Ashok Menon, Chairperson
1. The Appellant Bank of Baroda (previously Dena Bank) is in appeal aggrieved by the judgement and order dated 31.10.2007 in Transferred Application (T.A.) No. 1133/2001 on the files of the Debts Recovery Tribunal, Ahmedabad (D.R.T.) dismissing the counterclaim preferred by the Appellant.
2. The Original Application (O.A.) No. 380/2000 was initially filed before the D.R.T., Jaipur by the 1st Respondent Bank of Rajasthan Limited (presently the ICICI Bank Ltd.) for recovery of the amount due from defendants Nos. 1 to 8 and also amount from the Dena Bank, as it then was, as a member of the consortium of which the Bank of Rajasthan was also a member. D.R.T. Jaipur returned the application for presentation before the proper form for want of jurisdiction. The Bank of Rajasthan challenged the order by filing a Writ before the Jaipur Bench of the Rajasthan High Court. After that, the parties agreed to the transfer of the O.A. to the D.R.T. Ahmedabad, and accordingly, the application was re-filed and renumbered. The challenge raised by the 1st defendant at the interim stage before the D.R.T. was rejected and this Tribunal confirmed the said order as also by the Bombay High Court. The D.R.T. passed the impugned order allowing the application against defendants Nos. 1 to 8 and dismissed it against Dena Bank, the 9th defendant.
3. The Ld. Presiding Officer also rejected the Applicant's claim in the O.A. against the 9th defendant Dena Bank. However, the counterclaim preferred by the 9th defendant was also rejected for being filed belatedly. The Appellant is aggrieved and hence in appeal. The 1st Respondent Applicant in the O.A. did not challenge the dismissal of the O.A. as against the 9th defendant.
4. The Appellant is aggrieved with the dismissal of the counter-claim on the grounds of filing it belatedly. The DRT found that the counter-claim was not filed along with the written statement as required by the statute. It is observed in the impugned order that the counter-claim can be filed at any time before the Defendant has delivered his defence or before the time limit for delivering his defence has expired. In the instant case, the 9th defendant has filed two written statements which according to the Ld. Presiding Officer was not possible.
5. Section 19(5) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (‘RDDB & FI Act’, for short) as it stood before the amendment, read as follows:
“(5) The Defendant shall, at or before the first hearing or within such time as the Tribunal may permit, present a written statement of his defence.”
6. A reading of Sub-Section 5 indicates that the written statement shall be filed at or before the first hearing and liberty is also granted to the Tribunal to grant time to file the written statement.
7. Section 19(8) of the RDDB and FI Act which pertains to the filing of the counter-claim reads thus:
“(8) A Defendant in an application may, in addition to his right of pleading a set-off under sub-section (6), set-up, by way of counter-claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of this application but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not.”
8. Reading Sub-Section (8) would further clarify that the counter-claim has to be filed either before or after the filing of the application but before the defendant has delivered his defence. In this Sub-Section also, liberty is granted to the DRT to permit the filing of the counter-claim within the extended period granted by the Tribunal to file the written statement. The subsequent amendment to Section 19(5) has made it more rigid. The written statement has to be filed within thirty days and the Tribunal has the power to extend that time further by fifteen days more in exceptional cases, and in special circumstances to be recorded in writing.
9. The Defendant cannot, therefore, file a counter-claim at any time he pleases. It has to be filed along with the written statement or within such extended time granted by the Tribunal. In the instant case, the 9th defendant had filed a written statement on 31.07.2000 before the O.A. was transferred from DRT, Jaipur. Thereafter, without being permitted specifically by the Tribunal for reasons to be recorded, another written statement and counter-claim was filed on 08.02.2002 before DRT, Ahmedabad. There is no indication that the filing of the 2nd written statement with the counter-claim was permitted by the Tribunal.
10. The very purpose of the implementation of this special statute was to expedite the disposal of cases relating to the recovery of money due to banks and financial institutions. The Ld. Counsel appearing for the Appellant has fervently argued that a counter-claim could be filed even after the written statement was filed for no serious injustice or irreparable injury could be caused to the Applicant by receiving a counter-claim belatedly. The Ld. Counsel relies on the decision of the Hon’ble Supreme Court in Vijay Prakash Jarath V/s. Tej Prakash Jarath AIR 2016 SC 1304 to bolster his arguments.
11. The aforesaid decision may not apply to the facts of the present case because the decision pertains to receiving counter-claim belatedly under the provisions of Order VIII Rule 6 A of the Code of Civil Procedure. In the facts and circumstances of the reported decision, the Hon’ble Apex Court was pleased to grant leave to the defendant to file a counter-claim belatedly. Considering the purpose of implementation of this special statute with which we are concerned, the filing of a counter-claim cannot be entertained after the written statement has been filed. The subsequent amendments to the provisions would explicitly reveal the intent of the legislature.
12. It is also pertinent to note that in the impugned judgment, the Tribunal had also observed that the claim against the 9th Defendant is not sustainable for the reason that it is a dispute between two banks which requires to be referred to a High Power Committee. This plea was specifically taken by the Appellant before the Tribunal questioning the maintainability of the claim put forth by the Applicant in the O.A. The Appellant cannot, therefore, be permitted to approbate and reprobate at the same time when it comes to their counter-claim. If the claim of the Applicant as regards the 9th Defendant is not maintainable, it equally applies to the 9th Defendant's claim against the Applicant as well.
13. I, therefore, find no reason to upset the impugned judgment and order.
The Appeal is without any merits and is, therefore, dismissed.
