Decided on August 05,2003



Pratibha Upasani, - (1.)THIS Misc. Appeal is filed by the appellant/original defendant, being aggrieved by the order dated 4.10.2002 passed by the learned Presiding Officer of Debts Recovery Tribunal-II, Mumbai on Exhibit No. 18 in Original Application No. 1094/1999. By the impugned order, the learned Presiding Officer rejected the appellant's/defendant's application for recalling order passed by the Tribunal on 15.5.2001 vide Exhibit No. 7 in which, the defendant was directed to disclose on affidavit properties--movable and immovable--belonging to him either solely or jointly.
(2.)I have heard Mr. Gaikwad for the appellant and Mr. Jaychandran for the respondent Bank. I have also gone through the proceedings and in my view, no fault can be found with the impugned order.
It is argued by Mr. Gaikwad that the earlier order dated 15.5.2001 was passed by the Debts Recovery Tribunal ex parte and the appellant was not heard at the time of passing of the order and, therefore, order was bad. This submission of Mr. Gaikwad has to be rejected because Section 19(12) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter to be referred to as the "RDB Act)" empowers the Tribunal to pass such an interim order. The Supreme Court in its judgment II (1999) BC 57 (SC)=V (1999) SLT 310=( 1999) 4 SCC 71, Industrial Credit and Investment Corporation of India Limited v. Grapco Industries Limited and Ors. has observed that Tribunal under RDB Act can pass ex parte orders for a short duration and there is nothing wrong in it. Therefore, it cannot be said that the order was wrong because it was passed ex parte. Thereafter notices were sent and at the time of final hearing of the said application of the Bank, praying for confirming ad interim order, the appellant as well as respondent Bank were both heard. Therefore, there is nothing like violation of principles of natural justice.

Another contention of Mr. Gaikwad is that Tribunal could not have passed order directing the defendants to disclose on affidavit properties--movable and immovable--belonging to them either solely or jointly because there is no provision in the RDB Act to pass such an order. He further submitted that this was an order in the nature of attachment before judgment and such an order could not have been passed. This submission of Mr. Gaikwad also has to be rejected. Order which was passed was in fact not on application for attachment before judgment. No doubt, application to that effect was made by the Bank but the said application was not accompanied by list of properties and considering that application for ABJ, direction was given to the defendants to disclose their properties on oath. Such an authority under law is always there in the Tribunal when the RDB Act gives certain powers to the Tribunal. There is always a power implicite or inherent for proper and effective implementation of the orders, which are passed. The provisions of Civil Procedure Code are not applicable to the procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The only fetters put on its power are to observe principles of natural justice. Section 19, Sub-section 25 gives power to the Tribunal to make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.

In view of the aforesaid discussion, it cannot be said that the learned Presiding Officer committed any error in refusing to recall his earlier order, wherein direction was given to the defendants to disclose their properties on oath. In fact, it appears that the defendants had earlier made a submission to the effect that they would disclose their properties on oath and thereafter deviated from the said submission. In fact, the learned Presiding Officer has observed that appropriate contempt proceedings could also be started against the defendants but due to paucity of time he was restraining himself from taking that action. He further observed that to ensure that the defendants did not play any mischief for defeating recovery certificate that may be eventually issued and in order to safeguard interest of the applicant Bank's money, it was necessary for the defendants to disclose their assets as per the order in question. I find nothing wrong in this observation.

In view of the aforesaid discussion, in my view, there is no infirmity in the impugned order. Hence, following order is passed:


Misc. Appeal No. 434/2002 is dismissed.

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