Decided on March 11,2004



Pratibha Upasani, - (1.) THIS misc. appeal is filled by the appellants/original defendants being aggrieved by the Order dated 11.6.2003 passed by the learned Presiding Officer of the Debts Recovery tribunal, Pune on Exhibit No. 36 in Original Application No; 163/2002. By the impugned order, the learned Presiding Officer rejected the application made by the defendants praying that preliminary issue with respect to maintainability of the original application filed by the applicant Bank be framed.
(2.) I have heard Mr. Palande for the appellants and Mr. Bhambhlani for the respondent No. 1 Bank. I have also gone through the proceedings including the application Exhibit No. 36 and reply filed by the Bank thereto and the impugned Order and in my view, the learned Presiding Officer has correctly passed the order. Case of the appellants is that the security documents are not validly and legally executed. It is also contended that the original application is barred by limitation, as the revival letters are not legally executed. On these grounds, application was made by the appellants to frame preliminary issue and pass Order accordingly on the same. The Bank filed reply to the said application pointing out that there is no provision in DRT Act to frame preliminary issue as the proceedings conducted before the Tribunal are of a summery nature. It is, therefore, prayed by the Bank that the said application be dismissed. The learned Presiding Officer after hearing both the parties and after going through the material placed before him observed that even if the allegation made in the application made by the defendants was accepted at its face value, the question of limitation was not one which really had arisen in the present matter. He further observed that the defendants' case was that the security documents were non est because they were not in conformity with the resolution passed by the appellant No. 1 company and that such challenge ruled out the possibility of limitation because a plea of limitation presupposed either execution or non-execution of the documents, which had bearing on institution of the suit and, therefore, the question of limitation was not a main question at that stage. He further observed that it was the question of validity of the execution of documents that was material and in his view, the said question could be only considered in a full dressed trial and not before that.
(3.) HAVING heard both the Advocates at length and having gone through the impugned order, I do not find any error or infirmity in the impugned order. In fact the defendants had not filed their written statement and on a query being made, the Advocate appearing for the defendants submitted the written statement, which was taken on record. Thus, the matter is ready for hearing and disposal on the basis pf affidavits. Apart from endorsing the views of the learned Presiding Officer about the non-maintainability of the application, this is also significant and relevant. In this way, main original application can be disposed of. This is . a meritless appeal, which deserves to be dismissed and is accordingly dismissed. Hence, following Order is passed: ORDER Misc. Appeal No. 291/2003 is dismissed. In view of the above, Misc. Application No. 635/2003 does not survive and is disposed of accordingly.;

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