ORDER
1. Heard learned Counsel for the petitioner.
Despite service of notice by paper publication, no one appears for the opposite parties at the time of call.
This writ petition has been filed by the State Bank of India challenging, inter alia, the orders dated 28.12.2005 and 30.6.2006 passed by the Registrar, DRT and the Presiding Officer, DRT under Annexures 2 and 5 respectively. The said orders were passed on a petition filed by the petitioner in execution of a decree.
2. The facts of the case are that the petitioner filed TMS No. 442 of 2000 against M/s. Glass Decorate and others for recovery of Rs. 8,05,4507-and ultimately in that suit a decree was passed by the learned Ad hoc Additional District & Sessions Judge (FTC No. Ill), Bhubaneswar for an amount of Rs. 10,88,070/- with interest at the rate of 6% per annum from 28.2.2005 till its realization.
By the time the decree was passed, the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 (hereinafter referred to as the 'said Act') has been amended and it is provided under Section 31A of the said Act that such decree has to be executed by the Debts Recovery Tribunal (in short, 'DRT')
3. The Hon'ble Supreme Court in the case of Punjab National Bank, Dasuya v. Chajju Ram and Ors. reported in AIR 2000 SC 2671 has also held that such decree is to be executed by the DRT and not by the Civil Court.
4. Accordingly, the petitioner sought for execution of the decree before the DRT. By the impugned order at Annexure-2 the Registrar of DRT did not register the application due to non-payment of application fees as per Section 19 of the said Act read with Rule 7 of the Debts Recovery Tribunal (Procedure) Rules, 1993 (in short, the 'said Rules'. Against the said order the petitioner filed an appeal before the Presiding Officer, DRT. The aforesaid order of the Registrar was confirmed by the Presiding Officer, DRT by order dated 30.6.2006 holding, inter alia, that as per Rule 9 of DRT (Procedure) Rules, 1993, an application under Section 19 or Section 31A shall be accompanied by the crossed demand draft or crossed Indian Postal Order representing the application fee. The said Rule came into force with effect from 21.1.2003, and therefore, the application filed under Section 31A after 21.1.2003 should be accompanied by the aforesaid fee. On the same reasoning the order of the Registrar was confirmed.
5. After reading the said judgment, we find that unfortunately the error which has been crept in the order of the Presiding Officer is that he has equated the application under Section 19 with the application under Section 31A of the said Act. Obviously an application under Section 19 has to be filed before the Tribunal in execution of the decree to recover any debt from any person and such application has to be accompanied by the fee as provided under Sub-section (3) of Section 19. But in the second proviso to Sub-section (3) of Section 19, it is provided as follows:
Provided further that nothing contained in this Sub-section relating to fee shall apply to cases transferred to the Tribunal under Sub-section (1) of Section 31.
It is clear from the aforesaid second proviso that the stipulation about payment of application fee under Section 19(3) of the said Act does not apply to the cases where the case is transferred to the Tribunal.
It is essentially because of transfer, the instant case is a case of transfer of decree, which was passed by the Civil Court but since the decree exceeded the requisite value it cannot be executed by the Civil Court. If we look at Section 31 such a proceeding is also covered under the description 'other proceeding'. Apart from that from a perusal of Section 31A of the said Act, we find that same is an empowering provision enabling the decree holder to apply before the Tribunal to pass an order for recovery of the amount, and it has been provided in Section 31-A(2) that on receipt of application under Sub-section (1), the Tribunal may issue a certificate for recovery to the Recovery Officer. On receipt of such certificate under Sub-section (2), the Recovery Officer shall proceed to recover the amount as if it was a certificate in respect of a debt recoverable under the Act. There is no requirement of payment of fee under Section 31A nor is it so required under Section 31. It has been made clear under the second proviso to Section 19(3) that where it is a proceeding for execution of a decree, the fee is not to be paid as contemplated under Section 19(3). Rule 7 of the relevant Rules, namely, DRT (Procedure) Rules, 1993, also does not prescribe any fee in respect of an application either under Section 31 or under Section 31A. Therefore, the application fee which is referred to in Section 19(3) may not mean the fee prescribed in Section 19(3) of the Act, which is the fee payable under Rule 7 of the Rules. Here the fee payable on the application is Rs. 2507-. An amount of Rs. 2507- is required to be paid in all interlocutory applications which the petitioner has paid.
6. We are, therefore, unable to uphold the order passed by the Presiding Officer, DRT. We direct that in the facts and circumstances the Registrar must register the application which is filed for recovery of the decretal dues and thereafter proceed in the matter in accordance with law.
The writ petition is allowed and the impugned orders under Annexures 2 and 5 are quashed. There shall be no order as to costs.
Urgent certified copy of the order be granted on proper application.