ORDER
A.K. Srivastava, J. (Chairman)
1. This appeal has been filed against order dated 7.8.2000 in O.A. No. 712/95–The Benaras State Bank Ltd. v. M/s. Appu Amusement Machines Pvt. Ltd. and Ors.
2. By the impugned composite order the learned Presiding Officer of the Tribunal below has allowed three interim applications of the respondent Bank, the first filed on 22.7.1996 for bringing on record the legal representatives of deceased defendant No. 3 in the O.A., the second filed on 16.4.1998 for setting aside the abatement and the third filed on 21.8.1998 under Section 5 of the Limitation Act.
3. The undisputed facts of the case relating to the aforesaid applications are that defendant No. 3, namely, Group Capt. V.C. Mankotia died during pendency of the case; that by the time of his death notices on the defendant had not been served that notices were directed to be served through publication in newspaper and the next date fixed before the Tribunal below was 15.3.1996; that on that date i.e. 15.3.1996, the Counsel appearing for the applicant Bank submitted before the Tribunal below that defendant No. 3 and expired and he would take steps to bring legal representatives on record; that the applicant Bank on 22.7.1996 moved on application for substitution of legal representatives of deceased defendant No. 3 Group Capt. V.C. Mankotia; that thereafter on 16.4.1998 the applicant Bank moved on application under Order XXII Rule 4 and Order XXII Rule 9 of the Code of Civil procedure and that on 21.8.1998 the applicant Bank moved an application under Section 5 of the Limitation Act for condonation of delay in moving applications of 22.7.1996 and 16.4.1998.
4. From the order-sheets of the Tribunal below, it transpires that after the applicant Bank moved application on 22.7.1996 for bringing on record the legal representatives of defendant No. 3, it absented in the Tribunal on 29.10.1996 and thereafter on 6.1.1997 and consequently the claim application/suit was dismissed in default. Thereafter, on application of the applicant Bank, the suit was restored vide order dated 13.5.1997. The first application of the applicant Bank dated 22.7.1996 was vehemently opposed by the legal heirs of deceased defendant No. 3 on grounds, inter alia, that in terms of Article 120 of the Limitation Act, the application was barred by time as it ought to have been moved within 90 days from the date of death of the defendant No. 3 and that the suit against defendant No. 3 had abated as legal representatives were not brought on record within the lime provided in the Limitation Act. It appears that in order to meet the legal objections raised by the legal representatives of the deceased defendant No. 3 the applicant Bank moved the second application dated 16.4.1998 under Order 22 Rules 4 and 9 and Section 151 of the Code of Civil Procedure read with Section 5 of the Limitation Act. It was stated that till 15.3.1996 the applicant Bank was ignorant of the death of defendant No. 3 and that only on 15.3.1996 it came to know about the death and that efforts were made to know about the legal representatives of deceased defendant No. 3 and
only on 22.7.1996 the applicant Bank came to know about the legal representatives whom it wanted to implead as legal representatives of deceased defendant No. 3. In the application it was prayed that the abatement of the suit against deceased defendant No. 3 be set aside after condoning the legal representatives be substituted for deceased defendant No. 3 and be made party to the array of the defendants. The legal representatives of deceased defendant No. 3 opposed that second application also on grounds taken in that application, it appears that the applicant Bank in order to obviate any legal objections moved a separate application under Section 5 of the Limitation Act on 21.8,1998.
5. All these three applications have been allowed under the impugned order and the objections raised by the legal representatives of deceased defendant No. 3 to these three applications were rejected. The learned Presiding Officer of the Tribunal below directed to substitute the appellants as legal representatives of defendant No. 3 in the array of defendants in place of defendant No. 3.
6. On going through the impugned order it is to be found that extensive arguments were made from both the sides in favour of the prayers made in the applications and in opposition to the same. The applicant Bank relied on citations AIR 1997 Calcutta 359, United Bank of India v. Golam Hossain Holder and Ors.; AIR 1983 SC 355, Bhagwan Swaroop v. Moolchand and AIR 1983 SC 186, Bapurao v. Smt. Jamunabai and Ors. On the other hand, the legal representatives of deceased defendant No. 3 relied on citations AIR 1964 SC 215, Union Bank of India v. Ramcharan (deceased) through LRs; AIR 1977 SC 627, Govind Rao and Anr. v. Mahadev; AIR 1981 SC 1921, State of Gujarat v. Sayed Mohd. Baquir EI Edrass; AIR 1970 Delhi 49, Kartar Chand and Ors. v. Jawal Singh and 50 (1993) DLT 419, Thakur Bir Randhir Singh v. Thakur Kartar Singh (Deceased) through LRs.
