JUDGMENT
A.B. Mukherjee (Retd.), J. (Chairperson)
1. The appeal arises out of order dated 5.3.1999 passed by the learned Presiding Officer, Debts Recovery Tribunal-I, Calcutta, by which the payer regarding non-payment of fee contained in the application made by the appellant Bank was rejected.
2. Being aggrieved the present appeal has been filed alleging that the impugned order is bad in law since the appellant Bank already paid Court-fees in accordance with rules while they filed the claim case before the Civil Court which was later decreed. Since the decree was not executed and in the meantime, the Recovery of Debts Due to Banks and Financial Institutions Act came into force the appellant Bank had to file an application before the
Tribunal under Section 19 praying for execution of the decree of the Civil Court in accordance with law. But the learned Presiding Officer, on the basis of the report of the learned Registrar of the Tribunal, directed payment of the fees in accordance with Rule 7 of the Debts Recovery Tribunal (Procedure) Rules and the exemption petition filed by the Bank was rejected by the impugned order.
3. The appeal is being resisted by the respondent.
4. The point for determination is, whether the order of the learned Presiding Officer can stand ?
5. I have heard the learned Advocates representing both the sides. It was contended on behalf of the appellant that they obtained a decree from the Civil Court before the promulgation of the Act and at that time, they paid the Court-fee in accordance with law. Since the Act came into force after passing of the decree and before execution case could be started in the Civil Court, they had to file an application under Section 19 before the Tribunal which was in effect starting of an execution case to realise the decretal dues. It is also submitted that the direction of the learned Presiding Officer, DRT-I for payment of Court fee again would amount to double taxation.
6. On the other hand, it has been argued by the learned Advocate for the respondent that the order in question was in accordance with law and the proper procedure for the decree-holder would have been to file an execution case in the Civil Court and thereafter to get it transferred to the Tribunal.
7. After giving my anxious consideration to the submission of both the sides and scrutinising the order of learned Presiding Officer, it appears to me that the learned Presiding Officer relying on the definition of debt under the Act directed payment of fee in accordance with Rule 7 of the DRT (Procedure) Rules. The course of action chosen by him invariably leads to payment of fees twice. It cannot be said that the decree-holder in such circumstances is required to file execution case in the Civil Court itself and thereafter to get it transferred in accordance with Section 31 of the Act. The position has been made clear by the introduction of Section 31(A) of the Act, since, it has specifically been mentioned that in the event of a decree passed by a Civil Court, the decree-holder may apply to the DRT for realising the decretal dues. But even before the enactment of Section 31 (A), it appears to me that the view taken by the learned Presiding Officer is misconceived. Toquote his observation “this cannot be equated with the transfer of a pending suit under Section 31 of the Act and also it is not a case of transferred decree”. It is true that after the passing of the decree by the Civil Court, there was no pending proceduring before the said Court which might have been transferred. But at the same time to take a rigid view for the reason of shortcomings on the part of the Legislature to make the position clear in the Statute, an intending applicant decree-holder cannot be penalised by way of charging fees for the second time for realisation of the self-same amount. It may further be pointed out that as per the memo of appeal in Appeal No. 169 of 1997, the Appellate Tribunal in Mumbai (which was the only Tribunal of its kind for the whole of India), took the view that in the matter of starting an execution case before the Tribunal on the basis of a decree obtained from a Civil Court, there should not be any 2nd payment of fees,
8. Obviously, such being the legal position the Tribunal below was bound to act on it. In the result, the appeal succeeds. Hence it is :
ORDERED
9. That the appeal be allowed on contest and the impugned order stands set aside. The Tribunal below is directed to register the application filed under Section 19 of the Act by the present appellant before it and thereafter to proceed in accordance with law. Let a copy of the order along with lower Court record be sent back to the Tribunal below expeditiously.