Arun Tandon, J.
1. Heard Sri A.K. Singh, learned Counsel for the petitioner, and Sri Tarun Verma, learned Counsel for the Allahabad Bank.
2. Original Application No. 60 of 2004 was initiated by the Allahabad Bank, a body Corporate and Banking Company constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, V of 1970, having its Head Office at 2, Netaji Subhas Road, Kolkata-700001 and a Branch amongst others at I.B.B. Branch Nadesar, district Varanasi, against the present petitioner under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Act, 1993) for recovery of total sum of Rs. 24,05,860 alongwith pendente lite and future interest at the rate of 20% per annum. In the aforesaid original application a compromise was arrived at between the present petitioner, Smt. Shashi Agrawal, who was guarantor of the loan advanced in favour of M/s. Alex Enterprises and Sri Kamta Prasad, whereunder, a sum of Rs. 15.50 lacs was to be paid to the Bank for the satisfaction of the entire outstanding dues with a further stipulation, which is borne out from the compromise dated 9th March, 2007 and reads as follows:
You will have to withdraw all the cases filed against the Bank and till such time neither no dues certificate will be issued nor documents will be handed over to you.
3. Petitioner is stated to have deposited the said amount of Rs. 15.50 lacs in terms of the compromise. However, all the cases instituted against the Bank were not withdrawn. Petitioner made an application before the Debt Recovery Tribunal at Allahabad stating therein that since the money, i.e., Rs. 15.50 lacs has been deposited in terms of the compromise, the original application filed by the Bank be dismissed.
4. Before the Tribunal, the Bank raised an objection that the terms of the compromise were acted upon to the full satisfaction of both the parties specifically Clause 7 of the agreement whereunder also the cases instituted against the Bank were to be withdrawn in their entirety. Therefore, it was submitted that the original application filed by the Bank be not dismissed.
5. The objection of the bank has been turned down by the Debt Recovery Tribunal only after recording that petitioner had made payment of Rs. 15.50 lacs in terms of the compromise and that Clause 7 of the agreement, which provided for the withdrawal of the cases instituted by the petitioner against the Bank was a void condition.
6. The Bank not being satisfied with the order so passed by the Debt Recovery Tribunal, preferred an appeal before the Debts Recovery Appellate Tribunal, Allahabad, which was registered as Appeal R-912 of 2008. The appeal filed by the Bank has been allowed under the order 2nd June, 2009 and it has been held that since the parties have not acted upon the terms of the compromise in its entirety, the same was inoperative in the eyes of law. Therefore, order dismissing the original application filed by the Bank has been held to be illegal. The case has been remanded for fresh decision on merits by the Debts Recovery Tribunal. The Appellate Tribunal has specifically recorded that the condition incorporated qua withdrawal of the proceedings initiated against the Bank was a valid condition, which had to be acted upon. It is against this order of the appellate Tribunal that the present writ petition has been filed.
7. On behalf of the petitioner, an attempt was made to challenge the order of the appellate Tribunal on the ground that in view of Sections 28, 57 and 59 of the Indian Contract Act, 1872, the condition insisted upon by the Bank qua withdrawal of the cases instituted against it, was illegal and therefore, enforceable in the eyes of law. It is further stated that all other cases except the one, pending before the Consumer Protection Forum and initiated by the principal loanee could not be withdrawn as petitioner has no control in that regard.
8. I have considered the submission made by the learned Counsel for the parties and have gone through the records of the present writ petition.
9. The contention raised on behalf of the petitioner does not appeal to the Court for following two reasons, (a) if the proceedings are initiated by a party against another and in such proceedings, a compromise is arrived at out of own sweet will for withdrawal of the proceedings against each other, then such compromise cannot be permitted to be hit by Sections 28, 57 and 59, inasmuch as no restrain is being placed upon institution of the proceedings, as suggested by the petitioner. Such an agreement is arrived at by the parties in order to settle the dispute outside the Court including the arrangement that they will not pursue the Court proceedings any further. Even otherwise, this Court may record that if the conditions incorporated in compromise requiring the petitioner to withdraw all the proceedings initiated against the petitioner is held to be hit by Section 28 of the Indian Contract Act then the compromise itself is rendered bad as a whole, inasmuch as the compromise was arrived at between the parties on the principle of 'give and take.' If it is found that the part of the beneficent to the Bank is bad, then the compromise arrived at by the Bank itself would be contrary to its interest and the compromise has to go as a whole. In such circumstances, the compromise has to go in its entirety and cannot be acted upon and by another.
10. Learned Counsel for the petitioner in support of his case, has placed reliance upon the judgments of the Hon'ble Supreme Court of India in the case of Shin Satellite Public Co. Ltd. v. Jain Studios Ltd. : (2006) 2 SCC 628 : 2006 (2) AWC 1259 (SC) and B.O.I. Finance Ltd. etc. v. Custodian and Ors. : AIR 1997 SC 1952, for alleging that bad part of the agreement can be separated from the good part.
11. I am of the opinion that in the facts of this case, the condition to withdraw all the proceedings initiated against the Bank was an integral part of the deal as a whole and cannot be segregated from the other part of the compromise, which was in favour of the petitioner.
12. In the totality of the circumstances as noticed above I find that there is no illegality or infirmity in the order passed by the appellate authority, so as to warrant any interference under Article 226 of the Constitution of India.
13. At this stage, learned Counsel for the petitioner submits that one of the issue raised before the Tribunal was that in respect of same loan account, an earlier agreement/compromise had been entered into between the parties, which has become final, wherein execution of the decree earlier obtained by the Bank was struck off under order dated 17th March, 2002. Therefore, it is stated that no purpose would be served by original application being reheard by the Debts Recovery Tribunal as principle of 'estoppel' would come into play.
14. It is not necessary for this Court to enter into the aforesaid issue at this stage of the proceedings, inasmuch all issues of facts and law are left open to be agitated before the Tribunal itself at the first instance, including the plea of estoppel.
15. The writ petition is dismissed subject to the observations made above.