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However three can be an appeal against order for grant of Review. There is no need to issue any fresh notice to the parties on cases being transferred to DRTs from other courts. Recovery Officer does not have powers to restrict the movement of any debtor. The Recovery Officer cannot order impounding of any debtor’s passport. The Recovery Officer can demand reasonable security for the debtor to be present before him when ever required. When the order is set aside then action initiated for non compliance of that order automatically seizes to have any effect. No direction can be issued to financial institution to enter into an OTS with the borrower. The borrower cannot claim a vested right for OTS. Guidelines issued by Reserve Bank of India on classifying accounts as NPA and on offering OTS are purely executive instructions having no statutory force. These instructions do not create any vested rights in favour of the borrowers. Every act of Bank under SRFAESI Act gives raise to an cause of action to the borrower to file an appeal to the Tribunal. The limitation starts from the date of raise cause of action and not from just date of possession or notice. A borrower may not be aggrieved by the Notice of possession but may be aggrieved by the valuation or auction notice etc. The publication of possession notice in newspapers subsequent to date of possession s not does not suffer from any illegality or infirmity. The auction notice should mandatorily contain the details mentioned in the Rules. Absence of details makes the notice invalid. If notice is held to be illegal then auction pursuant to the notice cannot be sustained and has to fall through. Once possession of the secured asset is taken over by the bank restoring it back to the borrower does not arise till pendency of appeal. Only after adjudication of appeal can be decided whether possession can be restored back to the borrower. The Evidence Act is not applicable to proceedings before the Debts Recovery Tribunals. No order/ judgment of the DRT can be set aside for not following the Indian Evidence Act if Principles of Natural Justice was other wise followed. Tribunals as a rule are required to follow only Principles of Natural justice. A stranger’s evidence to a document has no meaning. Execution of a guarantee should be a conscious act to stand as a surety and not merely signing of a document. Where a signatory establishes that he merely signed a document with the intention not to part with it but by some fraudulent means it was used as a instrument of guarantee then it is no deed of guarantee. Where a person signs a guarantee deed as a director of the borrower company he cannot be held personally liable for the dues of the company. His liability cannot exceed his share in the company. Creation of equitable mortgage with the deposit of title deed has to be a conscious and intentional act on the part of the owner of the asset which has to be unambiguously proved by the bank. The power of attorney based on which an equitable mortgage is said to have been created is a vital document and should be produced by the bank in original. Unless there is cogent reasons the Debts Recovery Tribunals cannot use their discretionary powers to reduce interest pendende lite. Supreme Court’s decision in Ravindra’s case does not give Debts Recovery Tribunals blanket powers to reduce interest rates in each and every case. As a thumb rule in commercial transactions contractual rates of interest should be granted unless there are other mitigating circumstances. Where the auction-sale and subsequent confirmation and delivery of possession is carried on in such undue haste so as to preclude other serious contenders from making any effective bid leaves an impression that the entire auction process was carried on with an motive to benefit one particular person over other. Reserve price is only an indicative price and the sale need not be confirmed at that price. A confirmed sale should not be aside unless fraud or other grave malpractice is alleged. Every auction participant /intending bidder is an interested party and has the right to question the process of auction. Level playing field should be provided to every bidder It is the responsibilities of both the parties to adhere to terms of compromise strictly. Where the terms of compromise so provided that the capital will be defrayed first interest will be calculated on the monthly reducing balance only. Seizure of assets in excess of requirement for the recovery of the amount due is violation of the provisions of the SRFAESI Act. Only so much portion of the secured assets should be attached or seized as is sufficient to recover the dues. Mindless exercise of powers under SRFAESI Act creates panic amongst borrowers and calls for penal action against the officers. Unless stated specifically to the contrary the liability of a guarantor is co-extensive with that of the principal borrower. If the guarantee documents are silent it is presumed that the guarantor’s liability is coextensive with that of the principal borrower. Bank is required to produce statement of account as per Supreme Court’s decision in Ravindra’s case. If the recital says so the bank cannot change rate of interest chargeable without intimating the borrower. Where the Bank failed to produce a statement of account as directed or could not controvert the one produced by the defendant then the one produced by the defendant has to be accepted. The DRT has discretion to fix a rate of interest in the interest of justice. Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds. Reasons for delay has to be properly explained. Delay cannot be condoned just out of benevolence. As a Rule improper advice of advocate be accepted as a sufficient cause for delays. Delays in filing of appeal by Government Units is result of the procedures that they have to follow and not because there are latches. Delay can be condoned if the explanation is reasonable and there have been no latches. Amounts misappropriated by fraud etc come within the meaning of “debt” defined in the RDDBI Act. There is no need to issue any directions to the Bank to file original documents as the defendants who has misappropriated the funds wouldn’t have executed any. Where the claim of the bank is based on frauds committed by the defendants the defendant would be free to rebut claims of the banks with his own submissions. Applications seeking amendments to written statement of defence cannot be allowed when the matter is ready for trial. Counter claim cannot be allowed once evidences have been filed. The correct time to seek copies of statement of account is at the threshold stage itself and not when the case is going up for trial. Belated seeking of fresh documents and raising of fresh grounds is an attempt to only delay the proceedings. DRTs can issue a Recovery Certificate for the Recovery of the debt determined by the civil courts upto 12 from the date of the decree. The limitation available to seek execution of a decree is 12 years from the date of final decree. Where there is specific article applicable to a situation there is no need for the DRTs to apply the residuary article. The Recovery Officer has no powers to investigate and adjudicate upon the correctness of a Recovery Certificate issued by