B.S. Chauhan, C.J.
1. This writ petition has been filed challenging the judgment and order of the Debt Recovery Appellate Tribunal (hereinafter called 'DRAT) dated 17-3-2008 passed in Appeal No. 8 of 2008 by which the learned appellate forum dismissed the appeal against the judgment and order of the Debt Recovery Tribunal, (hereinafter called 'DRT') Cuttack dated 26-12-2007.
2. The facts and circumstances giving rise to the case are that the petitioner No. 1 is the wife of one Kalyan Kumar Dutta who was originally Defendant No. 4 in the case filed by the opposite party-bank before the DRT and the petitioner No. 2 is the daughter of petitioner No. 1 and Defendant No. 4. Late Kalyan Kumar Dutta, Defendant No. 4 before the DRT stood guarantor as he has executed the deed of guarantee in favour of opposite party bank along with some other persons on 14-9-1994 who had taken the loan. The DRT after institution of the case on 30-5-2003 under Section 19 of the Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter called 'Act, 1993') issued notices to all the defendants. The said Defendant No. 4 was also served by substituted service i.e. by publication in the newspaper on 1 -12-2003. He did not enter appearance. The DRT vide its order dated 1-3-2004 directed to proceed ex parte against the said defendant No. 4. The said defendant died on 23-3-2004. Opposite party bank claimed that it was not aware of the death of the said respondent and therefore could not file an application for substitution of his legal heirs. A writ petition was filed before this Court by the other defendants in the said case challenging the order of DRT dated 6-6-2005 and this Court stayed further proceedings before the DRT, vide order dated 21-6-2905. An affidavit was filed in the said writ petition subsequently disclosing that the said opposite party had died. The said writ petition stood disposed of. The bank filed an application for substitution of the 1 Rs of said Defendant No. 4 on 25-10-2007. The said, application was allowed vide order dated 2'6-12-2007 and the; present petitioners were substituted as has of the said Defendant No. 4. They filed written statement on 1-12-)2p08 and further affidavit in evidence on 8-2-2008. Arguments were heard and judgment was reserved on merit vide order dated 29-5-2008.
3. The petitioners challenged the order dated 26-12-2007 allowing the substitution application, before the DRAT by filing an appeal which has been dismissed by the impugned judgment and order dated 17-3-2008. Hence this writ petition.
4. Sri. Ashwin Vaish, learned Counsel appearing for the petitioner raised the contentions which had been advanced before the DRT and DRAT i.e. as the Code of Civil Procedure (hereinafter called 'CPC') applies in terms before the DRT, application for substitution could have been filed in strict adherence to the provisions contained in Order 22, Rule 4 CPC. It was hopelessly time barred, no application for condonation of delay had been filed. Thus, it could not have been allowed. More so, as the suit stood abated qua the said Defendant No. 4 an application under Order 22, R. 9 CPC should have been filed. The Tribunal had not passed any order setting aside the abatement, therefore orders passed by the DRT as well as DRAT are bad in law.
5. On the contrary, Sri S.K. Padhi, learned Senior Counsel appearing for the opposite party bank vehemently opposed the petition contending that the CPC does not apply In terms nor the principles enshrined in its provisions are attracted in these proceedings. The impugned order did not suffer from any irregularity or illegality. No interference is warranted and therefore the petition is liable to be dismissed.
6. We have considered the rival contentions raised by the learned Counsel for the parties and perused the record.
7. In ordinary law, where CPC is applicable, the question of abatement, condonation of delay in filing an application for substitution; issue of limitation and the procedure for dealing with an application for substitution is being, dealt with by the Courts everyday.
8. If the facts necessary for setting aside the abatement are, also stated in the application for substitution, such an application may be treated as one for setting aside the abatement also. (vide Babaji Padhan v. Mst. Gurubara Padhani and Ors. : AIR1962Ori94 ; Smt. Shakuritala Devi v. Banwari Lal and Ors. : AIR1977All551 ).
9. In Delhi Development Authority v. Raghunath Sahai Gupta, : AIR1973Delhi262 , it has been held by the Delhi High Court that application under Rules 3 and 4 of Order 22 if filed for impleading the legal representatives, there cannot be any bar in law treating the same as an application under Order 22, Rule 9 also for setting aside the abatement if circumstances warrants so.
10. The Division Bench of Delhi High Court in the case of Union of India v. Kundan : AIR1977Delhi38 , has taken a similar view observing that application for substitution may in substance be treated as an application for setting aside the abatement. While deciding the said case, the Court placed reliance upon the judgments in Bachan Ram v. Gram Panchayat, AIR 1971 P&H; 243; Seshamma v. Yeeranki Peda Venkata Rao AIR 1924 Mad 713 and Janakinath v. Nirodbaran Ray : AIR1930Cal422 wherein it has been held that while dealing with such an application, the Court must keep in mind as to whether there was some merit in the case.