7. On reading of the impugned order and the arguments advanced by Counsels of respective parties, to me it appears that al! the three learned Counsels for the parties as well as the learned Presiding Officer were under the impression that by operation of Order XXII Rule 4(3), the suit of the applicant Bank had abated against defendant No. 3 and, therefore, the suit could only proceed against the assets of deceased defendant No. 3 through his legal representatives after the abatement of suit against defendant No. 3 had been set aside. It also appears that they were under the impression that since application for setting aside abatement had not been moved within the time prescribed, the application under Section 5 for condonation of delay was a must and if sufficient cause was shown, only then the application for setting aside the abatement could be taken up for consideration and if sufficient cause was shown in the application for setting aside the abatement, only then the abatement could be set aside and legal representatives of deceased defendant No. 3 could be brought on record. Learned Presiding Officer of the Tribunal below proceeded with these applications accordingly and after finding sufficient cause in the matter, allowed all the three applications. Condonation of delay was allowed, abatement was set aside and the appellants were substituted as legal representatives of deceased defendant No. 3.
8. During the course of arguments in this appeal a query was raised by me to the Counsels for the parties as to how the suit of the applicant Bank abated against deceased defendant No. 3 when the Code of Civil Procedure did not apply to the proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter called “the Act”) pending before Debts Recovery Tribunal established under the Act and there is no provision in the Act relating to abatement. Arguments were advanced for and against this query.
9. I will, therefore, now, proceed to examine whether on the death of defendant No. 3 if an application for bringing on record the legal representatives of defendant was not made within the time allegedly limited by law, the claim application of the respondent Bank against deceased defendant did abate? In my view, in a proceeding before a Debts Recovery Tribunal established under the Act there is no provision for abatement of suit against the deceased defendant. Section 22 of the Act says that the Tribunal and the appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of the Act and of any rules, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure including the place at which they shall have their sittings. In Sub-section (2) of that section the Debts Recovery Tribunal has been given the same powers as are vested in Civil Court under Codeof Civil Procedure, 1908, while trying a suit, in respect of following matters, namely :
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses of documents;
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it ex parte\
(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(h) any other matter which may be prescribed.
10. On perusal of rules framed under the Act, it is to be found that powers have not been given to the Debts Recovery Tribunal as are in the provisions of Order XXII of the Code of Civil Procedure relating to abatement of the suit, bringing on record the legal representatives of the parties, etc.
11. Therefore, when the provisions contained in Order XXII of the Code of Civil Procedure are not applicable to the proceedings before Debts Recovery Tribunal established under the Act, it is not conceivable that the provisions relating to abatement under the said order shall apply to a case pending before Debts Recovery Tribunal. It is a different matter that while regulating its own procedure under the provisions of Section 22(1) of the Act a Debts Recovery Tribunal may follow aprocedure analogous to the one contained in the Code of Civil Procedure but it would not be permissible under law for a Debts Recovery Tribunal to import the provision of Order XXII Rule 4(3) and to say that the claim proceedings before it abated against any deceased defendant on the grounds that the claimant Bank had not made an application for substitution of legal representatives within the time limited by law. There is a distinction between ‘enabling’ and ‘disabling’ provisions. For bringing legal representatives on record in place of a deceased defendant, the Debts Recovery Tribunal may follow the same procedure as is laid down in Order XXII of Code of Civil Procedure and may require the claimant Bank to follow the same but in my considered view the Debts Recovery Tribunal cannot tell the applicant Bank that his claim application against a deceased defendant abated for not bringing on record his legal representatives within the timelimit by law. The
Limitation Act, 1963 provides period of limitation for filing suits and moving applications. Article 120 of the Limitation Act may be reproduced as follows :
“Discription of application
Period of limitation
Time from which period begins to run
Under the Code of Civil Procedure, 1908 (5 of 1908) to have the
legal representative of a deceased plaintiff or appellant or of a deceased defendant
or respondent, made a party.
