SIDHARTH SPICES CORPORATION Vs. UNION BANK OF INDIA
LAWS(DR)-2003-1-10
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on January 24,2003

Appellant
VERSUS
Respondents

JUDGEMENT

A. Subbulakshmy, Chairperson - (1.)BOTH Counsels present. Heard Counsels for both sides. Order was passed by this Tribunal under Section 21 of the Act on 5.7.2002 directing the appellant to deposit Rs. 1 crore within six weeks from 5.7.2002 failing which the appeal shall not be entertained and shall be rejected. As against that order the appellant preferred appeal before the High Court of Kerala in O.P. No. 22789/2002(K) and the High Court of Kerala passed order on 12.9.2002 stating that inasmuch as the appellate Tribunal has not adverted to the contentions of the petitioners that more than the decree amount can be realised only through the account of the Bank and is lying in credit of the petitioners which the Bank alone can collect and the Bank can adjust those amounts to the decree debt immediately on receipt of the same that should have been considered and orders passed by the Appellate Tribunal, and the High Court of Kerala has directed this Appellate Tribunal to reconsider that application and pass appropriate orders.
(2.)Counsel for the appellants submits that more than the decree amount is tying with the foreign Bank and that can be realised only through the account of the respondent Bank and it is lying in the credit of the appellants and the Bank alone can collect that amount and the Bank can adjust those amounts to the decree debt immediately on receipt of the same and when such is the position and as huge amount is lying in the foreign Bank, it can be realised only through the respondent Bank, the question of payment under Section 21 of the Act does not arise and the appellant is entitled for waiver. He further submitted that inasmuch as huge amount is lying in the foreign Bank, it can be realised through the respondent Bank immediately, on realisation the respondent Bank can adjust that amount towards this decree amount and under such circumstances the appellant is not liable to pay any amount under Section 21 and he is entitled for waiver. He drew my attention to the letter written by the Union Bank of India to the appellant dated 13.8.2001 wherein it is stated that the Reserve Bank of India (RBI) has approved extension of time upto 31.3.2006 for realisation of export proceeds and the appellant may pursue the matter vigorously with overseas buyers/Embassy of India to ensure that the outstandings are realised within the extended period. He further submitted that as per Annexure submitted to the Bank, the Invoice value is $ 7,52,892.12 and the overseas buyer consignee is M/s. Sudan Tea Company Ltd., Khartoum, Sudan, and if that amount is realised (through the Bank the decree amount can be easily adjusted and in any case the question of payment of the amount under Section 21 does not arise.
Counsel for the appellants further submits that he filed an Affidavit with regard to the realisation of export proceeds by the Bank on 4.7.2992, but no such Affidavit has been filed before this Tribunal and so the question of considering that aspect did not arise at all when the order was passed on 5.7.2002. Even at the time of advancing arguments on 5.7.2002 on which day the order was pronounced, the Affidavit alleged to have been filed by the appellant on 4.7.2002 was not shown and no argument was advanced on that Affidavit. No prescribed fee for filing that Affidavit was also paid. From the Paper Book filed by the appellants, it appears that the appellants filed petition on 4.7.2002 along with the Affidavit but no prescribed fee for filing that petition has been paid on 4.7.2002. So, it is evident that no such Affidavit at all was filed on 4.7.2002 which does not find place along with the records.

(3.)COUNSEL for the respondent Bank submitted that the RBI has approved extension of time upto 31.3.2006 for realisation of export proceeds and if further extension was also given by the RBI, the respondent Bank cannot indefinitely wait for realisation of the decree amount and the extension of time granted by the RBI is not a ground to allege that the appellant is entitled for waiver. As per the extension granted by the RBI for realisation of the export proceeds, three more years have to be waited. As rightly pointed out by the COUNSEL for the respondent Bank, the respondent Bank cannot be expected to wait for another three more years till the export proceeds are realised and if further extension was also granted by the RBI, the respondent Bank cannot indefinitely wait for realising the decree amount.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.