the Presiding Officer of a Debts Recovery Tribunal. The Presiding Officer of a Debts Recovery Tribunal cannot delegate any powers to the Recovery Officer to go into the competency of the bank to seek a Recovery Certificate. Once a Recovery Certificate is issued the Recovery Officer is bound to proceed to recover the amounts in terms of the Recovery Certificate. The DRTs do not have the powers to determine any other issue other than adjudication of debt between the parties. Where a financial institution terminated the lease deed and sought re-transfer of assets back to itself the financial institution must seek appropriate civil remedies and not take recourse to the forum of DRTs. The DRTs must not utilize the powers under Section 19 to determine civil disputes between the parties. The liability of sureties/ guarantors is co-extensive with that of the principal debtors. A surety /guarantor cannot insist that a Bank should proceed against the principal debtor or any particular debtor before proceeding against himself. Bank is free to proceed against any of the defendants/ judgement debtors of its choice. Bank is free to drop proceedings against any of the defendants at its discretion. Where the appeal is against an order of the DRT rejecting an prayer for cross examination of a witnesses there is no question of pre-deposit of debt claimed by the bank. The provision relating to pre-deposit of debt would be attracted only when an order of determination of liability is challenged. DRT must base its decision on judicious considerations only and not on presumptions and conjectures. Where the document produced by the defendant is challenged and denigrated as being forged views of expert should be taken rather than accept what the bank says. Where BIFR has specifically permitted the lenders to continue with the proceeding instituted against the principal borrower the guarantors cannot seek a stay on the proceedings against them. The liability of the guarantors are co-extensive vis-a-vis principal borrower. DRAT is an appellate authority constituted to hear appeals against orders passed by DRTs. They have no original jurisdiction to hear and pass orders for the first time. A party who has not participated in the proceedings before the Recovery Officer or the DRT cannot come before DRAT for the first time. The DRATs have the powers to reduce or waive off the requirement of pre-deposit of a portion of the debt due before entertaining an appeal. To waive off or reduce the amount of pre-deposit of debt the Act requires the DRATs to record the reasons therefore. It is the duty of appellant to satisfy the DRAT that he is unable to pay the pre-deposit of debt due or certain other mitigating factors which requires the DRATs to exercise their discretion to reduce or waive off the requirement of pre-deposit. Where the appellant does not show any grounds for reduction or waiver off the pre-deposit of debt due the DRAT cannot suo-moto exercise its discretion in favour of the borrower. The aim of imposition of costs is to defray the opposite party of the expenses incurred due to delays or vexatious litigations of another party. It is not proper for the DRT to direct that costs be deposited with itself. Where an application raises a mixed question of law and facts it cannot be dismissed merely as not being the right stage. The parties should be permitted to lead evidences and file their replies. Where a question of limitation is raised the parties should be given a opportunity to lead evidence and submit replies thereto. When a case is remanded back to the DRT on a limited issue the parties cannot raise new or additional or any other ground other than for what it has been remanded back. Prayer for appointment of Receiver cannot be dismissed if it involves important points. Where the applicant alleges forgery etc. and seeks stock taking of secured/hypothecated goods it must be granted. Where the Bank did not oppose the facts mentioned in the application when it was filed before the DRT they can oppose it before the DRAT for the first time. An borrower should not be made to suffer because of the omissions and commissions of his counsel. Where a borrower has been less vigilant than he has been ends of justice will be met if some exemplary costs are imposed but he should be allowed to present his side of the case before the DRT. Where the signatures are disputed it is necessary to get them examined with the help of experts. The judges must not venture to examine and compare the signatures between those of disputed and admitted ones. Provision of Section 10 of the Code of Civil Procedure cannot be applied and need not be applied to the proceedings before the DRT to stay the proceedings in Debts Recovery Tribunal on the basis that a previously instituted suit is pending before the Civil Court between the same parties. There is nothing wrong in setting aside an ex-parte order if the counsels had reported no instructions but the parties were otherwise not negligent. Where the borrow who has not filed his written statement for prolonged period and when cornered alleges that he has not been supplied with a copy of paper book is not a diligent litigant. He cannot be allowed to burden and inconvenience the Bank. Mere intention to participate at an auction does not give a person the locus standi to become an intervener or an interested party. No legal injury can be claimed if the Bank refuses to answer questions on the status of the property put up for auctions. For seeking cross examination of a witness reasons must be stated. The nature of cross examination and the persons to be cross examined should be indicated in the application seeking cross examination of witnesses. Where more than secured creditor lays claims to the same assets then any order passed by the DRT would effect the other creditors as well and they become interested parties to the case. It is not necessary that unless an order is directed against him another secured creditor cannot be affected. Where there is discrepancy in the affidavit filed by the Bank’s witnesses then the borrower should be allowed to cross examine the witnesses to arrive at the truth. Where the borrowers have denied the execution and existence of certain documents claimed by he bank then the borrowers should be allowed to cross examine the witnesses. The ex-parte order need not be set aside where the defendant/ borrower had full knowledge of the proceedings before the DRT but did not deliberately participate in the proceedings. Decision dated by Debts Recovery Appellate Tribunal Chennai Decision dated by Debts Recovery Appellate Tribunal Chennai Decision dated by Debts Recovery Appellate Tribunal Chennai Decision dated by Debts Recovery Appellate Tribunal Chennai Decision dated by Debts Recovery Appellate Tribunal Chennai Brief Banks cannot be directed to enter into One Time Settlement with the borrower. Where the borrow has concealed facts from the DRT sold of parts of the mortgaged properties without consent of the bank and generally bought time to delay repayment of debt is necessarily a willful defaulter. Where the bank has failed to produce proof to substantiate its stand or oppose the submissions made by the borrower then the submissions made by the borrower has to be accepted. If a particular piece of evidence or document is not available