ORDER
Dibyendu Bhusan Dutta, J.
1. The present application under Article 227 of the Constitution is directed against two orders being Order No. 14
dated 26-12-97 and Order No. 15 dated 15-1-98 passed by the learned Debts Recovery Tribunal in case No. T.A. 60/96. The said case arose out of a suit which was filed in this High Court on its Original Side and which subsequently stood transferred to the Tribunal under the provisions of the Recovery of debts Due to Banks and Financial Institution Act, 1993. A consortium of Financial Institutions comprising the respondents Nos. 2 and 3 and another viz. Industrial Reconstruction Bank of India (IRBI) advanced a loan to the respondent No. 4 company and the petitioner No. 1 company (of which the petitioner No. 2 was an Executive Director and a shareholder) stood as guarantor in relation to the said loan transaction and the suit was filed by the respondent Nos. 2 and 3 for recovery of that loan.
2. According to the petitioners, a compromise relating to the petitioner No. 1’s liability as guarantor was arrived at between the petitioner No. 1 on the one hand and the consortium referred to above on the other, in terms of which the petitioner No. 1 would be required to make payment of Rupees 135 lacs and to place the plant and machineries belonging to the petitioner No. 1 and lying installed at the premises of the respondent No. 4 as security for repayment of the said amount agreed to be paid by the petitioner No. 1 in full and final settlement of the petitioner No. 1 ‘s liability as aguarantor and in the event of such payment being made, the petitioner No. 1’s liability, as guarantor would stand fully discharged and the suit would be withdrawn as against the petitioner No. 1.
3. It is the further case of the petitioners that the payment of the stipulated amount has already been made in terms of the settlement but despite such payment the suit was not withdrawn and is being proceeded with at the instance of the respondent Nos. 2 and 3 before the Tribunal. The petitioner No. 1 on being summoned by the Tribunal entered appearance before the Tribunal and approached the tribunal with a prayer for dismissing the suit as against the No. 1 petitioner on the ground that it was liable to be withdrawn against the petitioner No. 1 in terms of the settlement referred to above. The plaintiff/respondents opposed the prayer and contended before the Tribunal that mere payment of the stipulated amount did not constitute fulfilment of the
terms of the settlement nor did it make it obligatory for the plaintiffs to withdraw the suit. It was urged on behalf of the respondents before the Tribunal and the petitioner No. 1 did not fully comply with the terms of the settlement and as such, it was not entitled to withdrawal of the suit.
4. The Tribunal rejected the prayer of the petitioner No. 1 by one of its impugned orders viz. the order dated 26th December, 1997 and when the petitioner No. 1 prayed for time to file written statement before the Tribunal so as to enable the petitioner No. 1 to move before the High Court against the said order of rejection of its prayer for dismissal of the proceeding, the Tribunal by its subsequent impugned order dated 15-1-98 rejected that prayer and directed that the proceeding be proceeded with ex-parte.
5. Upon perusal of the impugned order dated 26-12-97, it becomes clear that the Tribunal has practically prejudged the issue on the question as to whether or not the terms of the settlement were fully complied with by the petitioner No. 1 even before it proceeded to decide the suit on merits. This issue should have been decided along with the other issues that would have arisen only after the written statement is filed and not as a preliminary issue, which clearly involved disputed questions of fact, only on the basis of the petitioner No. 1 application and the respondent’s written objection. The learned Tribunal, I must say, was also not justified in refusing to grant the petitioner No. 1 time to file written statement and in deciding to proceed to dispose of the proceeding ex-parte and in such view of the matter, I set aside both the impugned orders with a direction upon the Tribunal to permit the petitioner No. 1 to file written statement within 4 weeks from this date and decide the proceeding, in accordance with law, after framing all requisite issues including an issue relating to the maintainability of the proceeding. It is hereby recorded that this Court in setting aside the impugned order dated 26-12-97 has not gone into the merits of the matter as to whether or not the terms of the settlment were not fully complied with and that the matter is kept open to be agitated by the parties.
6. The revisional application is thus disposed of on contest without any order as to costs.
7. Let a copy of this order be communicated to the Tribunal forthwith.
8. Let urgent xerox certified copy of this order, if applied for be suplied to the applicant within 3 days subject of course to compliance with all the requisite formalities.