie unimpeachable and the defendant's approach is clearly a dilatory tactic to delay the passing of a decree, it would be justified in appropriate cases to pass even an uncontested decree. What would be the nature of such a case ultimately will have to be left to the wisdom and just exercise of discretion by the trial court who is seized of the trial of the suit.

28. When we examined the instant matter on the anvil of what has been stated above, we have noticed that the trial court has decreed the suit without assigning any reason how the plaintiff is entitled for half share in the property. The same is absolutely cryptic in nature wherein the trial court has not critically examined as to how the affidavit filed by the plaintiff in support of his plea of jointness of the family was proved on relying upon Ex.P)1 to P)10 without even discussing the nature of the document indicating that the suit property was a joint property. Ex.P)1 to P)10 are the preliminary records viz. Atlas, Tipni Book, R.R. Pakka Book, Settlement Akarband, sale deeds etc.

The trial court although relied upon these documents, it has not elaborated critically as to why these documents have been believed without indicating as to how it proves the plea that the property always remained joint in nature and had never been partitioned between the parties. Even if the trial court relied upon these documents to infer that the property was joint in nature, it failed to record any reason as to whether the property was never partitioned among the coparceners.

29. It is a well acknowledged legal dictum that assertion is no proof and hence, the burden lay on the plaintiff to prove that the property had not been partitioned in the past even if there was no written statement to the contrary or any evidence of rebuttal. The trial court in our view clearly adopted an erroneous approach by


























 

inferring that merely because there was no evidence of denial or rebuttal, the plaintiff's case could be held to have been proved. The trial court, therefore, while accepting the plea of the plaintiff)appellant ought to have recorded reasons even if it were based on ex)parte evidence that the plaintiff had succeeded in proving the jointness of the suit property on the basis of which a decree of partition could be passed in his favour" (6









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