on the date of argument time should be sought to produce the same. Not seeking time to produce the same leads to the presumption that the document/ evidence does not exist. Auction purchaser can take possession of the property subject to any subsisting tenancy. A tenant cannot be dispossessed by the use of force. He can be dispossessed only by the due process of law. The auction purchaser can take only symbolic possession of the asset and not actual possession where tenants are living. Any act in excess of recitals in a Power of Attorney would be non enforceable as against the executor of the document. Mere acceptance of a conditional cheque for lesser amount does not make the acceptor bound by the conditions stipulated in the letter forwarding the cheque. A smaller payment by the debtor would be towards discharge of the larger amount due rather extinction of the balance amount due. Application by parties seeking to implead themselves before the DRT in order to establish their share in the family property is not maintainable. appellants to decide the share before D.R.T. is not at all sustainable. A mortgagor falsely representing himself to be competent to mortgage an asset will be bound by the mortgage after he attains competency. A possessory title can also be mortgaged. The mortgage of a possessory title will get converted into equitable mortgage on the day the mortgagor gets title to the asset. As the provisions of SRFAESI Act are very harsh and stringed they must be scrupulously followed in letter and sprit to protect the interests of the borrow. It is mandatory for the Bank to publish the notice in two leading news papers of the locality one of which should be in vernacular. Non publication of the notice as mandated vitiates proceedings initiated under the SRFAESI Act. Guarantors obligation to pay the bank is co-extensive with that of the principle borrowers. The bank has every right to attach and appropriate guarantors amount kept in ‘no-lien’ account in the bank. Bank has to explain why it deviated from its normal practice of accepting written guarantees and accepted an oral guarantee before the obligation can be fastened on the guarantor. Bank as suitor has to establish its claim through documentary evidence. Claim cannot be held to have been proved in the absence of proper documentary evidence. Where the ex-parte decree is set aside and the auction purchaser turns out be the judgment/decree holder himself then the property can be restored back to the judgment debtor. An auction purchaser has to seek possession of the property within one year of confirmation of the sale. Thereafter he has to move a suit seeking possession of the property. Where the auction purchasers were in the know of the proceedings and pending litigations they cannot be said to be bonafide purchasers without knowledge. Where the auction purchasers participated in the auction when the case was still pending they had purchased the property subject to the outcome of the case. No special protection can be given to such auction purchasers. Where breach of any provision or RBI’s instruction is cited as a ground for opposing creation of the security the onus is on the borrower to prove it. If there is any irregularity in the creation of the security it would not vitiate the security itself. Where the conduct of the guarantor/ defendant has been such as to make the bank believe that the security is for the due repayment of the loan and the guarantor did nothing to dispel the belief and on the contrary did deposit the security with the bank it is presumed that the security is for the due repayment of the loan. Only the applicant can change/amend the pleadings. Where the SFC has taken over the industrial concern and become its ‘deemed owner’ the cause title must suitably amended to reflect the current status of the principal borrower. Where person is neither the principal borrower nor a guarantor nor is he a participant in the auction proceedings he cannot be an interested party Where the bills of exchange have been discounted by the drawer and are latter dishonored by the drawee the bank is entitled to recover the amount from the drawer. It is not the responsibility of the Bank to recover the amount from the drawee. One DRT cannot stay the orders passed by another DRT. When two banks claim one and the same property as their security remedies have to be worked out either before the DRT or before the Recovery Officer. Where proceedings u/s 13 4 of the SRFAESI Act initiated by the Bank has been set aside costs should have been permitted. It is not fair to require the borrower to pay court fees every time he has to challenge every act of the Bank. There is no provision for refund of costs under the RDDBFI Act. Even though a partnership firm does not have a legal entity the assets brought in by the partners becomes the property of the partnership firm and cannot be attached for the individual dues of a partner. The property of a firm has to be first utilized for discharging the debts of the firm and only if there is any surplus share of each partners shall be made in payment of their personal debts. Bank is not entitled to attach properties /share of an individual in a partnership firm. It is incorrect to say that nothing survives in an appeal where the authorised officer has auctioned off the assets. The SRFAESI Act allows the borrower to approach the DRT when the bank auctions off the security interests. Unless the prior auction is set aside a new auction purchaser cannot enter the pricture. Unless the previous auction purchaser is put on Notice negotiations with new or subsequent offer cannot be carried on. Liability based upon the promissory note has to be claimed within a period of three years from date of execution. Claim based on security can be claimed upto 12 years. Where an document turns out to be forged the entire proceedings become vitiated and reliance cannot be placed on the earlier document even though it was orginal. Where the deed or assignment under which an substitution of an applicant is being sought is itself questioned it will call for deduction of evidence. The continuing guarantee is a guarantee which extends to a series of transactions. A continuing guarantee may at any time be revoked by the surety as to future transactions by notice to the creditor. When there is no revocation of the continuing guarantee then it is in full force till discharge of the debt O.T.S. means in simplicitor is inclusive of all costs and claims. Unless specifically stated the party is not required to pay anything extra over and above the agreed amount. SRFAESI Act does not prohibit a banker from splitting up the securities for the purpose of sales. A borrower should not be made to suffer multiple litigations just because the bank decides to split up securities and take out separate proceedings. Where the borrower has not denied his liabilities to the bank but only the extend of his liabilities no harm would be committed if the sale of the security is confirmed. The borrower can peruse his remedies before the DRT. Where the proceedings between the same parties based on the same cause of action has reached finality in a foreign court the same would be hit by the principles of res-judicata in India. An Indian Court can admit a case which has already been taken cognizance of by a foreign