TMI Blog2020 (1) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... r period within which to file a review petition, namely, 60 days. This period was cut down, by amendment, with effect from 04.11.2016, to 30 days. From this two things are clear: one, whether in the original or unamended provision, there is no separate power to condone delay, as is contained in Section 20(3) of the Act; and second, that the period of 60 days was considered too long and cut down to 30 days thereby evincing an intention that review petitions, if they are to be filed, should be within a shorter period of limitation otherwise they would not be maintainable. Section 22(1) of the Act makes it clear that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, making it clear thereby that Order XLVII Rule 7 would not apply to the Tribunal. Also, in view of Section 20, which applies to all applications that may be made, including applications for review, and orders being made therein being subject to appeal, it is a little difficult to appreciate how Order XLVII Rule 7 could apply at all, given that Section 20 of the RDB Act is part of a complete and exhaustive code - The High Court, in holding that no appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent-Company against the said order before the DRAT on 14.11.2017. While the appeal was pending, Review Application No. 1 of 2018 was filed on 18.12.2017 before the DRT by the respondent-Company after the appeal that was lodged earlier in point of time was withdrawn by the respondent-Company on 02.01.2018. (vii) In the meanwhile, an application dated 16.02.2018 was made to condone a 28 day delay in filing the review petition before the DRT, the period of limitation under Rule 5A of the Debt Recovery Tribunal (Procedure) Rules, 1993 (hereinafter referred to as the Rules ) being 30 days. This review petition was dismissed by the DRT on 21.04.2018, in which this Court s judgment reported in International Asset Reconstruction Company of India Limited vs. Official Liquidator of Aldrich Pharmaceuticals Limited and Others, (2017) 16 SCC 137 was followed, and Section 5 of the Limitation Act, 1963 was held not to be applicable to review petitions that were filed under Rule 5A of the Rules. A further plea to exclude time taken under Section 14 of the Limitation Act, 1963 was also dismissed by the DRT stating that a filing of the review petition after the appeal would show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 24 of the RDB Act, and this being the case, a review application, being an independent proceeding, could not be subsumed within the expression application contained in Section 24 of the RDB Act. He also cited the judgment reported in Kamlesh Verma vs. Mayawati and Others, (2013) 8 SCC 320 to buttress the submission that a review petition cannot be equated with the original proceeding. Further, contrasting Rule 5A of the Rules with Section 20 of the RDB Act, since peremptory language has been used in the said rule, making it clear that a review petition filed beyond 30 days would have to be dismissed, coupled with the fact that no provision for condonation of delay, as in Section 20, is contained in Rule 5A would also make it clear that the impugned judgment has to be faulted on this ground as well. 4) Mr. Amar Dave, learned Advocate appearing on behalf of the respondent, stoutly resisted each one of these contentions. First and foremost, he asked us to consider the fact that the O.A. before the DRT was in 2012, and it is only after waiting for five years that a thoroughly frivolous application was taken out in 2017 for a judgment on admission. He also adverted to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) any of the defendants, where there are more than one, at the time of making the application, actually and voluntarily resides or carries on business, or personally works for gain; or (c) the cause of action, wholly or in part, arises xxx xxx xxx (2) Where a bank or a financial institution, which has to recover its debt from any person, has filed an application to the Tribunal under sub-section (1) and against the same person another bank or financial institution also has claim to recover its debt, then, the later bank or financial institution may join the applicant bank or financial institution at any stage of the proceedings, before the final order is passed, by making an application to that Tribunal. xxx xxx xxx (5) (i) the defendant shall within a period of thirty days from the date of service of summons, present a written statement of his defence including claim for set-off under sub-section (6) or a counter-claim under sub-section (8), if any, and such written statement shall be accompanied with original documents or true copies thereof with the leave of the Tribunal, relied on by the defendant in his defence: Provided that where the defendant fails to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted with the Appellate Tribunal fifty percent of the amount of debt so due from him as determined by the Tribunal under section 19: Provided that the Appellate Tribunal may, for reasons to be recorded in writing, reduce the amount to be deposited by such amount which shall not be less than twenty-five per cent of the amount of such debt so due to be deposited under this section. 