Decided on October 19,2005

HAMOSONS Appellant
Indian Bank And Anr. Respondents


K.Gnanaprakasam, J. (Chairperson) - (1.) THE appellant is the borrower in the O.A. 1371/2001, which O.A. was filed by the 1st respondent Bank namely Indian Bank for recovery of a sum of Rs. 17,21,609.21p together with interest thereon. During the pendency of the O.A., the respondent Bank filed an application under Section 19(25) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 to direct the 6th respondent/garnishee to deposit the rental proceeds realised from the property mentioned in the schedule to the petition and the DRT -II at Chennai by its order dated 2.8.2005, directed the 6th respondent namely, HCL Technologies Ltd. to deposit a sum of Rs. 1.5 lakh out of the rent payable to respondents 1 to 5 in the petition before the DRT every month commencing from the month of August 2005 and the same is under challenge in this appeal. Heard the learned Advocates for the appellant and the respondents.
(2.) THE only point that was canvassed by the appellant in this appeal is whether the invocation of inherent power under Section 19(25) of the Act for recovery of the debt, is justifiable, when the power under Sub -section (13)(A) of Section 19 is available. The contention of the appellant is two -fold -(1) As the amount due to the respondent Bank is not crystallised as the OA itself is pending, the application sought for recovery of the amount by way of prohibitory order, is not maintainable and (2) the respondent Bank is not entitled to invoke Sub -section (25) of Section 19 when there is a specific provision under Sub -section (13)(A) of Section 19 and the inherent power under Section 19(25) cannot override the general power.
(3.) THE OA filed by the respondent Bank for recovery of the amount is pending. It appears that the appellant has also filed reply statement, but it has been observed by the learned PO that the defendants did not dispute the claim of the applicant Bank and also did not deny the execution of the loan documents. It is also not in dispute that the OA has been filed as early as in September 2001, which is pending adjudication. The 1st respondent Bank in the affidavit filed in support of the petition, has made a specific averment that the defendants in the OA did not repay the amount in spite of several letters including the lawyer's notice and, therefore, they filed the OA for the recovery of the amount due. It is further averred that the appellants (defendants) have generated substantial sums by renting out to the 6th respondent, the petition schedule mentioned property, which has been mortgaged in favour of the Bank as a security and diverting the revenue without any intention to settle the amount due to the Bank. Only in those circumstances, the respondent Bank sought for garnishee order to deposit the rental proceeds before the Tribunal, pending disposal of the OA. The contention of the learned Advocate for the appellant is that when the OA itself is pending and the amount due to the respondent Bank is not ascertained, the claim of the respondent Bank for garnishee order is premature and the order passed thereon allowing the petition of the respondent Bank, is not proper. Further submission of the appellant is that the provision under Section 19(25) is in the nature of inherent power and when specific provision under Section 19(13)(A) is available in the nature of garnishee order, the 1st respondent Bank is not entitled to invoke Sub -clause (25) of Section 19.;

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