Court provided the case is still pending in that foreign Court. Auction purchasers are not required to make any pre-deposit of amount for filing appeal to the DRAT. Pre-deposit for filing an appeal to DRAT is only from the borrowers and guarantors and not from others. Purchaser of mortgaged property does become a borrower or debtor of the Bank. Revocation of a continuing guarantee cannot absolve the executor of the past liability. It can at best absolve him of future liabilities. Claims under a continuing guarantee cannot be hit by limitation if the account is live and the guarantor has not refused to discharge his obligations. An issue once decided even if it is through an Interlocutory Application would be hit by Res-judicata and cannot be raised in next appeal. DRT is not bound by the code of civil procedure but by Principles of Natural Justice. For reasons to be recorded a DRT can condone delay in filing written statement of defence even beyond 90 days of service of summons. Suitable costs should be imposed on the Party seeking condonation of delay to deter seeking condonation just for the asking and to compensate the other party for the inconvenience caused. Where claim of the bank has not been disputed DRTs can pass interim orders aimed at early recovery of the dues even as the main application is pending. Disposal of the main application is not mandatory for passing interim orders for the recovery of dues. There is no bar on the DRTs in passing garnishee orders even as the original application of the bank is pending for adjudication. Agreement of continuing guarantee does not increase the period of limitation available to the bank. An agreement contrary to the provisions of the statue cannot be enforced even though the guarantor had voluntarily signed it. There can be no estoppel against the statute. The surety is discharged if there is any variation in the contract without surety’s consent. The DRTs have power to entertain applications and condone delay if they are otherwise satisfied with the reasons for delay. On and from the appointed date all cases pending before the civil courts are deemed to have been transferred to Debts Recovery Tribunals. The transfer of cases to the Debt Recovery Tribunal is automatic. It is a duty cast on the civil courts to transfer the cases to Debts Recovery Tribunal. The Bank or the parties are not required to move any application seeking to transfer the cases to Debts Recovery Tribunal. On and from the appointed day the civil Courts loose all jurisdiction to hear and pass orders on Bank suits involving claims of Rs. 10 lakhs and above. A Bank guarantee is an independent contract between a Bank and its party and the Courts should refrain from going into the terms of the contract. Once the terms of the contract are met the bank guarantee is enforceable. No additional act has to be performed by the parties outside the contract. Where the right of a mortgagor to mortgage a property is challenged and the person challenging the mortgage produces a claim anti dating the date of creating an mortgage the Court must carefully examine the rival claims. Where the mortgagor does not produce the original title deeds for creating equitable mortgage it is for the Bank to ensure all possible precautions including issue of public notices inviting objections to creation of mortgage against the property filing of police complaint as well taking encumbrance certificates. A purchasers for value who has taken all precautions that a prudent man can take before buying a property will have a right against any subsisting equitable mortagage which is not disclosed by the process of normal diligence. When a Bank substitutes a contract with a new one the old one need not be enforced. Gurantors appearing in the old contract but not appearing in the new contract are not liable to answer Bank's claim. In compliance with the terms of Bank-Guarantee given by it a bank has to make payments on due dates or on demand irrespective of the fact whether or not the unit to which it has issued guarantee exists or not or has been taken over by another entity on the day the bank is required to make the payment. Where an industrial unit has been taken over by a new entity and the terms of take over required the new unit to be bound by all the terms of contract entered into by the old unit the new unit must indemnify the bank for all the payments made by it under an guarantee given to the old unit. Where in compliance with the agreement with the former borrower the Bank is required to make some payments it is bound to recover it from the person who takes over the business of the borrower lock stock and barrel. The onus is on the borrower to bring on record the nature of prejudice caused to them by the appointment of a Receiver by the DRT which they must discharge. The DRT cannot take upon itself to speak for the borrower. The liability of the guarantors is just not limited by the provisions of the Contract Act. It has to be read along with the deed of guarantee. Where the guarantors have waived off their rights under the Act the bank would within its right to ask for proceeding personally against the guarantors. An order restraining recovery proceedings against a Industrial Company issued by BIFR under provisions of SICA does not cover guarantors of the loans. Banks are free to proceed against the guarantors of the loans to the company even though they cannot proceed against the company in terms of the stay granted by the BIFR u/s 22 of SICA. A deed of guarantee executed for the benefit of the principal debtor will stand good and can be enforced even though it might have been executed non – contemporaneously. A guarantee agreement executed subsequent to the sanction of the loan is a valid contract if it was made for the benefit of the principal borrower. It is not necessary for the guarantor to execute the guarantee documents on the same day or prior to the date of sanction of the loan. Once the existence of a Power of Attorney is established presumption is that the same was subsisting on the date of getting the loan. Only contrary is required to be proved. The original power of attorney will always be with the party. Therefore it is not correct to expect the Bank to produce the same. It is for the defendant to produce the deed of cancellation of the power of attorney. The duty is heavily cast upon the defendant alone to establish and prove that the loan was given by the bank after having full knowledge about the cancellation of power of attorney. Unless this burden is discharged the defendant wholly responsible for actions taken on the basis of the Power of Attorney executed. Where the balance of convenience is in favour of secured creditor and the DRT is satisfied with the existence of a situation of possible impairment to the secured assets it can order appointment of a Receiver. Where the intention of the borrower is not to pay the secured creditor the DRT can order appointment of Receiver/ Commissioner to protect the interests of the secured creditor. The SRFAESI Act makes it mandatory for separate notices to guarantors also. Even though the man behind principle borrower and the guarantor company may be one and the same person yet a separate notice to the guarantor is mandatory. Condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is not the