11. In State of Madhya Pradesh v. S.S. Akolkar : [1996]1SCR989 the Apex Court held that application for substitution of L.Rs. condonation of delay in filing the same and setting aside of abatement, the Court must act liberally for the reason that delay in official business requires 'broach and approach from public justice perspective.'
12. However, in the instant case, the application for substitution was filed at a much belated stage. No application for setting aside the abatement was filed. Learned Counsel for the petitioner has submitted that in view of the provisions of Order 22, it was not permissible for the DRT or DRAT to allow substitution without setting aside the abatement and it could not be done for the simple reason that no application was filed for that purpose. Therefore, the question for determination of the Court is as to whether the provisions of Order 22 of the CPC applies in term or in principle in the proceeding before the DRT or DRAT.
13. In order to determine the said controversy, it may be pertinent to make reference to the relevant statutory provisions of Act, 1993 and Debt Recovery Tribunal (Procedure) Rules, 1993 (hereinafter called the 'Rules, 1993).
Section 22 of the Act, 1993 reads as under:
Procedure and powers of the Tribunal and the Appellate Tribunal
(1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure including the places at which they shall have their sittings.
(2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following mattefs, 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 or 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.
Rule 18 reads as under:
Orders and directions in certain cases:
The Tribunal may make such orders to give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.
(Emphasis added)
14. A plain and simple reading of the Statutory provisions of Section 22 make it clear that the Tribunal is not bound by the CPC. The Tribunal is to be guided by the principles of natural justice and other provisions of the Act and the Rules for regulating its own procedure. The same provision make it clear that the Tribunal and the Appellate Tribunal shall have for the purpose of discharging their functions under this Act, the same powers as are vested in the Civil Court under the CPC while trying a suit only in respect of matters mentioned under Sub-section (2) of Section 22. Therefore, so far as application of CPC is concerned, it remains restricted to the subject-matters mentioned therein and they are merely power of summoning and enforcing the attendance of any person and examined him on oath, j requiring the discovery and production of documents, receiving evidence on affidavits, reviewing its decisions, dismissing an application for default or deciding it ex parte or any other matter which may be prescribed. Therefore, it is clear from the provisions of Sub-section (2) of Section 22 that the entire CPC does not apply in terms. Rule 18 stipulates that the Tribunal or Appellate Tribunal can pass an order or direction which may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice. Therefore, the power conferred under Rule 18 is much wider than the provisions of CPC could confer upon the Civil Court.
15. So far as Clause (h) of Section 22 is concerned, different Tribunal and Appellate Tribunal have enacted their rules regulations to regulate their proceeding. Learned Counsel for the petitioner has produced before us regulation framed by DRT, Delhi and under Regulation 89 of New Delhi Tribunal, it provides for limitation of 90 days for filing an application for substitution of LRs, from the date of death of the party or person. However, it is made clear that the DRT, Cuttack whom we are concerned with has not framed any regulation. This issue has been dealt elaborately by the appellate forum in the impugned judgment observing that different Tribunals being authorized to frame regulation under the Act, 1993 have framed regulations by applying the provisions of Order 22 of the CPC in the proceedings before them for this purpose. However, DRT, Cuttack has not framed any regulation or adopted regulation already framed by some other Tribunal and in absence of any regulation, it cannot be held that the proceedings stood abated as no application for substitution of LRs had been filed within the period of limitation prescribed under Order 22 and such Order 22 of the CPC does not apply in the proceedings. The finding recorded by the DRAT is as under:
As it has already been held that the provisions of Order 22 of the CPC do not apply in its term in the proceeding before the Tribunal, in the absence of any framed regulation thereto, the application which is necessarily to be made on the death of a party for purpose of keeping alive the proceeding, would be an application in the nature of a miscellaneous application that may be filed in connection with the proceeding before the Tribunal. Since under Section 24 of the Act of 1993 the Limitation Act applies in the proceeding before the Tribunal, such miscellaneous application will be governed by Article 137, which prescribes the period of limitation of 3 years from when the right to apply accrues.
(Emphasis added)
16. In Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. : [1999]3SCR759 , the Hon'ble Supreme Court considered the scope of the powers of the Tribunal to grant ex parte order and after considering the scheme of the Act and Rules, it came to the conclusion as under:
When Section 22 of the Act says that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, it does not mean that it will not have jurisdiction to exercise powers of a Court as contained in the Code of Civil Procedure. Rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice.
