ORDER
K.S. Kumaran, J. (Chairperson)
1. Heard arguments of both the sides, and perused the records.
The appeal has been presented against the order dated 5.10.2001 passed by the learned Presiding Officer of the Debts Recovery Tribunal, Jaipur (hereinafter referred to as ‘the DRT’) dismissing the application filed by the appellant-Bank for the issuance of a Recovery Certificate in pursuance of the judgment and decree passed by the Additional District Judge-2, Kota on 13.9.89 in Suit No. 23/87. The learned Presiding Officer, by his impugned order dated 5.10.2001, dismissed the application on the ground that it has not been presented within the period of three years as per the provisions of Section 137 of the Limitation Act, 1963.
2. It is conceded by both the sides that the learned Presiding Officer of the DRT had considered only the question of limitation, and dismissed the said application without going into the merits of the contentions raised by either side. The learned Counsel for the respondents 2 and 3 states that apart from the question of limitation, respondents 2 and 3 had raised some other contentions also, and they have not been considered.
3. Though the learned Counsel for the respondents 2 and 3 wanted to urge that this application filed before the DRT is a fresh O.A., and is not an application under Section 31A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as ‘the Act’), the prayer pointed out by me earlier itself shows that the appellant-Bank had prayed for issuance of the Recovery Certificate in pursuance of the decree passed by the Civil Court. Therefore, though the appellant-Bank had not mentioned that this application was being filed under Section 31A of the Act for the simple reason that Section 31A of the Act had not been introduced by that time. It is apparent that in effect the prayer was one as contemplated under Section 31A of the Act. Now, Section 31A has been introduced in the Act specifically providing for issuance of Recovery Certificate by the DRT even with regard to the decrees passed by the Civil Court, which had not been executed.
4. Though a contention was raised by the learned Counsel for the appellant that in this matter the appellant-Bank had already commenced the execution proceedings, it is also the case of the appellant herein that, that fact cannot in any way stand in the way of the appellant seeking the issuance of the Recovery Certificate. Because, the words “has not been executed” found in Section 31A of the Act have to be interpreted to mean that the decree has not been executed in full and the amount thereunder has not been realised. It is not the case of the respondents 2 and 3 that any amount was realised. The learned Counsel for the appellant states that an execution petition was filed before the Civil Court for the attachment sale of the movables, but, the said application was transferred to the DRT where no amount was realised at all. According to him, even this execution petition, which was transferred to the DRT, was tagged on to the application filed for the issuance of the Recovery Certificate.
5. In these circumstances, I am of the view that it cannot be stated that the execution proceedings have started, and, therefore, the application for the issuance of the Recovery Certificate on the basis of the decree passed by the Civil court cannot be granted.
6. However, as pointed out already, the learned Presiding Officer of the DRT dismissed the application filed by the appellant-Bank only on the ground of limitation. The learned Counsel for the appellant rightly contends that the decree having been passed by the Civil Court on 13.9.89, and this application having been filed before the DRT on 16.12.99 it is within a period of 12 years from the date of passing of the decree by the Civil Court. He contends that under Article 136 of the Limitation Act, 1963 the appellant-Bank has a period of 12 years for executing the decree, and not merely three years as has been held by the learned Presiding Officer of the DRT. He contends that Article 137 of the Limitation Act would apply only to a case where no specific provision in the Limitation Act with regard to the period of limitation has been provided, and will have no application to a case of this sort, according to him Article 136 specifically provides for a period of 12 years for the execution of a decree from the Civil court.
7. The learned Counsel for the appellant also relies upon the order of this Tribunal in Union Bank of India v. Jenus Pharmaceutical India and Ors., III (2003) BC 35 (DRAT/ DRT) in support of his contention. The decision relied upon by the learned Counsel for the appellant supports the contention of the appellant herein. Therefore, in my view, the learned Presiding Officer of the DRT was not right in holding that the application is barred by limitation. The application cannot be treated as a fresh O.A. also in view of what I have pointed out above.
8. However, as the learned Presiding Officer of the DRT has not considered the merits of the application as well as the merits of the defence put forward by the respondents 2 and 3 herein, the matter will have to be remanded back to the DRT concerned for further consideration and fresh disposal with regard to the respective pleas and contentions of the parties.
9. Accordingly, the appeal is allowed setting aside the impugned order dated 5.10.2001 passed by the learned Presiding Officer of the DRT. The matter is remanded back to the DRT for further consideration and fresh disposal in accordance with law and in the light of the observations contained in this order.
10. The learned Presiding Officer of the DRT shall take the matter back to his file, give opportunity to both sides to put forth their case, give opportunity of hearing to both sides, and then dispose of the matter in accordance with law and in the light of the observations contained in this order.
11. For this purpose, the parties, through their Counsel, are directed to appear before the DRT concerned on 1.9.2004, and take further directions from the DRT in this matter.
12. Since, the other respondents have remained ex parte in the Appeal, the learned Presiding Officer shall consider issuing notice to them and pass appropriate orders before proceedings further with the matter.
13. Copy of this order be furnished to both sides, and be also forwarded to the concerned DRT.