criterion. Acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the lower Court accepts an explanation as sufficient to condone delays the Superior Court should not disturb such finding much less in revisional jurisdiction unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. It is true that only the court that passes an order can examine it and set it aside. But after the RDBI Act came into existence the civil courts cannot examine an order if the suit amount is more than Rs. 10 lakhs. Hence DRT will have to examine such decrees. DRT is empowered to examine a decree passed by a civil court and if necessary set it aside on merits. If the Bank sends notices and summons to the address from where the borrower was corresponding then the service is proper. The onus is on the borrower to keep the bank informed of the correct mailing address. The bank cannot be expected to know by itself the correct mailing address of the borrower other than one given by him. The guarantor has no right to restrain a bank from proceedings against his properties until remedies against the principle debtor has been exhausted. The liability of the guarantor is coextensive with that of the principle borrower. The DRT and DRAT have right to stipulate the rate of interest in the interest of justice. Where operative part of the compromise deed bears the signature of the parties it is deemed that same was signed after understanding its implications. When a case has been heard and disposed of by higher forums the DRT cannot pass any other order much less a conditional stay order. When a matter has already been taken to higher forum and decided it is not open to the party to go the lower forum and file a fresh application on the same issue. Claim based on a insurance policy is a not a debt and cannot be agitated before the DRT. The DRT has the power to fix rates of interest on debts determined as due. The DRTs and DRATs have the power to fix rate of interest for the period when the case was instituted till its payment. Pre suit amount attracts interest at RBI rates. Court fees cannot form part of suit amount. voluntary insurance premia paid by the bank cannot form the suit amount and levied on the borrower. Decision dated by Debts Recovery Appellate Tribunal Allahabad Decision dated by Debts Recovery Appellate Tribunal Allahabad Once S. 13 2 Notice has been issued bank need not separately inform that the property is being auctioned/ sold. Inadequacy of auction amount is not a ground for setting aside an auction. The borrower/ owner of the asset has the power to deposit the full loan amount and redeem the property till the time of auction. Once auction has been concluded the owner has no right in the property. Decision dated by Debts Recovery Appellate Tribunal Allahabad Decision dated by Debts Recovery Appellate Tribunal Allahabad Decision dated by Debts Recovery Appellate Tribunal Allahabad Decision dated by Debts Recovery Appellate Tribunal Allahabad There is no need for cross examination of witnesses where only points of law are to investigated. Whether the larger or shorter limitation under mortgage decree or personal guarantee would be applicable is a question of fact and law which does not need cross examination of witnesses. The party too is equally responsible if it fails to ascertain as to why their counsel absented from the case. A party cannot plead that it was unaware of the absence of its counsel for over long period of time. It should have ascertained the position. Where the borrower wishes to file an appeal against the auction of the assets he must do so within 30 days of the auction after depositing the due amount. Directions for compliance issued by the DRT must be scrupulously followed. The submission that some confusion lead to non compliance with the directions of the DRT cannot be accepted particularly when the counsel was present when the directions were issued. A representation under SRFAFESI Act should be made to the authorized officer. Writing letter to some authority in the bank is not representation within the meaning of SRFAESI Act. It must be addressed to the authorized officer. When the bank was not represented before the High Court it was the duty of the guarantor to put the Bank on Notice about any orders that the High Court might have passed. When a person signs and delivers a blank document it is presumed that he intended that the document be filed up latter. A suit based on signed promissory note can be decreed irrespective of any submissions to the contrary its execution was irregular. The RDDBFI Act and the SRAFESI Act are two independents Acts and filing of appeal is governed by the provisions in the respective Acts. Where there reasons for delay has not been satisfactorily explained the prayer for condonation for delay is liable to be rejected. Under the SRFAESI Act the DRATs do not have any power to extend the period of limitation for filing an appeal against the order of the DRT. The party too is equally responsible if it fails to ascertain as to why their counsel absented from the case. A party cannot plead that it was unaware of the absence of its counsel for over long period of time. It should have ascertained the position. If despite repeated time being granted the bank is unable to clarify its position the appeal needs to be dismissed. Dismissal of an appeal for not taking a stand and/or clarifying an position on a issue does not amount to dismissal for default and cannot be reviewed. Where the bank has filed an application before the BIFR seeking permission to proceed against the borrower-company and the same is pending the DRT cannot proceed in such matters. DRTs can proceed to hear cases against companies where there is no specific stay order granted by the BIFR. Person claiming to be bonafide purchaser without notice should substantiate his stand. A person claiming himself to be a bonafide purchaser without notice and who had also been arraigned as an defendant before the DRT must necessarily make pre-deposit of debt for filing an appeal. If some documents are there in the custody a party the same can be or should be considered for the proper adjudication of the case on the principle of natural justice. Documents can be accepted at a later stage also during the pendency of the proceedings if those documents are considered to be vital for the purpose of coming to the just decision in the litigation and for ends of justice Amounts paid to a borrower on forged Demand Drafts is an ‘debt’ within the meaning of RDB Act. Even though the Bank’s own employee had forged the Demand Drafts and benefited from it the borrower into whose account the amount were transferred has to repay the bank. Pendency of criminal complaints against the forger of Demand Drafts has nothing to do with proceedings before the DRT. Suit for declaration injunction and specific performance arising out of debt cannot be entertained and decided by the Tribunal constituted under RDDBFI Act. Suit for damages cannot be transferred to the DRT. Proceedings before DRT cannot be stayed because of pending Civil and Criminal Cases against the bank filed by the borrower. A compromise should be drafted properly in order to show that both the parties agreed to abide by it. A compromise deed must bear the signature of both the parties to show that they had agreed to the terms and