The Court further distinguished the power under the said provision of Section 22 pf the Act with different statutory provisions i.e. Section 13(4) of the Consumer Protection Act, 1986, Section 53 of the Foreign Exchange Regulation, Act, 1973 and Section 169 of the Motor Vehicles Act, 1988 and came to the conclusion that in order to give the meaning to Section 22 of the Act, 1993, the Tribunal has exercised the powers of a Civil Court while trying a money suit and as the Tribunal was deciding a money suit, it must have the power to grant interim relief.
17. The said observations made by the Supreme Court were considered by the Apex Court in Allahabad Bank v. Radhi Krishna Malty : AIR1999SC3426 , the Court held as under:
The scope and the extent of the powers of the Tribunal are mainly referred to in Sub-section (1) of Section 22 of the Act which says that the Trfbunal shall not be bound by the procedure laid down by the Code of Civil Procedure but shall be guided 'by the principles of natural justice. As stated in Grapco by this Court, the TriburiaTcan ex-excise powers' contained in the Code of Civil Procedure and can even go beyond the Code as long as it passes orders in conformity with the principles of natural justice. We may add that Section 19(6) does not in any manner limit the generality of the powers of the Tribunal under Section 22(1). It merely states that certain types of injunction of stay orders may be passed by the Tribunal. It is to be noticed that Sub-section (6) of Section 19 starts with the words - 'The Tribunal may make an interim order....The provision is an enabling provision and merely states that certain types of injunction or stay orders mentioned therein can be passed by the Tribunal but such an enumeration cannot, in our opinion, be deemed to be exhaustive nor restricting the Tribunal's powers only to those types of injunction or stay orders. The width and amplitude of the powers are to be gathered from Section 22(1) as stated in Grapco. In addition, Rule 18 enables the Tribunal to pass orders to secure the ends of justice.
Thus, we are of the view that the Tribunal certainly has powers to pass other types of injunction orders or stay orders apart from what is stated in Section 19(6). It may issue notice and after hearing the opposite side, pass orders. Or, it may pass ad interim orders without hearing the opposite side and then give a subsequent hearing to the opposite party and pass final orders. We may also point out that Section 22(2) too does not limit the general powers referred to in Section 22(1).All that Section 22(2) States is that in respect of the type of applications falling under (a) to (h). the Tribunal has only powers as aye vested in a Civil Court.
On the facts of the case before us, we have already stated that the counsel for the respondents refused to accept notice and that therefore the Tribunal proceeded to pass the impugned order. Thus, the Tribunal had conformed to the principles of natural justice. The Tribunal was, therefore very much within its powers in passing the order in question. The High Court, therefore, erred in holding' that the Tribunal had exceeded its jurisdiction and its order is, therefore, liable to be set aside.
(Emphasis added).
Therefore; the ratio of the said judgment remaips that the Tribunal will regulate its procedure giving strict adherence to the principle of natural justice and will apply the provisions of CPC also which are in consonance with the principles of natural justice, in] addition to this, the powers which had specifically been conferred under Section 22(2) of the Act. However, in exercise of powers under Rule 18, the Tribunal or the Appellate Tribunal is competent to pass any order to secure the ends of justice.
18. A very heavy reliance has been placed by the learned Counsel for the petitioner on the Division Bench judgment of this Court in Veer Singh Kothari v. State Bank of India W.P. (C) No. 15777 of 2006 delivered on 10-9-2008 reported in 2009 Cri LJ 29) wherein this very Bench had examined the issue as to whether the application at the behest of the borrower to cross-examine the deponent of an affidavit on behalf of the bank is maintainable. The Court after placing reliance on large number of judgments of the Hon'ble Supreme Court came to the conclusion that as the cross-examination is an integral part of the principle of natural justice, such application is bound to be entertained in view of the provisions contained in Section 22(1) of the Act, 1993 itself. However, considering the object of creation of the Tribunal, this Court had taken the view that right of hearing does not necessarily mean the right of personal hearing in every case. Application for cross-examination can be rejected by the Tribunal if it comes to the conclusion that it is not bona fide and it has been filed only to prolong the litigation. Therefore, the view that has been taken that the provisions of CPC are applicable in the DRT, has to be understood in the context, the case has been decided. The judgment of the Court requires to be read as a whole and cannot be read as a provision contained in the Statute.
19. In Mehboob Dawood Shaikh v. State of Maharashtra (2004) 2 SCC 362 : AIR 2004 SC 2890, the Court observed as under:
A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Supreme Court divorced from the context of the question under consideration and treat it to be complete law decided, by the Supreme Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Supreme Court.
While deciding the said case, reliance has been placed by the Apex Court, upon the judgment in CIT v. Sun Engineering Works (P) Ltd., : [1992]198ITR297(SC) , where it has been held as under:
The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court taken its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.
