(1.) IN this appeal order dated 10th October, 2006 passed by D.R.T., Allahabad in M.A. No. 12/06 is under challenge.
(2.) In short the appellants have contended that the respondent Bank filed an Original Application No. 133/01 against them and on 29th November, 2002 that Original Application was decided ex parte by the Tribunal. An application for recalling the ex parte order dated 29th November, 2002 under Section 22(2)(g) of the RDDBFI Act, 1993 had been filed by the appellants. On the basis of above ex-parte decree, the recovery proceedings were taken up against the appellants. The appellants pleaded that they were making efforts to compromise with the Bank by submitting a proposal for payment of the amount of ledger balance accordingly on the basis of information given by the Bank the total amount payable was communicated to be Rs. 5,01,073.36 including legal expenses, etc. The proposal given by appellants to the Bank was approved. According to the appellants they were allowed 90 days' time to deposit 25% of amount of One Time Settlement at the earliest and also the Bank asked by its letter dated 4 August, 2003 for payment of Rs. 66,700.00 on the consumer loan account of Miss Tripti Singh financed by P.B.S. Branch of the respondent Bank. After the Bank approved the above proposal the appellants deposited Rs. 60,100.00 with the Bank and further approached to pay a sum of Rs. 1,03,679.00 as desired by the Bank towards 25% of the balance and Rs. 51,347/- as legal expenses but it was advised to the appellants to approach the P.B.S. Branch first for deposit in Consumer Loan Account of Miss Tripti Singh but when approached the Manager of P.B.S. Branch refused to receive any amount on account of its ignorance about any such approval by the Bank for the dues of the P.B.S. Branch. The appellants have pleaded that in above, circumstances, the appellants were made to run from pillar to post to comply with the terms of compromise as per the requirements but they were helpless as the P.B.S. Branch did not accept for want of information, whereas the concerned Branch of the respondent Bank did not accept this amount on the pretext that, the account of Miss Tripti Singh was not with that Branch. The case of the appellant is that in the meantime proceedings for recovery were taken up against them and the appellants in the meanwhile deposited a sum of Rs. 16,75,000.00 as settled in between the parties and they further requested the main branch of the respondent Bank to inform about the remaining amount of interest further required to be paid for the delayed period but the same was not communicated to them and the Bank proceeded with the recovery fixing the date for auction. Finding no other option the appellants moved before the D.R.T. against the order dated 26th September, 2006 passed by Recovery Officer praying for giving details of payment of O.T.S. amount. The Bank instead of giving any proper reply contended before the D.R.T. that the appellants had submitted another proposal for settlement at Rs. 8,20.000/- against the total dues and the Tribunal took the view that if there was another compromise for settlement of the dues for payment of Rs. 8,20.000/- the same amount be paid. The appellants have challenged the order dated 10th October, 2006 passed by the D.R.T. on the ground that the Bank has failed to justify the settlement and approval of Rs. 8,20,000/- when the Bank had already accorded a ledger balance of Rs. 50,000/- out of the amount of earlier final settlement.
The above appeal has been contested by the respondent Bank before this Tribunal by filing written reply. In the reply the Bank has pleaded that the appellants filed compromise and the Bank approved the same for payment of Rs. 8,20,000/- as the earlier compromise proposal for settlement for Rs. 5,01,073.36 approved by the Bank, was cancelled vide letter dated 14th November, 2003 because of breach of the terms of that compromise by the appellants. The Bank further pleaded that the recovery certificate for a sum of Rs. 12,23,895.40 along with interest was issued on account of failure on the part of appellants to honour the compromise and thereafter the other compromise was arrived at and thereafter another compromise was entered into for payment of Rs. 8,20,000/- which had been approved by the Bank, therefore, now the appellants are liable to pay the same amount as agreed by them.
(3.) HAVING heard Counsel Mr. N.C. Rajwansi, learned Senior Advocate and Mr. R.G. Goswami for appellants and Mr. Sandeep Arora, Advocate for the Bank, this Tribunal has gone through the material available on the record. At the very outset the submission from the side of the appellants before this Tribunal is that the first O.T.S. (compromise) dated 4th August, 2003 was approved by respondent Bank by its letter. Whereas, the second O.T.S. (compromise) is of 9th August, 2004 as per the Bank's letter. According to the learned Counsel for the appellants the first O.T.S. was cancelled vide letter dated 14th November, 2003, whereas, the appellants deposited in all Rs. 6.75 lacs as per the deposit slips filed in this appeal. From the side of the appellants, according to the learned Senior Counsel for the appellants after the first compromise, the Bank cannot enter into second compromise without resorting to the recovery for the amount as per the terms of first compromise. He has also argued that the alleged second compromise was got done under the threat and coercion of auction by the officials of the respondent Bank, therefore, the Bank is not entitled for the enhanced amount ignoring the amount of first compromise. Attention of this Tribunal has been drawn towards the impugned order wherein Hon'ble D.R.T. has made certain observations with regard to first compromise and also about second compromise. The contention from the side of the appellants is that the Bank but no right to demand enhanced amount and in support of his argument he has relied upon the rulings Eastern Paper Mill Machinery Pvt. Ltd. v. State Bank of India II (2005) BC 414 : 2005(2) Bank C.L.R. 587 of Hon'ble Calcutta High Court and another State Bank of India v. Vijay Kumar 2007(2) Bank C.L.R. (sic) of Hon'ble Supreme Court.;