Decided on July 28,2004



D.C.Thakur, - (1.) THE application preferred under Sub-section (1) of Section 31-A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. (Act No. LI of 1993) on Wednesday, June 21, 2004 before this Tribunal has been taken up for its consideration. In the said application the applicant Bank is praying for a Certificate of Recovery of a sum of Rs. 25,54,999.00 calculated upto June 24, 2004 against the number of 12 (twelve) defendants including the substituted defendants.
(2.) Before passing the appropriate order under Sub-section (2) of Section 31-A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. (Act No. LI of 1993), this Tribunal needs to mention the factual background responsible for rise of such application in short. Those defendants have been sued by the applicant Bank before the Court of the learned Civil Judge (Senior Division) Paralakhemundi, District Gajapati, in the year 1996. The said suit has been contested by those defendants; and in the said suit as many as five issues have been framed by the said learned Court. The issue Nos. 4 and 5 were the issues both factually and legally adjudicated and decided by the said learned Court. Each of the issues has been given the through discussion therein. Thereafter, the said defendants have been declared lawfully liable to pay a sum of Rs. 64,24,895.00 with pendente lite and future interest @ 17.75% per annum. Factually speaking, the judgment and order were passed on Monday, September 30, 2002 by the said learned Court. Thereafter, the aggrieved and dissatisfied defendants have preferred the appeal against the said judgment and order. In this regard, the averment as contended in Para-8 , Page-7 of the application of the applicant Bank has been setforth below: "Matter not pending in any other Court--The applicant further declares that the matter regarding which this application has been made was before this Hon'ble Tribunal in O.A. No. 185 of 2001, which was disposed of on 9.9.2003 with a liberty to file afresh application after passing of Civil Court's Decree. However, an appeal against the Preliminary Decree has been filed by defendant Nos. 3(a) and 3(h) in RFA No. 64/2003 before the Hon'ble High Court of Orissa beyond the period of limitation. On passing of the Final Decree by the Civil Court the appeal against Preliminary Decree before Hon'ble High Court cannot be sustained in law." Thereafter, a decree was drawn on Thursday, November 6, 2003 for the aforesaid sum against the same defendants.
(3.) BOTH in terms of Rule 3(a) of Order 41 as well as Sub-rule (5) of Rule 5 of Order 41 of the First Schedule to the Code of Civil Procedure, 1908 (Act No. V of 1908) as the appellant-defendants have not deposited a portion or the entire decretal amount before the said appellate Court nor there has been issued and passed any ad interim stay, staying judgment, order and decree drawn, there has nothing been found any impediment in issuing any Certificate of Recovery under Sub-section (2) of Section 31-A of the said Act. It is being held in the background of the above factual situation that the scope of natural justice has been narrowed down or reduced to an almost 'nil' position in respect of Section 31-A application; moreover, the defendants (hereinafter referred to as the intended certificate-debtors) have factually the constructive knowledge as to the determined liability which may be crystallised and evident through the appeal so preferred, though in a belated manner, by those defendants. Hence, this Tribunal has been of the view that the application preferred by the applicant Bank on Wednesday, June 21, 2004 ought to be allowed immediately; and Hence, it is being ordered that a Certificate of Recovery shall be issued against the twelve defendants for the sum, mentioned hereinabove; and The learned Registrar-in-charge of this Tribunal shall place before me the draft copy of the said Certificate for correction and issuance within a period of another thirty days from the date of receipt of such order; and Hence, the application preferred by the applicant Bank on Wednesday, June 21, 2004 stands disposed of.;

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