conditions therein. When there is written contract between the bank the borrower and the contract is not contrary to the provisions prescribed by they RBI there is nothing wrong in charging interest at contractual rate of interest and compounding it at periodical rests. Principles of promissory estoppel cannot be applied when there is one sided letters from the Borrower and the there no corresponding letter from the side of the Bank. What was not pleaded before the DRT cannot be argued before the DRAT. Where the borrower/ judgment debtor has deliberately delayed and dragged the case they must suffer its consequence. No procedural arguments can be entertained from a borrower who has resiled from the compromise /settlement entered into earlier. A person claiming to be a tenant of the borrower must get a suitable order from the court of competent jurisdiction and not seek an order from the DRT. The DRT and the Recovery Officer do not have any powers under the RDDBI Act to decide tenancy and ownership issues. Right of possession of auction purchaser should be insisted first and the object should move the appropriate court for When defendants deny their signatures it is for the courts to take a decision whether an expert advise should be taken in the matter. When experts differ in their opinion the courts must form their opinion. The courts cannot compare signatures themselves. When parties disagree with an opinion they must take immediate steps in the matter. Sufficient ground for setting aside ex-parte judgment is to be established by the person who claims that he had no knowledge of the proceedings which resulted in ex-parte judgment. The appellant must file the affidavit of the person through whom he claims to have come to know about the ex-parte judgment. An ex-parte judgment cannot be set aside where the facts and evidence clearly point that the defendant had knowledge of the case. The secured creditor is not obliged to first proceed against the principle borrower and only then proceed against the guarantor. Where the affidavit filed by the bank officer has not been discredited there is no need to call for an expert to examine documents claimed to have been before the deponent. For seeking amendments after commencement of trials it should be shown that that inspite of due diligence amendment sought could not have been sought earlier. Rulings can be cited at the time of arguments and need not be specifically placed in the pleadings. The Tribunal is empowered to decide the application of the banks and financial institution on the basis of affidavits. The Presiding Officer can himself compare and examine the admitted and questioned signatures. A mortgagor simpliciter is responsible only to the extent of the mortgage. He cannot be held personally liable for the dues. When an error in statement of accounts is found the amount cannot be simply deducted. The source of the error has to be traced and there after the accounts has to be recalculated after deducting interest on the said amount. The DRT can fix rates of interest where the bank documents are at variance on the issue. Where loan has been sanctioned against pledged articles the bank has to first proceed against the pledged articles and only thereafter against the guarantors/ mortgagors. Where no action has been taken against pledged articles the bank is duty bound to explain it. Where an allegation has not been denied it is to be construed as true and it is the discretion of the DRT to admit any evidence to the contrary or not. An Garnishee order should be sought only if the security available is not sufficient to meet the requirement of loan repayment. The application seeking an Garnishee Order must have all the ingredients mentioned in Order XXXIX Rules 1 and 2 of the CPC. When siphoning of funds is alleged it must be explained what is going to happen to the funds. Use of funds as and when it becomes available in the business of the borrower does not amount to siphoning off of funds. If the borrower was dead on the date of paper publication it cannot be construed as Notice either on the borrower on the legal heirs. Knowledge of one of the partners about the proceedings is construed as knowledge of all the partners. Negotiations for compromise settlement cannot extend limitation. Decision Dated 31-07-2006 R.A. NO. 522 OF 2005 DECIDED ON 31st JULY 2006 by Debts Recovery Appellate Tribunal Allahabad If the borrower shifts his residence the onus is on the borrower to keep the bank informed about such shifting. Even if there is any technical flaw in the service of the notice by the Tribunals the ex-parte judgment cannot be set aside when the appellants had full knowledge about the proceeding. The DRT should not dismiss the suit as a whole on the grounds of limitation. Where personal liability is barred by limitation then mortgage decree should be explored. Mere enhancement of the loan amounts does not make the guarantee void. Guarantee remains valid for the original contracted amount. It cannot be accepted that an educated and learned person would sign blank documents. No appeal can lie against an order of DRT restoring an application. A Review is the only remedy. Review can be maintained only if some new facts have come to light which were not known at the time of arguments despite due diligence or some evidence could not be produced or due to some mistake or error apparent on the face of record or for any other sufficient reason. Whether or not there has been misjoinder of parties can be decided only after pleadings have been completed. It is not proper to order for deletion of names of parties even before they had filed their written statement of defenses. There is no need to give any individual notice to the borrowers when the case was transferred to the DRTs with their knowledge. Ex-parte order cannot be set aside where the borrowers did not participate in the proceedings despite being in the know of it. Unless the Circulars issued by the Reserve Bank of India specifically mentions that they are outside Sec. 21 or 35 of the Banking Regulation Act it must be construed to have been issued within four corners of the Banking Regulation Act. A NPA cannot become a PA merely if a few transactions are carried out in it. When the compromise settlement/proposal is with the Bank’s officials and the proposals has not been turned down it is deemed to be under consideration of the Bank. Simultaneous proceedings under SRFAESI Act and RDBFI Act not permissible. When an application is pending before DRT the Bank cannot initiate proceedings under SRFAESI Act. Bank has to first withdraw its case from the DRT before initiating case under the SRFAESI Act. The party breaching a compromise cannot claim benefit of any clause under it. When compromise is challenged all aspects including jurisdiction of the court recording the compromise must be examined. Seeking cross examination is not a matter of right before the DRTs The person seeking cross examination needs to establish that the same is essential to his defence. Allegations that the blank documents were signed and handed over to the Bank official cannot be accepted. It is an attempt to delay the proceedings. Appeals can be filed against Interlocutory Orders of the DRTs. Whether or not cross examination should be permitted is the subjective satisfaction of the