K CHANDRASEKARAN Vs. SOUTH INDIAN BANK LTD

JUDGEMENT

(1.) THE appeal is directed as against the Order passed by the Presiding Officer, DRT, Chennai, in TA-23/1999. THE applicant Bank filed a suit against the defendants for recovery of Rs. 13,46,349.10 p with interest on the sum of Rs 12,35,593.45 p in the Sub-Court, Erode. THE defendants were set ex pane and preliminary decree was passed in the suit on 15.4.1981. THE defendants filed application IA-249/1981 to set aside the preliminary decree and that was dismissed by the Sub-Court. THE defendants preferred an appeal before the High Court of Madras in CM A No. 417/1983 and obtained interim stay and that CM A was disposed of by the High Court on 14.12.1991. During the pendency of the CMA in the High Court and while during the stay was in force, the Bank filed an application in the Sub-Court, Erode, to pass final decree and the Sub-Court passed the final decree i" the Suit on 13.2.1984. THEreafter, the defendants filed two applications, IA-1114/91 to amend the preliminary decree in respect of the rate of interest from 21% to 6% and IA-1115/91 to declare the final decree passed in the suit as a nullity. IA-1114/91 was allowed by the Sub-Court and interest was reduced from 21 % to 6%. THE Sub-Court passed order in IA-1115/91 declaring the final decree as a nullity. While passing Order in IA-1115/91 declaring the final decree as a nullity, the Sub-Court has also passed an order granting opportunity to the plaintiff Bank to file a fresh petition for passing final decree. On the direction given by the Sub-Court to file a fresh petition for passing final decree, the plaintiff Bank filed IA-123/95 to pass final decree and notices were served on the defendants in that said IA. Before the final decree was passed and during the pendency of the petition IA-123/95, the Recovery of Debts Due to Banks and Financial Institutions (RDDB & FI) Act, 1993 (the Act) was passed and under the provisions of this Act the entire records were transferred from the Sub-Court, Erode, to DRT at Chennai and the proceedings were re-numbered as TA-23/1999 and the DRT passed Order in that TA-23/ 1999 which order is now challenged in this Tribunal.

(2.) Counsel for the appellant submits that no final decree was passed by the Civil Court and a second application for passing final decree cannot be filed and the Sub-Court, Erode, has also no power to grant liberty to the Bank to file a second application for passing final decree and without passing final decree the PO, DRT, has passed order and throughout the defendant was not heard from the beginning and even before the PO, DRT, the defendant was not given opportunity to put forth his case and as such the order passed by the PO, DRT, suffers from infirmity. He pointed out that even the final decree petition filed in the Civil Court is barred by limitation and the defendant wanted to raise two points before the DRT that without passing final decree the matter has been heard by the PO, DRT, and it is not sustainable and the final decree petition itself is barred by limitation. Counsel for the appellant submitted that the Sub-Court has no right at all to grant liberty to the plaintiff Bank to file another application for passing final decree and the Sub-Court has declared the final decree passed as a nullity since that final decree was passed during the pendency of the stay granted by the High Court and so the order passed by the Sub-Court, Erode, with regard to the final decree as nullity has become final and the Sub-Court has no right to grant liberty to file fresh application and so the subsequent application filed by the Bank for passing final decree is not maintainable and that application is also barred by limitation.

(3.) PRELIMINARY decree was already passed by the Sub-Court. Based on that preliminary decree, final decree petition was filed and during the pendency of the final decree proceedings the matter was transferred to DRT, Chennai. Since preliminary decree was already passed by the Civil Court, the PO, DRT, has to act on the decree passed by the Civil Court. The PO, DRT, has no right to interfere in the decree passed by the Civil Court and the decree passed by the Civil Court cannot be challenged in the DRT. Since during the pendency of the final decree proceedings the matter was transferred to the DRT, the PO, DRT, has to adhere to the provisions under the RDDB & FI Act and has to pass the order. As the decree has already been passed by the Civil Court, the PO, DRT, has no right to touch the decree already passed by the Civil Court and the PO, DRT, has to pass order based on the decree passed by the Civil Court and issue Recovery Certificate. After transfer to DRT, the PO, DRT, has directed the Bank to file Proof affidavit by 3.10.2000. Subsequently, on the representation made by the Counsel for the applicant Bank it was found that Proof affidavit was already filed and accordingly the PO, DRT, has posted the matter for orders on 3.10.2000 and directed the office to inform the Counsel for the defendants, in writing and produce the acknowledgement. On 3.10.2000, Counsel for both sides were present and the PO, DRT, disposed of some IAs and posted the matter to 4.10.2000 for Orders and on 4.10.2000 the PO has passed the Order. The PO, DRT, has found that preliminary decree was already passed by the Civil Court and it is a decree and that decree is a debt outstanding from the defendants and from the decree schedule properties and allowed the application and ordered issue of Recovery Certificate.