Ninety days
The date of the plaintiff, appellant, defendant or respondent as
the case may be.”
12. The aforesaid Article relates to those applications which are moved under the Code of Civil Procedure, 1908 and, therefore, in my considered view, this Article will not be applicable in relation to the applications of the like purpose moved before a Debts Recovery Tribunal established under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Likewise, Article 121 of the Limitation Act applies only in that eventuality where abatement has taken place and an application has to be moved under Code of Civil Procedure for setting aside the abatement of the suit.
13. The whole concept of abatement and setting aside of abatement flows from the provisions of the Code of Civil Procedure, 1908 and in my view it has no relevance to the proceedings before a Debts Recovery Tribunal which is not bound by the provisions of the Code of Civil Procedure, 1908. Much reliance was made by the learned Counsel for the appellants on a ruling of the Calcutta High Court reported in AIR 1997 Calcutta 359, United Bank of India v. Golam Hossain Halder and Ors. to impress me that the provisions of Order XXII of the Code of Civil Procedure would be strictly be applicable to the proceedings before Debts Recovery Tribunal and, therefore, in view of the provisions of Order 22 Rule 4(3) the suit against deceased defendant 3 had abated and since applications for setting aside abatement had not been moved within the time limited by law, i.e. the Limitation Act, abatement of the suit against deceased defendant No. 3 could not be set aside as the application for that was barred by time.
14. In the aforesaid cited case the Hon’ble Judge observed as follows :
“The time forecast by Civil Procedure Code, for making substitution is much shorter than that of the Limitation Act. Therefore, the pari materia shall fit in better with the object of the Act as enunciated in the Recovery of Debts Due to Bank and Financial Institution Act, 1993. Therefore, henceforward the Debts Recovery Tribunal is required to deal with questions which result as off-shoot from death, marriage and insolvency of a party before it. It should adhere to particular provision of Order 22 of the Civil Procedure Code. It is made clear that it is not on warrant for which the Debts Recovery Tribunal shall get any encouragement that entire Civil Procedure Code is to be applied for as a whole. It is only for the limited purpose for taking care of the eventualities like death, insolvency and marriage only. The particular provision of Order 22 should be restored and Order 22 also includes within its fold the other residuary eventualities like assignment or anything else which is covered by Order 22. This Court makes it clear that non-application of the Code of Civil Procedure does not
operate as a bar to apply Order 22 of the Code of Civil Procedure so that the mischief of free play of the whims of the vagaries of the person do not come into play and that may not take as a substitute of practical implementation of the principles of natural justice. In this context, a reference may be made to the case of A A. Haja Muniuddin v. Indian Railways reported in (1992) 4 SCC 736 : (AIR 1993 SC 361) where Supreme Court has held on construction of Section 18(1) of the Railway Claims Tribunal Act, 1987 that the Claims Tribunal shall not be bound by the procedure of the Civil Procedure Code but does not go so far as to say that it ‘shall be precluded’ from invoking the provision of the Code even if the same is not inconsistent with the Act and the rules. A view which advances the cause of justice must be preferred to the one which defeats it. This Court reserves this thought for elucidation in details about the pith and substance of the principles of natural justice being historically derived from the concept of just nature but this Court does not intend to go in detail of the same on this issue but it only makes a restricted application of Order 22 so that the exercise may be governed by particular procedural modalities. Therefore, the Debts Recovery Tribunal is directed to reconsider the matter afresh in terms of the directions contained here. The subsequent order passed, namely, whereby it appears that an adverse inference has been drawn about the conduct of the Bank there is no basis for deriving such adverse inference of the conduct of the Bank where nobody knows as to how to tackle such impending possibility. This Court is made to determine on numerous occasions its firm conviction that justice finds its noblest fulfilment when it is tampered with consideration and not inferred with vindictiveness. If a party litigant is not sure as to what it should do then aspersion should not have been made personally about the conduct of the party without making the same similar with the procedure which it should follow.”
15. After making the aforesaid observations, the following order was passed namely :
“Accordingly, the orders impugned are set aside. The revisional application succeeds and the Debts Recovery Tribunal is directed to re-hear the matter and to bring the heirs on record and no order of abatement can be passed in this proceeding.”
