JUDGMENT
A.B. Mukherjee (Retd.), J. (Chairperson)
1. The appeal arises out of order dated 28.3.2000 passed by the learned Presiding Officer, Debts Recovery Tribunal, Patna, in Execution Case No. 55 of 1999.
2. The respondent State Bank filed a claim case against the appellant in a Civil Court and got a decree by way of compromise between the parties. Hereafter, it was transferred to the Debts Recovery Tribunal in view of the promulgation of Recovery of Debts Due to Banks and Financial Institutions Act. On receipt of the record, the learned Presiding Officer issued a certificate. Being aggrieved, this appeal has been preferred alleging that no opportunity was given to the appellant to contest the issuance of certificates. It is alleged that the Bank induced the appellant to enter into a compromise by granting “no objection” certificate, that subsequently, it appeared to the appellant that such “no objection” certificate was not in
accordance with law. It is also alleged that the compromise decree was a preliminary one and there was no final decree passed by Court.
3. The appeal is being contested by the respondent Bank alleging that there was no inducement on the part of the Bank, that the appellant did not obey the terms of the compromise, that the order passed by the learned Presiding Officer, DRT is in accordance with law since the Executing Court cannot go behind the decree.
4. The point for determination is, whether the impugned order cart sustain ?
5. It is argued on behalf of the appellant that the compromise decree was found to be not in accordance with law. Since, the appellant after approaching other Bank for getting loan on the basis of “no objection” certificate was refused to grant any loan. This fraud was discovered after a long time and they filed application under Order XXIII Rule 3. CPC but the Registrar of the DR Tcven though he had no jurisdiction passed certain orders which were not in accordance with law. Subsequently, the Presiding Officer also issued a certificate without giving any chance to the appellants to contest issuance of certificate. He also relied on number of decisions in support of his contention. It is submitted on the basis of a decision reported in (1994) 1 ACC page 1, that in the event of a decree obtained by fraud the same can be challenged even in collateral proceeding. Reliance has been placed on another decision reported in AIR 1993 SC 1139, which laid down that a party challenging a compromise can file a petition under proviso to Order 23 Rule 3, CPC. It is stated that if the agreement or compromise is itself fraudulent it shall be deemed to be void within the meaning of Rule 3. The decision reported in AIR 1975 SC 2130, speaks of the duty of the Court while dealing with compromise petition. The decision reported in JT 1996 (7) SC 135, deals with effect of judgment obtained by fraud. The decision reported in 1996 (3) ACC 310, deals with a case when fraud is practised on the Court.
6. The learned Advocate representing the respondent Bank submitted that joint petition of compromise signed by both the parties were filed in the Court on the basis of which a decree was passed on 14th December, 1995. He has denied that there was any inducement on the part of the Bank at any stage before filing the compromise decree. He has also relied on a decision reported in AIR 1989 Rajasthan 43, in support of his contention mat the only remedy of a person who wishes to challenge a compromise decree on the ground of fraud is to file a suit for setting aside this decree and such objection cannot be entertained during the course of execution. I have given my careful consideration to the submission of learned Advocates of both the sides. Admittedly, there was a suit by the Bank against the present appellant when the parties entered into a compromise and filed a joint petition of compromise which was given effect to and a decree was passed. One of the terms of compromise was that the respondent Bank would issue a “no objection” certificate. The Bank actually issued such a “no objection” certificate but the appellant did not comply with the other terms namely, payment of the agreed sum within a period of 90 days as agreed. In the meantime, the execution case was transferred to the Debts Recovery Tribunal and the learned Presiding Officer by order dated 28th March, 2000, directed issue of certificate.
7. Section 31(A) of the Recovery of Debts Due to Banks and Financial Institutions Act says that in the event of a decree or order passed by any Court before commencement of the Act, the decree-holder may apply to the Tribunal to pass an order for recovery of the amount. Sub-section (2) says that on receipt of the application the Tribunal may issue a certificate for recovery to the Recovery Officer. Sub-section (3) says on receipt of a certificate under Sub-
section (2) the Recovery Officer shall proceed to recover the amount as if it was a certificate in respect of a debt recoverable under this Act.
8. The only ground of attack on the part of the appellants is that they failed to get any loan from other Bank on the basis of the “no objection” certificate guaranteed by the respondent Bank. I do not find any material on record to show that there was any inducement on the part of the respondent Bank with a view to bring the appellant to a compromise. As a matter of fact, it was a compromise between the two parties and in the absence of any inducement it cannot be said that there was any fraud on the part of the respondent Bank. It is true that due to some directions issued by the Reserve Bank of India or for some other reasons the appellant did not get any loan from other Bank but in the absence of any evidence to show that there was a representation on the part of the respondent Bank to the appellant before granting “no objection” certificate that such a certificate would enable them to gel loan from other Banks, it can not be said that there was any fraud practised on the appellant.
9. It is true that the objection given by the appellant before the DRT under Section 19(3) of the Act was dealt with by the Presiding Officer subsequent to the passing of the order directing issue of certificate. Nevertheless, he has considered all the aspects including the implication of Rule 88(B) of Debts Recovery Tribunal Regulation of practised Rules 1996 and as such it cannot be said that the learned Presiding Officer acted beyond the scope of his jurisdiction.
10. There has been some submission on the part of the appellant against the conduct of the Registrar but this is not the Forum to deal with the same. The law requires that a person aggrieved by an order of the Registrar of the Tribunal may prefer appeal before the Presiding Officer of the said Tribunal which has not been done.
11. After giving my careful consideration to the submissions of learned Advocates and having regard to the provision of law namely, Section 31 (A) of the Act, I am of opinion that the learned Presiding Officer acted in accordance with law.
12. Since, the decree was passed by a Civil Court, it required issuance of a certificate under the Act, so that the Recovery Officer can proceed to recover the decretal dues. Therefore, the order regarding issuance of certificate on the basis of a decree previously obtained from a Civil Court which was not executed is a formal one namely, issuing certificate. As an Executing Court, the Presiding Officer cannot go behind the decree and accordingly the procedure followed by him in this case is perfectly in accordance with law. In the result, I do not find any infirmity in the impugned order. Hence, it is :
ORDERED
That the appeal be dismissed on contest but without any costs.