20. Similarly in Madhav Rao Scindia v. Union of India : [1971]3SCR9 , the Apex Court held as under:
It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.
21. We have gone through the said judgment in Veer Singh Kothari (supra), the observation made therein make it clear that the Tribunal has discretionary power to allow the application for cross-examination and it is not necessary that in every case such an application for cross-examination is to be allowed in spite of the fact that cross-examination is an integral part of the principle of natural justice. Oral examination in every case is not contemplated. In case the Tribunal comes to the conclusion that application has been filed only to delay the proceedings, definitely, the Tribunal has the right to reject the same. Therefore, the Tribunal has to pass an order on the application for cross-examination after taking into consideration the fact as to whether the facts of a particular case warrant to cross-examine. Therefore, the said judgment is of no help to the present petitioner and it has to be read with observations made therein. The ratio of the said judgment is only to the extent that the Tribunal is bound by the principle of natural justice and provisions of CPC which are in consonance thereto.
22. We are of the view that the provisions of OPC do not apply, in term in this case in the absence of any regulation being framed hy the DRT, Cuttack;
23. In Hemraj v. Income Tax Recovery Officer , the Division Bench of Rajasthan High Court after placing reliance upon the judgment in the case of Babubhai v. Nandlal : [1975]2SCR71 came to the conclusion that as the provisions of CPC are not applicable in writ jurisdiction, the application for substitution of LRs has to be dealt with differently and it cannot be rejected being time barred, if the other circumstances are taken into consideration and application deserves to be allowed.
24. In N. Kunhichekku Haji (D) by LRs. v. State of Kerala, : 1995(2)SCALE663 the Hon'ble Supreme Court considered a case wherein the appellant had died in 1983 and application for substitution was filed in 1994 i.e. after 11 years of the death of the appellant and there was no proper explanation for such inordinate delay. The issue of abatement of such an appeal was also raised. However; the Apex Court rejected the contention considering the aspect of substantial justice observing that technicalities should not stand in the way for consideration of the matter in issue. Therefore, larger public interest should be taken into consideration 'in meeting the procedural cobweb and the technicalities should not subsume substance.' The Court rejected the contention of the opposite party that the appeal stood abated on account of the fact that the legal representatives of the appellant have not been brought on record within the limitation.
28. In Puran Singh v. State of Punjab, : [1996]1SCR730 , the Hon'ble Supreme Com t considering the issue of substitution of LRs and abatement and application for condonation of delay in filing such application in writ jurisdiction observed as under:
In such a situation, after the death of the respondent if the right to sue survives against the legal representative of such respondent, then the petitioner has to substitute the legal representative of such respondent before the writ petition can proceed and can be heard and disposed of. The petitioner has to take steps for substitution of legal representative within a reasonable time. It need not be impressed that it will be unreasonable on the part of the Court to implead the legal representative of the deceased respondent after lapse of several months or years and then to direct them to contest the claim of the petitioner merely on the ground that after the death of the original respondent the right, title or the interest of such respondents has devolved on them.
26. In view of the above, in case the provision of Order 22 do not apply in terms in such a fact situation, the question does as to whether the order of the Tribunal or appellate Tribunal is bad in law. Taking into consideration the facts; and circumstances of the present case, substituted service was made and Defendant No. 4 was served by publication in newspaper having wide circulation on 1-12-2003. Defendant No. 4 died and three different dates of his death have been given by the present petitioners for the reasons best known to them. The same are 5-12-2003, 23-3-2004 and 28-10-2004. There is nothing on record to ascertain as to on which date the Defendant No. 4 has actually died. No explanation could be offered by the learned Counsel for the petitioner in this regard. Certificate of death showing the correct date of his death has not been placed on record till today for the reasons best known to the petitioners. The same remain the position regarding the knowledge of the factum of death by the officers of the bank. A writ petition had been filed by some of the defendants before this Court and further proceeding before the Tribunal, had been stayed. It is pointed out that one of the defendants filed an affidavit in the said writ petition wherein it was also mentioned that the said Defendant No. 4 had died. It was only when the writ petition was disposed of, the bank could file an application for substitution of LRs which has been allowed by the DRT. The Court cannot lose sight of the intention of the legislature while framing Rule 18 of the Rules, 1993, which empowers the Tribunal to pass any order to secure the ends of justice.
27. The amount of recovery involved here is more than five crores. Therefore, we are of the considered opinion that the Tribunal has rightly exercised its power and allowed the application for substitution for advancing the cause of justice. In view thereof, no interference is called for.
The petition lacks merit and is accordingly dismissed.
B.N. Mahapatra, J.
28. I agree.