ORISSA HIGH COURT, CUTTACK.
W.P.(C) No.21194 of 2011 Arising out of the order dated 05.05.2011 passed by the Recovery Officer, D.R.T., Cuttack in R.P.Case No.018 of 2008.
----------------- M/S.Visakha Enterprises and two others … Petitioners … Opposite Party Versus Central Bank of India For Petitioners : For Opp.
Party : M/S.Gautam Mukherji, P.Mukherji, A.C.Panda, S.Patra, S.S.Mishra, S.D.Ray and S.Das.
Mr.Tuna Sahu.
M/S.Firoj Ahmmed and C.N.Mohanty.
------------------ PRESENT: THE HONOURABLE Mr.JUSTICE L.
MOHAPATRA AND THE HONOURABLE Mr.JUSTICE C.R.DASH ------------------------------------------------------------------------------------------------------------------------- Date of Hearing :
25. 09.2012 Date of Judgment :
11. 10.2012 ------------------------------------------------------------------------------------------------------------------------- C.R.Dash, J.
Order dated 05.05.2011 passed by the Recovery Officer, Debt Recovery Tribunal, Cuttack on the petition dated 13.07.2009 filed by the present petitioners to stay the Recovery Proceeding, which was rejected by the aforesaid impugned order, is the subject matter of this writ petition.”
2. The petitioners had availed credit facility of Rs.8,00,000/- (rupees eight lakh) on 10.04.2003 from the opposite party – Bank on primary security of hypothecation of stocks, surrender of L.I.C.Policy, Fixed Deposit and collateral security of land and building, etc.standing in their name.
The 2 petitioners having defaulted in repayment, appropriate proceeding before the Debt Recovery Tribunal, Cuttack was taken up by the opposite party – Bank and certificate for Rs.12,76,890.64p.
(twelve lakhs seventy-six thousand eight hundred ninety and paise sixty-four only) with 12% interest thereon from the date of filing of the suit till recovery of the amount was granted by decree dated 06.08.2007.
The Certificate Debtor / Petitioner filed a petition on 13.07.2009 before the Recovery Officer averring that the Certificate Holder – Bank had insured the assets / units of the Certificate Debtor – Petitioner by paying Insurance Premium on debit of the same to the loan account to the Certificate Debtor / Petitioner; unfortunately the unit was burnt due to accident with fire, but the Certificate Debtor / petitioner did not take any step to obtain the claim from the concerned Insurance Company; however, after the Certificate Debtor approached the District Consumer Commission, the District Consumer Commission awarded Rs.9.5 lakhs (nine lakhs fifty thousand) and said amount was enhanced to Rs.12.5 lakhs (twelve lakhs fifty thousand) by the State Consumer Commission; as per direction of the learned State Consumer Commission, the Insurance Company also deposited Rs.3,00,000/(three lakhs).which has been adjusted towards the loan account of the Certificate Debtor – petitioner.
not the Revision filed both by the Insurance Company and the Certificate Debtor – petitioner is pending before the National Consumer Commission, who, in turn has directed the Insurance Company to deposit Rs.7,00,000/- (seven lakhs) before the State Consumer Commission; that order has been complied by the said Insurance Company and Rs.7,00,000/- (seven lakhs) has been deposited with the State Consumer Commission. As the matter is subjudice before the National Consumer Commission and the Certificate Debtor – petitioners are yet to get their claim, they prayed for stay of the Recovery Proceeding till disposal of the Revision petition pending before the National Consumer Commission. The said petition was rejected by the Recovery Officer on the ground that the Certificate having already been issued by the Debt Recovery Tribunal and there being no proposal pending with the Bank for one-time settlement of the account, he is to proceed in the matter in accordance with law for attachment of the collateral security, i.e.land and building standing in the name of the petitioneRs.4. The opposite party – Bank has taken a stand that even after adjustment of Rs.4,48,850/- (four lakhs forty-eight thousand eight hundred and fifty) deposited by the Certificate Debtor – petitioneRs.the Bank’s dues come to Rs.15,89,000/- (fifteen lakhs eighty-nine thousand).which cannot be met even by the claim amount of Rs.7,00,000/- (seven lakhs).if allowed to be deposited in the loan account. It is further submitted that as the value of the secured assets is about Rs.20,00,000/- (twenty lakhs).the Bank has its privilege to proceed in the matter. Lastly, it is contended that alternative remedy of appeal in Section 30 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (“RDB Act”. for short) being available to the petitioneRs.the writ petition should be dismissed.” 5. Having heard learned counsels for the parties at length and having given our anxious consideration to the materials placed before us, we find that many disputed question of facts like the quantum of amount due to the Bank, allegation of realization of the amount by the Bank from the Deposit Insurance Guarantee Credit Corporation under the Deposit Insurance 4 Guarantee Credit Corporation Act, 1961, etc.are involved in the case. Such questions cannot be gone into in a writ petition. It is further found from record that on three earlier occasions, the petitioners had approached this Court, i.e.in W.P.(C) No.2656 of 2006, W.P.(C) No.2457 of 2007 and W.P.(C) No.9521 of 2007. From the materials on record, it is also found that the petitioners had substantially participated in the proceeding before the Debt Recovery Tribunal and order and decree passed by the D.R.T.has obtained finality in the meantime not being challenged in the appeal. In view of such fact and circumstances, the petitioneRs.if so advised, may file appeal under Section 30 of the RDB Act and if there has been delay in filing the appeal and a petition for condonation of delay is filed, such petition for condonation of delay may be considered favourably. The writ petition is accordingly disposed of. ………………………. C.R.Dash, J.L.Mohapatra, J. I agree. Orissa High Court, Cuttack. The 11th day of October, 2012. / S.K.Parida. ……………………….L.Mohapatra, J.