16. It may here be pointed out that the concerned Debts Recovery Tribunal, Calcutta had passed order that the suit against the deceased defendant had already abtated.
17. Thus from the above, this ruling, in fact, is against the contention of the learned Counsel for the appellants that the legal concept of abatement is applicable to the proceedings before the Debts Recovery Tribunal.
18. The legal concept of abatement is in nature a killing provision which takes effect on some deficiency on the part of the plaintiff for not taking steps in time. In my view such a provision embodied in Order XXII Rule 4(3) would only be applicable to those proceedings where the Civil Procedure Code is applicable because the procedure established by law would be operating in such proceedings. When the provisions of Code of Civil Procedure are not applicable to the proceedings before Debts Recovery Tribunal, the aforesaid killing provision contained in the Code of Civil Procedure if applied to the proceedings before the Debts Recovery Tribunal, would be highly prejudicial to the claimant Banks and Financial Institutions. On the other hand, if such killing provision is not applied, the legal representatives of deceased, if impleaded, would not be prejudiced because if ultimately a decree is passed by the Tribunal, the legal representatives arc not going to be personally affected us the decree would proceed only against the assets of the deceased defendant in the hands of
the legal representatives. Therefore, in my view, as per the existing law the concept of abatement is not applicable in the proceedings before the Debts Recovery Tribunal and if an application is moved by the claimant Bank or financial institution for bringing on record the legal representatives of a deceased defendant, the applicant Bank or Financial Institution cannot be told that the claim application against the deceased defendant has already abated as no application for substitution of legal representative was moved within ninety days from the date of death.
19. Bringing legal representatives of the deceased defendants is a must because unless it is done, the decree, if any, passed on a claim application of a Bank or Financial Institution cannot beexecuted against the unrepresented assets of the deceased defendants. Now, in view of the provisions of the Act, I may examine the modalities by which the Banks or Financial Institutions may bring legal representatives of a deceased defendant on record. Since the provisions of the Act and rules made thereunder are silent on the subject, the Presiding Officer of the Debts Recovery Tribunals will have to adopt a procedure which may not be prejudicial to either of the parties. In my opinion, as soon as it comes to the notice of the applicant Banks/ Financial Institutions that a defendant has died it should take to substitute the deceased defendant by bringing on record his legal representatives within areasonable time. Likewise, when the factum of death comes to the knowledge of the learned Presiding Officer of the Debts Recovery Tribunal, he should not proceed with the case on merits and should ask the applicant Bank/Financial Institution to move application for substituting legal representatives of the deceased defendant within areasonable time. For sufficient grounds the applicant Bank/Financial Institution may request for enlargement of such time if after enlargement of such time the applicant Bank/Financial Institution still fails to move an application for substitution of legal representatives of the deceased defendant, the Presiding Officer of a Debts Recovery Tribunal may order for deletion of the name of the deceased defendant from the array of parties and consequently no decree can be passed against the assets left by the deceased defendant.
20. Now, in view of the above discussion, the only point which remains to be considered in this appeal is whether the respondent Bank moved the application for substitution of legal heirs of defendant No. 3 within a reasonable time or not. On facts, I find that on 15.3.1996, learned Counsel for the respondent Bank informed the concerned Debts Recovery Tribunal that defendant No. 3 had died and steps would be taken to bring the legal representatives. It is also a fact on record that on 22.7,1996 the respondent Bank moved an application for bringing on record the legal representatives of defendant No. 3. From the order sheets of the proceedings in the concerned O.A. before the Debts Recovery Tribunal I do not find that any limited time was given by the Tribunal to the respondent Bank to move an application for substitution of deceased defendant No. 7 by legal representatives. In the absence of any such time-limit if the respondent Bank moved an application on 22.7.1996 for the purpose and the learned Presiding Officer of the Tribunal below has come to the conclusion that there was no mala fide on the part of the respondent Bank and the delay in filing application could be condoned, I see no reason to interfere with the opinion so formed by the learned Presiding Officer of the Tribunal below.
In view of above discussion, the appeal fails.
21. The appeal is accordingly dismissed. Costs on parties.