Decided on September 27,2004



Harihar P.Chaturvedi, - (1.) THE case is fixed for passing order in the above M.As. filed by the petitioner /4th defendant, wherein the petitioner has sought prayer that this Court should recall the Debts Recovery Certificate Proceedings No. 183/2003 issued by the Recovery Officer dated 20.6.2003 in the present O.A. and to set aside the order of attachment passed by the Recovery Officer and consequently set aside the sale fixed/conducted in respect of a mortgaged property of the petitioner described in the schedule of the O.A. It is the further contention of the petitioner that after passing of a final order dated 27.9.2002 this Tribunal has issued a Recovery Certificate on 23.6.2003 and the same was numbered as No. 130/2003. However, the Recovery Offices without having any authority or jurisdiction has also issued another Recovery Certificate bearing number 183/2003 which is contrary to the provisions of the law and the action taken by him for attachment of the mortgaged property is contrary to the established procedure and is vitiated. THErefore, this Recovery Certificate should be recalled and the attachment order passed by the Recovery Officer should be cancelled. By subsequent M.A. No. 321/2004 the same petitioner had further alleged that hearing the M. As. 20 and 21 of 2004 should be reopened after hearing her Counsel again on some new additional grounds and the order should be passed. Thus, it is observed that the petitioner does not want td see the Court should pass an early order in her M.As. 20 and 21/2004 and what she wish is just to keep pending these on one pretext or some additional grounds. However, this M.A. 231/2004 has summarily been dismissed by this Court by order dated 24.9.2004 on this ground that such I. A. is not maintainable while the Court has already heard the final arguments and reserved its order in M.As. 20 and 21/2004. Moreover, the petitioner/D4 has further approached the DRAT, Chennai by way of an unregistered Appeal No. 12/2004 which has also been dismissed by the Hon'ble DRAT for want of compliance of conditional order of making payment of Rs. 20 lakhs. Hence, if such application (M.A. 231/2004) is allowed, it would amount to reopening of the main case and it operates as res judicata for parties when the higher Appellate Forum has already passed an order and the final order of this Court stands merged with the DRAT's order. Hence it is not possible for a subordinate Court to reopen the same. THE remedy, if any, lies to the petitioner before the higher Forum and not before this Court. Hence, I.A. 231/2004 was dismissed by a separate order dated 24.9.2004.
(2.) Now this Court is considering the facts and circumstances contained in M.As. 20 and 21 of 2004 wherein the petitioner has raised objection to recall the record in the DRC No. 183/2003 dated 23.6.2003 in the present OA and also to set aside the order of attachment and further auction. It is the contention of the petitioner for seeking such relief that her house property was attached by virtue of the impugned order passed by the Recovery Officer and the petitioner was in receipt of a demand notice from the Recovery Officer by attaching the above said house property on the strength of a recovery proceeding instituted by the Recovery Officer in DRC No. 183/2003. It was her further contention (in her M.A. No. 231/ 2004 also) that this Court issued a Recovery Certificate bearing No. 130/2003, therefore, the Recovery Officer has no authority to institute a Debts Recovery Certificate No. 183/ 2003. A careful scrutiny of the record I find that this Court has issued a Recovery Certificate No. 130/2003 and pursuant to this Recovery Certificate only, the Recovery Officer further instituted a Debts Recovery Certificate proceedings as per the RDDB & FI Act and his office, however, given a new number for the said DRC proceedings. Hence, I do not find any irregularity in the said demand notice order of the Recovery Officer if its office gives a new number to the DRC proceedings on the strength of the Recovery Certificate issued by this Court dated 23.6.2003. Such plea of the petitioner is misconceived and not tenable in law because there is no mandatory provision that number for a Recovery Certificate issued or a Debts Recovery Certificate proceeding must be the same. The DRC proceedings is instituted pursuant to the Recovery Certificate issued and can have independent number. Further the petitioner has also taken other grounds that there are so many irregularities in the alleged deed of guarantee and for creating equitable mortgage in favour of the Bank. As per the petitioner, the Bank guarantee obtained from her suffers from infirmity and is not enforceable in law. All grounds obtained from her suffers from infirmity and is not enforceable, in law. All grounds are mentioned in detail in para 4(4.1 to 4.13) of the said petitions wherein the petitioner has made an attempt to challenge the final verdict/final order passed by this Court dated 27.2.2002 and tried to reopen the main case. It is an admitted position in this matter that this Court has already passed a judgment/final order after considering the OA, reply statement filed by the defendants, proof affidavit of the Bank. The defendants failed to file any Counter Proof Affidavit. Thus