22. Procedure and powers of the Tribunal and the Appellate Tribunal. - (1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings. (2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely: (a) xxx xxx xxx (e) reviewing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice to the opposite party to enable him to appear and to be heard in support of the order, a review of which is applied for. Rule 7 of the Rules states as follows: 7. Application fee (1) Every Application under section 19(1), or section 19(2), or section 19(8), or section 30(1) of the Act, or interlocutory application or application for review of decision of the Tribunal shall be accompanied by a fee provided in the sub-rule (2) and such fee may be remitted through a crossed Bank Demand Draft drawn on a bank or Indian Postal Order in favour of the Registrar of the Tribunal and payable at the place where the Tribunal is situated. (2) The amount of fee payable shall be as follows:- S.No. Nature of Application Amount of Fee Payable 1. Application for recovery of debts due under section 19(1) or section 19(2) of the Act ₹ 12,000 (a)Where amount of debt due is ₹ 10 lakhs (b)Where the amount of debt due is above Rs. for every one 10 lakhs ₹ 12,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. What is clear is that an application for review cannot possibly be said to be an application filed under Section 19 even on a cursory reading of the provisions of the Act, as it traces its origin to Section 22(2)(e) read with Rule 5A of the Rules. 7) As a matter of fact, applications that are made to the Tribunal under Section 19 of the Act are only made in order to recover a debt from any person. Even Section 19(2), which is strongly relied upon by Shri Dave, makes it clear that another bank or financial institution may join an applicant bank or financial institution at any stage of the proceeding before the final order is passed by making an application against the same debtor for debts owed to such other bank or financial institution. Also, under Section 19(5) of the Act, a written statement may include a claim for set-off and/or a counter-claim and under Section 19(18) of the Act, interim orders may be passed in applications filed for recovery of debts under Section 19 of the Act. All this must be contrasted with an application for review that is filed under Section 22 (2)(e) of the Act read with Rule 5A of the Rules. Such applications are not for recovery of debts but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . An appeal lies against the order of the Tribunal under Section 20 before the Appellate Tribunal within 45 days, which may be condoned for sufficient cause under the proviso to Section 20(3) of the Act. The Tribunal issues a recovery certificate under Section 19(22) to the Recovery officer who then proceeds under Chapter V for recovery of the certificate amount in the manner prescribed. A person aggrieved by an order of the Recovery officer can prefer an appeal before the Tribunal under Rule 4, by an application in the prescribed Form III. Rule 2(c) defines an application to include a memo of appeal under Section 30(1). The appeal is to be preferred before the Tribunal, as distinct from the Appellate Tribunal, within 30 days. Section 24 of the RDB Act, therefore, manifestly makes the provisions of the Limitation Act applicable only to such an original application made under Section 19 only. The definition of an application under Rule 2(c) cannot be extended to read it in conjunction with Section 2(b) of the Act extending the meaning thereof beyond what the Act provides for and then make Section 24 of the RDB Act applicable to an appeal under Section 30(1) of the Act. Any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 5 of the Limitation Act by resort to Section 29(2) of the Limita- tion Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act. 10) The judgment of this Court makes it plain, though in a slightly different context, that the only application that is referred to by Section 24 of the RDB Act is an application filed under Section 19 and no other. This being the case, an application for review, not being an application under Section 19, but an application under Section 22(2)(e) read with Rule 5A of the Rules, this judgment would apply on all fours to exclude applications which are review applications from the purview of Section 24 of the RDB Act. 11) However, Mr. Dave laid great stress on paragraph 12 of the said judgment and, in particular, the sentence had the proceedings before the Recovery Officer deemed to be before a Tribunal, entirely different considerations may have arisen . From this sentence, the learned counsel sought to infer that it would not only be applications un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d provision, there is no separate power to condone delay, as is contained in Section 20(3) of the Act; and second, that the period of 60 days was considered too long and cut down to 30 days thereby evincing an intention that review petitions, if they are to be filed, should be within a shorter period of limitation otherwise they would not be maintainable. 15) We are also of the view that the High Court wrongly applied Order XLVII Rule 7 of the Code of Civil Procedure. Order XLVII Rule 7 states as follows: 7. Order of rejection not appealable - Objections to order granting application.- (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. (2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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