Presiding Officer alone. Provisions of Sections 60 137 138 of Evidence Act are not applicable. Grounds must be shown which are proper and justifiable to the satisfaction of the DRT so that it can permit cross-examination. When dismissing an application seeking to cross examine Bank’s witness and then to file an counter affidavit the DRT must give an opportunity to the borrowers to file a counter. There is a strong presumption that notices were properly served when all the defendants reside at one and the same address and one of them causes appearances and participates in the proceedings. When all the defendants reside under the same roof and one of them participates in the proceedings the presumption is that all the defendants were in know of the proceedings. Even if the DRT has committed some technical irregularity in the proceedings the same would not assist the defendants in restoring the application if the defendants had knowledge of the proceedings but willfully absented themselves from the proceedings. An ex-parte decree can not be set aside on the ground of irregularity in the service of summons if the defendant had knowledge of the proceedings Jurisdiction of DRT to hear a claim application has to be decided when a suit arising from the same cause of action is pending a civil court. Publication of Notices in a News Paper as the only step taken to serve notices is not a good service particularly when addresses of the defendants were known to the Bank. Whether the News paper in which summons were published has a good circulation in the area where the defendants reside is a point that should be kept in mind for considering due service. An application for setting aside a sale filed beyond the mandatory 30 days period should not be admitted particularly if it is not accompanied with the requisite deposits. Sec. 29 of the RDDBFI Act grants some discretion to the Recovery Officer who may accept an belated application seeking setting aside a sale provided such discretion even if applicable must be with adequate reasons. Under the Income Tax Act the territorial jurisdiction of the auctioning officer is very limited where as under the RDDBFI Act the jurisdiction of the Recovery Officer is very wide. Therefore some discretion has been permitted to the Recovery Officer in accepting bid money and the balance money with modification of the rules and also with discretion of as far as practicable. If cross examination is required by either of the parties and the witnesses can be produced then the evidence should not be relied on the basis of affidavit alone. Where the main borrower does not contest the claim of the bank it amounts to admittance to the claim of the bank. Guarantor's defence is limited where the main borrower has admitted to the claim of the bank. If the records of the DRT are not complete the DRAT is left with not alternative but to remand the case bank to DRT for necessary compliance. Where the instrument presented by a account holder turns out to be forged the account holder cannot be proceeded against unless they have got themselves unduly enriched. The amount under a forged document /instrument cannot be treated as ‘debt’ within the meaning of RDB Act. When goods are pledged with the Bank and it is in their lock and key it is the responsibility of the Bank for its safe custody. Any allegation of fraud forgery replacement of pledged goods should be backed by police case and necessary action. Where there is no allegation of locks and seals being broken and the keys were in the custody of the Bank the presumption is that the goods pledged were what they were purported to be. In an appeal against a purely interlocutory order in a pending proceeding before the D.R.T. then fees as prescribed under Rule 8 2 of the D.R.A.T. Procedure Rules is inapplicable. The fees payable in the Memo of Appeal against an interlocutory order shall be the fee prescribed for the purpose of application before the D.R.Ts. and D.R.A.Ts. i.e. Rs. 10/- before amendment and Rs. 250/- after amendment. Where the party had been acting mischievously to evade the legal process it deservers no sympathy at the hands of the Courts. Poverty cannot be ground for not participating in the legal process. The party must seek legal assistance from the Court. Limitation must be explained on day to day basis. Non explanation of delays in preferring appeal is fatal. The Presiding Officer does not have powers to fix rates of interest for periods before the date on which an application is field in the DRT. Where the Bank has not filed separate statement of accounts in respect of interest and capital portion any amount deposited should be construed to have been deposited in respect of the claim amount and shall be deductible from the capital portion. Non disbursal of the sanctioned amount and non cooperative attitude of the Bank towards the borrowers can be ground for reduction of interest but it cannot be a ground for reduction of claim amount. Even though no Recovery Certificate has been issued the Presiding Officer can order sale of properties as long as the amount recovered is within the liability admitted by the borrower particularly when the decree of compromise has not been complied with. Section 19 18 e of the RDB Act read with Rule 12 5 of the Debts Recovery Tribunal Procedure Rules 1993 permits the Presiding Officer to order sale of properties under jurisdiction of another DRT as well as during pendency of an application. The whole motto behind the enactment of the RDDBFI Act is to recover the public money and in such process of recovery principle of natural justice and equity should prevail. As such admitted amounts can be recovered without having to wait for the entire proceedings to end. Such sale process has not gone beyond the admitted dues of the bank. In that case the appellants are just buying time and creating troubles to satisfy even the admitted dues of the respondent-bank. Thus I do not find any force in this appeal hence the same is rejected. As the guidelines issued by the RBI are under the Banking Regulations Act they some binding effect on the financial institutions. Violations of these guidelines gives some right to the borrowers. It is true that a rehabilitation package depends upon a number of factors. But a Bank cannot sit over the package endlessly without taking any decision. Deposit of margin money is only after sanction of rehabilitation package. Where no rehabilitation package was sanctioned there was no question of deposit of margin money. Where the Bank endlessly kept the borrower waiting in expectation of the rehabilitation package which it did not sanction the Bank must suffer its consequences. Auction once made cannot be set aside lightly. Non publication of the proclamation in the local language does not vitiate the auction sale if bidders have been present and the reserve price has been met. Where the judgment debtor has not deposited the requisite amount he cannot seek to set aide the sale already conducted. Bank is not bound to forward the invoices for collection from the overseas buyer even though the C F value was not declared at the time of customs clearance of the goods. It is the responsibility of the exporter to produce all the necessary documents so that the Bank can negotiate the bills with the importer. I If there is any deficiency of the