Decided on January 20,2004



D.C.Thakur, - (1.) WHEN the application of the applicant-Bank has been taken up for consideration, neither of the defendants has been found present like the previous occasions. The applicant Bank has made this application for an order to be passed under Sub-section (22) of Section 19 for the issuance of a certificate for a sum of Rs. 10,82,133.72 together with pendente lite and future interest on the aforesaid claim up to the date of payment at the rate of fourteen percent per annum to realise from the sale of the mortgage property described in the Schedule which has been mortgaged with the applicant-Bank against the five defendants.
(2.) From the point of relevance, the facts that the trying Court being the Civil Judge, Senior Division, First Court, Cuttack has been pleased to deliver and pronounce judgment and to make an order of decree by Order No. XXI dated April 5, 1996 in connection with T.M.S. No. 28 of 1994 instituted by the applicant-Bank against those five defendants and the judgment and decree have been, pronounced under Section 33 of the Code of Civil Procedure, 1908 against those persons on a preliminary basis, after taking the form and character of the preliminary decree have constituted the basis of and have acted as the starting point of the present legal recourse. In that judgment and order the suit was decreed exparte and as a preliminary one for a sum of Rs. 3,14,900.22p., against the defendants with costs. In that order the defendants were directed to pay the decreetal due with P.I. and F.I. at the rate of fourteen percent per annum to the plaintiff's Bank within three months, hence failing which the plaintiff Bank would realise the same from the same defendants through the process of law by making the decree final and selling the mortgaged 'B' schedule properties of the plaint. Thereafter a decree was necessarily, drawn on April 20, 1996. At the relevant time when the applicant-Bank did institute the above suit, the present Tribunal was not in existence. Factually speaking, the defendants did not prefer any appeal against the said ex parte decree of the said Court before the appropriate appellate Court under Section 96 of the Code of Civil Procedure, though Sub-section (2) of that very section which reads as follows : "An appeal may lie from an original decree passed ex pane." Though those aggrieved defendants had the statutory right to prefer the appeal against the said ex parte judgment and decree pronounced on April 5, 1996, the non-exercise of such right has been materially present in the instant matter. As a result of the enactment of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. LI of 1993), no judicial body other than this Tribunal has been given any power to put into motion the said ex parte decree, along with the above features. Accordingly, the application to be preferred by the applicant-Bank under Section 31 (A) of the aforementioned Act did become inevitable and such application was factually made by itself on November, 13, 2002 before this Tribunal. Since the date of its filing it has been pending.
(3.) FOR convenience, Section 31 and 31 (A) of the present Act arc being set forth below: "31. Transfer of pending cases,-(1) Every suit or other proceeding pending before any Court immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action where on it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal: Provided that nothing in this Sub-section shall apply to any appeal pending as aforesaid before any Court. (2) Where any suit or other proceeding stands transferred from any Court to a Tribunal under Sub-section (1),- (a) The Court shall, as soon as may be after such transfer, forward the records of such suit or other proceeding to the Tribunal; and (b) the Tribunal may, on receipt of such records, proceed to deal with such suit or other proceeding, so far as may be, in the same manner as in the case of an application made under Section 19 from the stage which was reached before such transfer or from any earlier stage as the Tribunal may deem fit. 31-A. Power of Tribunal to issue certificate of recovery in case of decree or order. (1) Where a decree or order was passed by any Court before commencement of the Recovery of Debts Due to Banks and Financial Institutions (Amendment) Act, 2000 and has not yet been executed, then, the decree-holder may apply to the Tribunal to pass an order for recovery of the amount. (2) On receipt of an application under Sub-section (1), the Tribunal may issue a certificate for recovery to a Recovery Officer. (3) On receipt of a certificate under Sub-section (2), the Recovery Officer shall proceed to recover the amount as if it was a certificate in respect of a debt recoverable under this Act.";

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