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TMI Blog1999 (10) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... im involves more than Rs. 10 lakhs in respect of the claim of bank. In this case, the claimant is Bank of Maharashtra. So before considering the request of the applicant for issuing the judge's order, I have to answer this question. The learned counsel for the applicant, Samdhani, contended that in execution of a decree even if the decree is more than Rs. 10 lakhs it will not come under the provisions of section 31 of the Act and is not required to be transferred to the Debt Recovery Tribunal. He submits that 'other proceedings' appearing in section 31 will not take in the execution proceedings. In order to substantiate his argument he brought to my notice various provisions of the Act and tried to demonstrate in the light of section 44A of the Code of Civil Procedure, 1908 that it is not the intention of the Parliament. He contended that if this execution petition is included in the other proceedings under section 31, how the Debt Recovery Tribunal execute a decree coming under section 44A. The circumstances exclude execution proceedings by implication in the period of the other proceedings. According to me, this is not the correct approach in interpreting a statute. I shall extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant to show cause within thirty days of the service of summons as to why the relief prayed for should not be granted. (4) The Tribunal may, after giving the applicant and the defendant an opportunity of being heard, pass such orders on the application as it thinks fit to meet the ends of justice. (5) The Tribunal shall send a copy of every order passed by it to the applicant and the defendant. (6) The Tribunal may make an interim order (whether by way of injunction or stay) against the defendant to debar him from transferring, alienating or otherwise dealing with, or disposing of, any property and assets belonging to him without the prior permission of the Tribunal. (7) The Presiding Officer shall issue a certificate under his signatures on the basis of the order of the Tribunal to the Recovery Officer for recovery of the amount of debt specified in the certificate. (8) The application made to the Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application finally within six months from the date of receipt of the application. 25. Modes of recovery of debts.-The Recovery Officer sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if necessary, prescribed under section 25 of the Act. 4. As we have already seen, the word debt would take in a decree of a civil court which is recoverable or executable, on the date of the application filed under section 19. The Supreme Court, in the recent decision, stated this legal position in the case of State Bank of Bikaner and Jaipur v. Ballabh Das & Co. [1999] 98 Comp. Cas. 219 . In para 8 of the said judgment, the Supreme Court has observed that : "According to the definition, the term 'debt' means liability which is alleged as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions, it should have arisen during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force. The liability to be discharged may be in cash or otherwise. It would be immaterial whether the liability is secured or unsecured or whether it is payable under a decree or an order of any civil court or otherwise. However, it should be subsisting and legally recoverable on the date on which proceedings are initiated for recovering the same." (p. 223) 5. As th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, the said execution proceeding can be continued by the execution court and need not be transferred to the Tribunal under section 31 even though 'other proceedings' appearing in section 31 will include execution proceedings. Adverting to the argument of Samdhani based on section 44A of the Code of Civil Procedure, according to me it is not the correct approach in interpreting a statute. The emphasis of this argument, is the inability to execute a foreign decree by the Tribunal. According to him so long as such incapabilities of the Tribunal do exist, we cannot assume such a power of execution of a decree is given to the Tribunal. In the light of the interpretation given by me to section 31, I am unable to accept the submissions made by Samdhani. 8. However, a learned Judge of this Court mainly interpreting the words 'other proceedings' has already held in Chamber Summons No. 963 of 1998 in Execution Application No. 2 of 1993 that execution proceedings pending before the civil court at the commencement of the Act are not liable to be transferred to the Debt Recovery Tribunal under section 31 of the Act. Though, dissenting with the reasoning of my brother F.I. Rebello J., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in hand. 11. Before adverting to the facts of this particular case, it is necessary to ascertain the date on which the Tribunal was established in the State of Maharashtra. The Act though came into force, statutorily on 24-7-1993, in sub-section (3) of section 1, the statute could not have been implemented in the absence of the notification envisaged under section 3 of the Act till 16-7-1999. Sub-section (2) of section 3 reads thus : "The Central Government shall also specify, in the notification referred to in sub-section (1), the areas within which the Tribunal may exercise jurisdiction for entertaining and deciding the applications filed before it." 12. As per the above provision it is for the Central Government that by notification, to specify the areas covered under each Tribunal in deciding the applications before the Tribunal. Obviously this is for facilitating the Central Government to constitute the Tribunal for more than one States or bring two territories under one Tribunal taking into account the number of disputes that can be dealt with by the respective Tribunal. Accordingly the notification that is applicable to the territory of State of Maharashtra to bring unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine in this case as to whether without a formal application for execution of the decree to the court and without invoking the power under Order 21, the decree could be executed. For all practical purposes, out of sheer expediency, I treat the letter dated 5-8-1992, addressed by the advocate for the applicant to the receiver appointed by this court, as an application for execution. Consequently as on 16-7-1999, the said execution proceedings are continuing in this court and, therefore, as held in earlier paragraphs this execution proceedings need not be transferred to the Debt Recovery Tribunal notwithstanding the fact that the claim is beyond Rs. 10 lakhs. Consequently the applicant is entitled to the following orders :
16. That the receiver appointed in this case is directed to accept the offer of Umang Enterprises and on receiving the aforesaid amount it can be kept in receiver's custody till further orders. The receiver is also directed that on the making of such payment by Umang Enterprises, it should hand over to the said Umang Enterprises all the hypothecated securities lying in the factory of the first defendant.
17. The judge's order is disposed of accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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