this Court has passed a considered and speaking order on merits. After passing of such final order the status of this Court has now become functus officio. The petitioner/defendant did not prefer any review application in this Court by showing an apparent error on the face of record on plain reading of judgment. Therefore, the petitioner/defendant cannot be permitted to move a review in the form of this M.A. before this Court. The proper Forum available to her is to file a regular Appeal before the Hon'ble DRAT or any higher Forum. The ground mentioned in paras 4.1 to 4.13 of the M.A. may hold some force and appear as valid and plausible, but this Court is not supposed to reconsider and reopen the same after passing a final verdict on merits wherein the defendant has failed to file Counter Proof Affidavit. Now such a reason put forth cannot be helpful for recalling the action initiated and proceedings advanced by the Recovery Officer for recovery of the debt due to the Bank. The Recovery Officer is very much competent and empowered to go-ahead with recovery proceedings after receiving a valid Recovery Certificate from this Court. He is not supposed to examine the merits of this case in a DRC proceedings once the Recovery Certificate is issued by this Court. Therefore, he rightly instituted a DRC proceedings and is authorised to give new DRC number (No. 183/2003 -- which is not necessary to tally with the Recovery Certificate number) and took action for issue of demand notice to the defendants and for attachment of their properties. It is a matter of record that as per the final order of this Court, the defendants, including this petitioner, are liable to pay a sum of Rs. 41,29,517.80p till the date of filing of the OA along with interest @ 11% p.a. from the date of filing till the date of realization along with costs. In the final order, the Court has further ordered that in case of default of payment, the Bank is at liberty to sell the schedule mentioned properties of the defendants and to adjust the sale proceeds realized therefrom towards the dues. In the final order it was further made clear that if the sale proceeds are not found sufficient from the schedule mentioned property, the defendants 2 to 4 would jointly and severally liable to pay the balance amount from their personal assets in addition to the OA schedule properties. Therefore, I do not find any infirmity in the action proposed/taken by the Recovery Officer to go ahead for attachment and sale of the personal house property of the 4th defendant. It is not mandatory in law to attach first only the secure mortgage property or exhaust first the mortgaged security. The Recovery Officer is also entitled to recover the debt due under the Recovery Certificate as a personal decree against the defendants. However, it is not the case here. The alleged property is very well shown in the schedule to the OA by the applicant Bank as one of the mortgaged property. Hence, I do not find any substance in such objection of the petitioner/ 4th defendant. I also do not find any valid ground for revoking the attachment order or sale already conducted by the Recovery Officer (for recovery of the debt clue) or to stay the recovery proceedings. Hence, the petition is liable to be rejected being devoid of merits.
(3.) NOTWITHSTANDING the above, it is pertinent to mention here that during filing of this M. As. 20 and 21/2004, the petitioner/04 has also filed an Appeal before the DRAT, Chennai against the impugned final order of this Court as well as the issue of Recovery Certificate and got time for deposit of the conditional amount of Rs. 20 lakhs for Registration of a Regular Appeal. Thus, it is well established that the defendants have challenged the final order of this Court passed in OA 1967/1998 dated 27.9.2002 by way of a Regular Appeal before a higher Forum. But they remain unsuccessful as the Hon'ble, DRAT has refused to register the same for want of compliance of the conditional order as they have failed to deposit Rs. 20 lakhs. Therefore, it may be seen that it was neither proper nor open to the petitioner/4th defendant to agitate the same ground in M.A. again in this Court having approached the higher Appellate Forum, which has passed an order on 12.5.2004 indirectly confirming the impugned final order of this Court the Hon'ble DRAT was pleased to observe in the said order read as follows: "3. It is seen from the reply statement filed by the 2nd appellant that the appellant himself has admitted the liability. The 2nd appellant is none other than the Managing Partner of the firm who is equally liable for the entire suit claim along with other partner. It appears that the other partner's property has been sold for a sum of Rs. 5 lakhs and odd. This partner is also liable for the entire suit claim. The appellants are also equally liable for the entire suit claim and the decree is binding on these appellants also. The appellants did not make any payment. 4. Taking into consideration the facts and circumstances of the case, the appellants are hereby directed to deposit a sum of Rs. 20,00,000/- (Rupees twenty lakhs only) with the respondent Bank within a period of six weeks from today, i.e by 23.6.2004, failing which the appeal shall stand rejected.";

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