Decided on January 18,2006



P.K.Deb, - (1.) THIS appeal has been preferred against the final judgment and order passed in T.A. No. 941 by the then Presiding Officer, DRT, Jabalpur allowing the appellant-Bank's claim on reduced rate on the basis of the compromise arrived at between the parties earlier and that some amount on the basis of the compromise was already obtained/admitted from the side of the Bank.
(2.) A very short point is involved in present appeal as to whether the learned Tribunal committed error in accepting the compromise amount for the purpose of grant of recovery certificate was legal, proper and justified, Admittedly the appellant Bank granted loan to the respondents for the purpose of Hotel business, But when the loan account became sticky then a suit was filed in the Civil Court for recovery of Rs. 1,00 crore and odd against the respondents. When the Tribunal was set up, then suit was transferred to the DRT, Jabalpur and was registered as T.A, No. 941/98. While proceeding was going on before the Tribunal, then outside the Tribunal a settlement was arrived at between the Bank and the Tribunal on 15.3.1999 to the effect that the appellant shall be agreeable to accept Rs. 45 lacs as a settled amount towards their claims, if the same is being paid by 31.3.1999. On the basis of such compromise an amount of Rs. 5 lacs and odd have been deposited from the side of the Bank by sale of some of the rooms of the Bank after taking no objection from the Bank regarding such sale and the sale proceeds were directly deposited with the Bank. As the buyers were not available the respondents could not sell the Hotel and so delay was caused. Then some buyers were found and some agreements were arrived at with those buyers to sell some rooms and the respondents approached the Bank for granting permission to sell out those rooms to pay up the remaining amount of settled amount of Rs. 45 lacs. The Bank did not grant permission and as such a petition was filed by the respondents before the Tribunal for directing the Bank to issue no objection certificate for full and final settlement of the claims of the Bank. The Tribunal found that while the claims proceeding was pending, the Bank had given no objection without taking permission from the Tribunal and as such the Tribunal wanted to know as to under what circumstances, Bank could give such no objection certificate, but the Bank could not comply with the direction of the Tribunal, but they objected to the petition filed by the respondents regarding no objection certificate etc. stating that the Bank had already repudiated the settlement arrived at earlier as the respondents had failed to deposit the settled amount within the stipulated period. Their further contention was that when the compromise failed, then the Bank is entitled to get a whole decree in respect of their claims made in the original application. Learned Tribunal after considering the contention of both the parties held that compromise arrived at had never been brought in the notice of the Tribunal earlier and that the Bank had settled the case outside the Tribunal and that settlement is in the form of novation of contract and hence the Bank cannot go beyond such novation and hence recovery certificate has been ordered to be passed on the balance amount of the agreed amount of Rs. 45 lacs. The present appeal has been preferred by the Bank against the impugned judgment and order on the ground that when compromise has been taken into consideration by the Tribunal, then the whole terms and conditions of the compromise ought to have been adhered to and when default clause was there, there was no scope of the Tribunal to go beyond that and hence the whole order is illegal and improper. Although notices were served in the appeal, the respondents did not appear and hence the appeal was heard ex pane.
(3.) THE admitted fact remains that during the pendency of the proceeding before the Tribunal an agreement was arrived at between the appellant Bank and the respondents-borrowers and the said agreement was also implemented in part admittedly. THE contention of the Bank is that although the compromise was arrived at, the same was never being acknowledged in the Tribunal and whole thing remains outside the Tribunal and when the terms of the compromise was not adhered to within the time frame, the compromise stood cancelled and disallowed which was also acknowledged to the respondents, although on a later period and in that way, the appellant Bank is entitled to get recovery certificate for the whole amount, they had claimed and not on the lessened amount as decreed on the basis of the so called compromise.;

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