BANK OF RAJASTHAN LTD Vs. JEEWAN RICE AND ALLIED INDUSTRIES PVT LTD
LAWS(DR)-2004-7-2
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on July 01,2004

Appellant
VERSUS
Respondents

JUDGEMENT

K.S.Kumaran, - (1.) HEARD arguments of both the sides, and perused the records. The appeal has been presented against the order dated 5.10.2001 passed by the learned Presiding Officer of the Debts Recovery Tribunal, Jaipur (hereinafter referred to as 'the DRT') dismissing the application filed by the appellant-Bank for the issuance of a Recovery Certificate in pursuance of the judgment and decree passed by the Additional District Judge-2, Kota on 13.9.89 in Suit No. 23/87. The learned Presiding Officer, by his impugned order dated 5.10.2001, dismissed the application on the ground that it has not been presented within the period of three years as per the provisions of Section 137 of the Limitation Act, 1963.
(2.) It is conceded by both the sides that the learned Presiding Officer of the DRT had considered only the question of limitation, and dismissed the said application without going into the merits of the contentions raised by either side. The learned Counsel for the respondents 2 and 3 states that apart from the question of limitation, respondents 2 and 3 had raised some other contentions also, and they have not been considered. Though the learned Counsel for the respondents 2 and 3 wanted to urge that this application filed before the DRT is a fresh O.A., and is not an application under Section 31A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act'), the prayer pointed out by me earlier itself shows that the appellant-Bank had prayed for issuance of the Recovery Certificate in pursuance of the decree passed by the Civil Court. Therefore, though the appellant-Bank had not mentioned that this application was being filed under Section 31A of the Act for the simple reason that Section 31A of the Act had not been introduced by that time. It is apparent that in effect the prayer was one as contemplated under Section 31A of the Act. Now, Section 31A has been introduced in the Act specifically providing for issuance of Recovery Certificate by the DRT even with regard to the decrees passed by the Civil Court, which had not been executed.
(3.) THOUGH a contention was raised by the learned Counsel for the appellant that in this matter the appellant-Bank had already commenced the execution proceedings, it is also the case of the appellant herein that, that fact cannot in any way stand in the way of the appellant seeking the issuance of the Recovery Certificate. Because, the words "has not been executed" found in Section 31A of the Act have to be interpreted to mean that the decree has not been executed in full and the amount thereunder has not been realised. It is not the case of the respondents 2 and 3 that any amount was realised. The learned Counsel for the appellant states that an execution petition was filed before the Civil Court for the attachment sale of the movables, but, the said application was transferred to the DRT where no amount was realised at all. According to him, even this execution petition, which was transferred to the DRT, was tagged on to the application filed for the issuance of the Recovery Certificate.;


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