documents it is for the exporter to supply the same so that the Bank can negotiate it. If the importer cancels the order for the delay the responsibility is that of the exporter and not the banker. Normally dematerialization requires to be completed within 15 days from the date of receipt of the application. Any dealy in initiating the process is deficiency in service. If there is any negligence in dematerialization of a account by a Bank the NSLD is required to pay the amount to the applicant and thereafter recover the same from the Bank. A proposed/prospective borrower is a ‘consumer’ under the Consumer Protection Act 1986 in as much the bank would recover interest as consideration for the loan granted. The Bank was the implementing agency of the Prime Minister Rojgar Yojana. As per the scheme loan was to be disbursed on the basis of the recommendations made by the concerned Manager of the District Industries Centre. As there was delay in disbursal of the loan despite compliance with the scheme there was ‘deficiency in service’. Where the cheque was wrongfully dishonored compensation should be in proportion to the damages suffered. Where no damage was suffered by the complainant no damages can be allowed. Punitive costs for deficiency of service should be borne by the Bank officers dividing it proportionately where there are more than one functionary is involved. Decision of NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI dated 05-12-2006 in the matter of Bihar State Sugar Corpn. Ltd. V/s State Bank of India Delays in communicating and corresponding between two Banks cannot be considered to be in a normal course and cannot be fastened to the account holder. It is the responsibility of the Bank to properly communicate with their partners and the account holder cannot not be put to loss on account of such miss correspondence. It is the responsibility of the account holder to ascertain and make himself conversant with the implications of premature withdrawal of fixed deposits. This responsibility cannot be shifted to the Bank. Mere pendency of criminal proceedings cannot operate as a bar for the continuation of proceedings under the Consumer Protection Act to determine if there was any deficiency of service on the part of the Bank resulting in the loss of articles kept in the locker. Criminal proceedings have no relevance for enforcement of civil liberties. Whenever a locker is broken open it is mandatory for the Bank to prepare an inventory of the articles found therein as per procedure prescribed by the RBI. If such a inventory is not prepared there is deficiency of service and the claim made by the hirer of the locker is to be believed if other facts support it There is nothing wrong in keeping jewellery of their children in the locker of elders/parents. This does not amount to subletting of the locker. Where loss of cheque was intimated to the account holder well within the limitation period the liability of the Bank would be limited to deficiency of service and not the value of cheque. The correct course of action on the part of the drawee is to file a suit for recovery of the cheque amount from the drawer. Where loss of cheque was intimated to the account holder well within the limitation period the liability of the Bank would be limited to deficiency of service and not the value of cheque. The Branch Manager Indian Bank v. Shri. K. Swamanna Decision dated 17-07-2006 in Reverse Petition No. 104 of 2005 by National Consumer Disputes Redressal Commission New Delhi. Once the title of collateral security is in dispute it cannot be said that the bank was unjustified in any manner in refusing the release of the sanctioned loan. A Banker in exercise of its lien under Section 171 of the Contract Act cannot straightway appropriate the money deposited by a guarantor in FDR without any bailment and without informing the guarantor. Money does not come within the meaning of the word ‘goods’ as defined u /S. 171 of the Contract Act r/w S. 2 7 of the Sale of Goods Act 1930 and thus cannot be bailed out. Banking - mistake of the bank in debiting the account – bank cannot charge interest on that amount for its own mistake. The onus is on the complainant to prove that there was deficiency of service on the part of the Bank. The letter of communication was addressed to the Zonal office instead of to the Branch. Therefore there was a delay of receipt of communication by the Bank. The delay in receipt of communication by the Bank cannot be held against the Bank. If the Bank acts bonafide and with reasonable speed on receipt of the communication it cannot be held to be a deficiency of service. Where the loan amount stood repaid the Bank should return the documents immediately. Unjust and reasonable dealy in the return of the documents is a deficiency of service on the part of the Bank. The Bank ought to have returned the doucments within a reasonable time. The onus is on the complainant to show sufficient causes which prevented him from filing the complaint within the prescribed of limitation. The Commissin should be slow in exercising its powers under Section 24A 2 of the Consumer Protection Act 1986 for condoning delays in filing of complaints. The necessity for recording reasons while condoning delays is for this reason so as put the Commission on guard while condoning delays The complainant learnt that her husband had opened a account jointly in her name. The husband had opened the account and was operating it without her permission. It was held that the complainant cannot be held to be aggrieved by the Bank allowing the husaband to open and operate the account. The wife has no locus-standi to approach the Forum with the complaint. Compensation claimed should have some bearing to the sufferings. Excessive claims against the Bank is abuse of the process of Consumer Protection Act and is liable to be dismissed with costs. Complainant opened a joint account along with his wife. The complainant had opened the account without taking his wife's permission. The stopping of operation of such a account by the Bank did not amount to deficiency in service. Where the draft issued by the Bank was defective compensation would be related to the events surrounding that particular draft only. The compensation claimed should not be linked to events that are too remote to cause of action being shown. Banks are bound to provide information relating to their internal notings study reports etc having a bearing on constituents of the bank. Refusal of the DRT to provide information/ document does not make the document beyond the preview of accessibility of the public. Refusal of DRT to provide the information is not a limitation for the party to seek the same information through the RTI Act. In a case under the negotiable instrument the accused need not disprove the prosecution case completely. Merely creating a probability of doubt of probability is sufficient. In a case under the NI Act the onus on the defendants is not onerous and is comparable to that of civil case. Where non service of notice/ summons has been raised it is necessary to examine the entire evidence and come to a positive conclusion whether or not service has been effected. Right to appeal is an substantive right and is well structured in a civil proceedings. 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