T R S GOEL Vs. BANK OF INDIA
LAWS(DR)-2004-12-8
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on December 20,2004

Appellant
VERSUS
Respondents

JUDGEMENT

K.S.Kumaran, - (1.) FIRST respondent-Bank of India (hereinafter referred to as 'the respondent-Bank') filed Suit No. 818/76 before the Hon'ble High Court of Delhi against the appellant (2nd defendant in the suit; and hereinafter referred to as 'the appellant-defendant') and others. After the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 came into force, the said suit was transferred to the file of the Debts Recovery Tribunal, Delhi (hereinafter referred to as 'the DRT), and was taken on its file as O.A. 102/97. The DRT passed the ex pane final order on 12.10.98. The appellant-defendant filed an application to set aside the ex parte final order as against him. The learned Presiding Officer of the DRT rejected the said application in limine by the impugned order dated 8.5.2002. Aggrieved, the appellant-defendant has preferred this appeal, and the respondent-Bank has filed a reply opposing the same.
(2.) The appellant-defendant has also filed Miscellaneous Application 502/2002 for permitting him to raise an additional ground of appeal, to which also the respondent-Bank has filed a reply opposing the same. I have heard the Counsel for both the sides, and perused the records.
(3.) THE learned Counsel for the appellant-defendant contends that the Suit 818/76 was filed on 5.11.76. and the appellant-defendant had appeared and filed the written statement also. He points out that the Hon'ble High Court of Delhi passed the order setting the appellant-defendant ex parte on 7.1.97, which order, according to him, is a nullity. THE learned Counsel for the appellant-defendant contends that the DRT at Delhi was established on 5.7.94, and CWP 3050/94 was filed by the Delhi High Court Bar Association and others challenging the validity of the Act, and the operation of the Act was stayed. He also contends that in view of the stay granted, the physical transfer of the cases had not taken place. He also contends that the Hon'ble High Court of Delhi had struck down the Act as unconstitutional on 10.3.95, against which a Special Leave Petition was filed before the Hon'ble Supreme Court by the Union of India and another. He also contends that the Hon'ble Supreme Court stayed the operation of the order of the Hon'ble Delhi High Court, and, ultimately, allowed the appeal on 14.3.2002. THErefore, the learned Counsel for the appellant-defendant contends that after the stay granted by the Hon'ble Supreme Court, the order passed by the Hon'ble High Court of Delhi on 7.1.97 setting the appellant-defendant ex parte is a nullity inasmuch as the suit had to be transferred to the DRT. This is the additional ground of appeal which the appellant-defendant wants to take by filing the Miscellaneous Application 502/ 2002. THE learned Counsel for the- respondent-Bank, on the other hand, contends that this Tribunal being subordinate to the Hon'ble High Court will have no power to hold that the order of the superior Court, namely, the Hon'ble High Court, is a nullity. He also contends that this plea not having been taken either in the application filed before the DRT to set aside the ex parte final order, or in the appeal filed before this Court, cannot be allowed to be taken at this stage. But, the learned Counsel for the appellant-defendant contends that this being a legal plea the appellant-defendant is entitled to take such a plea at any stage of the proceedings.;


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