BANK OF INDIA Vs. UNITED FRIENDS AN UNREGISTERED FIRM
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) ON July 9, 2004 the applicant Bank has filed one application against the defendant Nos. 1 to 9 being also here called the judgment-debtors. At the outset of the discussion initiated in connection with the application that has been presented on the aforementioned day and date, it has been pertinent to mention that the compliance with the principles of natural justice in the present matter shall certainly lead to the unnecessary wastage of time as well as shall defeat the very purpose for which Section 31A has been engrafted in the body of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. LI of 1993). Moreover, the due compliance with the principles of natural justice has no where been laid down in Section 31A of the said Act. In addition to the above, that the object underlying that Sub-section (2) of Section 31A imposes a duty, bounden, upon the Tribunal to issue a Certificate of Recovery on receipt of an application made under Sub-section (1) of Section 31A has been based on the guiding principles lying behind the incorporation of Section 38 into the body of the Code of Civil Procedure, 1908 (Act No. V of 1908) according to which a decree pronounced but not satisfied may be put into motion or execution through an application of the decree holder to a proper Court which has already pronounced its judgment and decree. Section 31A has no doubt been the retention of the principles as necessarily laid down in Section 38 of the said Code; this Tribunal is also taking note of the relevant fact that the preliminary decree that has been passed by the learned trying Court in connection with TMS No. 426/1983 has been actually passed on contest--a word specially signifying the full-fledged participation of those defendants as well as the determination of all the issues that have been unavoidably framed under Order 14 of the First Schedule to the Code of Civil Procedure, 1908 (Act No. V of 1908), after the said adjudicating body has received the documents as the pieces of evidence under Order 13 of the said Code. Though in the body of the Code of Civil Procedure, the preliminary decree and the final decree hive been used, yet there is no actual definition of the expressions like the preliminary decree or final decree as provided in the definition of the said Code. The preliminary decree or the final decree may be used as the hall-mark of the long custom and usage prevailing in the legal world. A civil suit is generally instituted by a suitor by way of the presentation of a plaint under Section 26 of the Code of Civil Procedure, 1908 (Act No. V of 1908), before a Court of civil nature; a suit may be commenced by the presentation of a plaint which is inseparably connected with the provisions as contained in Rule 10 and Rule 9 of Order 1 of the said Code, the ambit of which is making the reference to the traditional concept of dominus litus--meaning thereby the right to impleadment. Any erroneous improper impleadment of any person may result in the mis-joinder; but an omission to implead the necessary party may also result in the non-joinder of the said party. The suit instituted before a Court of civil nature after giving rise to the suit of civil nature with which Section 9 of the said Code has dealt extensively may reach its finality or culmination through Section 33 of the said Code when a Court may pronounce the judgment after hearing both the parties before itself; after giving a thought to each of the issues framed by itself. The same has been reiterated in Order 20 of the First Schedule to the Code of Civil Procedure, 1908 (Act No. V of 1908) but wherein the boundary line has been maintained in between the preliminary decree and final decree, after maintaining convention at the civil parlance. However, the decree preliminary was a contested one against the defendants, though with cost; in the decree preliminary the successful applicant Bank had been granted leave to put into motion the said decree when the judgment debtors would have been found in failing to comply with what had been laid down therein.
(2.) From the factual angle the judgment-debtors (on the preliminary decree basis) have been found in not complying with the decree pronounced on April 18, 1991, those debtors have also failed to satisfy in spite of having knowledge, constructive, the decretal amount; otherwise the Court would have not used the word like 'cost' in the body of the said decree drawn by the said Court. Thereafter, the said preliminary decree was converted into the final decree on February 5, 2003. This Tribunal is consequently allured to quote verbatim the words exactly used by the learned Civil Judge (Sr. Division), Cuttack:
"Claim for realisation of a sum of Rs. 5,16,153/- with P.I & F.I and costs of the suit and for an injunction restraining the defendants from upon reading the preliminary decree passed in this suit on the 24th day of April, 1991 and further orders (if any), dated the and the application of the plaintiff dated 3rd day of October, 1994 for final decree and after hearing the parties and it appearing that the payment directed by the said decree and orders has not been made by the defendant or any person on his behalf or any other person entitled to redeem the mortgage.
It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and that for the purposes of such sale the plaintiff shall produce before the Court of such officer as it appoints all documents in possession or power relating to the mortgaged property. And it is hereby further ordered the money realised by such sale shall be paid into the Court and shall be duly applied after deduction therefrom of the expenses of the sale in payment of the amount payable to the plaintiff under the aforesaid preliminary decree and under any further orders that may have been passed in this suit and in payment of any amount which the Court may have adjudged due to the plaintiff for such costs of the suit including the costs of this application and such costs, charges expenses as may be payable under Rule 10 together with such subsequent interest as may be payable under Rule 1 to Order 36 of the First Schedule to the C.P.C., 1908 and that the balance, if any shall be paid to the defendant or other persons entitled to receive the same."
Thereafter, the said decree was drawn by the Court against those defendants. In the said decree the applicant Bank was also granted as a successful litigant both PI and FI and costs along with the decretal amount i.e. being Rs. 5,16,153/- for the realisation of which the applicant Bank had instituted before the said learned Civil Court the T.M.S. against those judgment-debtors/defendants.
(3.) THEREAFTER, the applicant Bank has been compelled to knock at the door of this justice-delivering system in the form of the present application to be known and branded as the Section 31A application.;
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