Decided on January 17,2003

P.S.VINCENT Appellant


- (1.) Three strangers who filed a petition to get themselves impleaded in O.A. No. 42 of 2001 pending before the Debts Recovery Tribunal, Ernakulam are the petitioners in this Original Petition. In the petition it is averred that the petitioners entered into an agreement with one Ajith Associates Private Limited, a Company which is engaged in developing plots and constructing flats in Vyttila and Ernakulam. It is averred that the petitioners were allotted apartments in a multistoreyed complex which remains incomplete and the construction of which was undertaken by the Ajith Associates Private Limited in pursuance to the sale agreements. It is averred that the petitioners have paid the full amount which was due to the developer of the plot but he did not complete the construction and on enquiry it is understood that the Housing and Urban Development Corporation Ltd. (HUDCO for short) has filed an Original Application as O.A. No. 42 of 2001 before the Debts Recovery Tribunal, Ernakulam and that case was pending. According to them, the Company is only a contractor for the construction of the flats to be constructed for and on behalf of the petitioners. It was contended that the Company is not the owner of the flats and the HUDCO entered into an agreement fully knowing that the apartments do not belong to the contractor. It was also averred that the HUDCO is bound by the prior obligations and it has to honour the commitments made by the mortgagor. It is also averred that the attempt of the HUDCO is to effect sale of property in a clandestine manner so as to deprive the petitioner's rights and so they are also necessary parties to the Original Application. They filed application on 17-1-2002 which is numbered as I.D. No. 459 of 2002 which is marked as Ext. P2 in this original petition. It is averred that the application was dismissed by the Registrar holding that the Original Application was disposed of. It was contended that the O.A. was heard and decided only on 18-1-2002 a date after the impleading application was filed. It is also averred that when the O.A. was called for hearing, the learned counsel appearing for the petitioners, who was present before the Tribunal submitted that the petitioners had filed an application and that application may be called in the Bench and he may also be heard. But that request was turned down and thereafter the Registrar of the Tribunal had dismissed the application on the ground that O.A. was dismissed. Hence the petition to quash the order passed by the Registrar and also the final order passed in the O.A.
(2.) The first respondent HUDCO has filed a counter-affidavit stating that the original petition itself is not maintainable. It is stated that the petitioners have other effective remedies available under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act for short). It is also contended that under Section 20 of the Act, an appeal is provided to the Appellate Tribunal against the orders of the Debts Recovery Tribunal. It is also stated that under Rule 5(5) of the Debts Recovery Tribunal Procedure Rules, 1993 (Rules for short) an appeal against the order of the Registrar is provided against the order passed by the Registrar before the Presiding Officer in Chamber. It is further stated that since the petitioners had failed to file an appeal either before the Debts Recovery Tribunal or before the Appellate Tribunal, the original petition is not maintainable. It is also contended that the O.P. is not maintainable in view of the decision of the Supreme Court in Punjab National Bank v. O. C. Krishnan, (2001) 6 JT (SC) 408 : (AIR 2001 SC 3208). It is also contended that even if there is an agreement between the petitioners and the first respondent, no relief can be sought based on the agreement in a proceeding under Article 226 of the Constitution of India. It is contended that the Debts Recovery Tribunal is not the competent Forum to decide the issue raised by the petitioners and a civil Court alone can adjudicate such matters. It is contended that the builder has availed of a loan from the HUDCO and since he committed default in repayment of the amount, the HUDCO filed the O.A. for recovery of the amount by sale of the properties mortgaged. It was also contended that the petitioners filed an impleading application only on 17-1-2002 on which date the order was fully dictated by the Presiding Officer in the open Court hall of the Tribunal and at that time, the counsel for the petitioners was also present. It was contended that though the O.A. was filed in the year 2001, the petitioners did not take any action till the date of disposal of the O.A. and they have filed the impleading application in collusion with the borrower Company with mala fide intentions. It was also contended that the impleading petition was disposed of by a considered order. It was also contended that (when) the O.A. came up before the Presiding Officer after several postings before the Registrar for steps at none of those postings, the petitioners came up with any claim. It is further contended that the petitioners' claim could be effectively got adjudicated at the time of recovery proceedings. Hence the first respondent prayed for disposal of the original petition.
(3.) Since in the O.P. allegations are levelled against the Presiding Officer that the O.A. was disposed of with full knowledge that the petitioners had filed petition for impleading and the Registrar is passing judicial orders notice was issued to the Debt Recovery Tribunal. The Presiding Officer, Debt Recovery Tribunal did not file any counter-affidavit disputing the allegations levelled in the original petition.;

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