1. The appeal arises out of an order dated 28.7.2000 passed by the Presiding Officer, Debts Recovery Tribunal, Calcutta, in a case between Central Bank of India v. Kathihar Jute Mills Ltd. and 5 Ors.
2. The appellant filed an application for issuance of certificate/decree for a sum of one crore ninety-seven lakhs and odd.
The case of the appellant Bank in short is that they filed a suit against the respondent in the Original Side in Calcutta High Court and obtained a decree on 8.6.1986. They obtained me Certified copy on 28.7.1988. The respondents who were Judgment-debtor did not pay the decretal dues and as such the appellant had filed an application on 8.9.1998 before the Debts Recovery Tribunal, Calcutta, alongwith an application for exemption to pay application fee in terms of the said Act. By impugned order dated 28.7,2000, the Presiding Officer declined to exempt the Bank from payment of the application fee. Hence the appeal.
3. Their case is that they had earlier paid the necessary fees while filing the suit in the Calcutta High Court, that the Debts Recovery Tribunal after the promulgation the Act of 1993 is the only Forum available to the appellant for execution of the decree passed in such that suit and the Presiding Officer has misconstrued the decision of other Appellate Tribunals on this point.
4. In course of the written objection, the respondent No. 6 raised several objections with regard to the merit of the application filed before the Debts Recovery Tribunal which in my opinion are not necessary at the present stage since the appeal relates to a particular order of the Presiding Officer of the Debts Recovery Tribunal, dealing with the payment of fees in terms of Rule 7 of the Debts Recovery Tribunal Procedure Rules only.
5. The point for determination is whether in the facts and circumstances, the appellant who was petitioner before the Debts Recovery Tribunal are required to pay requisite fees in accordance with Rule 7 of the Debts Recovery Tribunal Procedure Rules.
6. I have heard the submission of the learned Advocates of both the sides on this point. Be it mentioned that excepting respondent No. 6, none else appeared to contest the appellate contention.
7. The argument advanced on behalf of the appellant is two-fold. It is stated thatthey have already paid the requisite fees while filing suit in the Original Side in the Calcutta High Court and as such they are not required to pay the same again while riling an application before the Debts Recovery Tribunal for the purpose of execution of the decree passed by the High Court. It is also their contention that in terms of the Section 31(A) of the Recovery of Debts Due to Banks and Financial Institutions Act. The only Forum for the purpose of execution of a debt is the Debts Recovery Tribunal when the total decretal dues exceeds a particular limit. The learned Advocate appearing for the respondent however refutes the contention. Since, it is a debt in terms of Section 2(g) of the Act.
8. I have given my careful consideration to the submission of both the sides. Keeping in view, the provisions of law namely. Section 2(g), Section 3 (sic), Section 31 and Section 31(A) of the Act, it must be stated that before the amendment of the Act introducing Section 31(A) might have been some doubt about the necessity of depositing fees again in terms of Section 31 of the Act. But after the introduction of Section 31(A) to the Statute, the position has been made clear.
9. Section 31 of the Act deals with a transfer of suit or a proceeding pending before any Court immediately before the establishment of Debts Recovery Tribunal. Such suits or proceedings in terms of the section shall stand transferred on that date to the Tribunal. Obviously, the proceeding includes execution proceeding as well and as such even if an execution proceeding pending before any Civil Court is transferred before a Debts Recovery Tribunal for the purpose of execution the question of payment of fee in terms of Rule 7 of the Debts Recovery Tribunal Procedure Rules should not arise. An execution proceeding cannot held to be an independent proceeding but it arises out of a decree passed in a suit. Had there been no Debts Recovery Tribunal Act a decree passed by a Civil Court ought to have been executed in the said Court itself and in that case no question of payment of advalorem fee would arise as is required to be done in the case of a suit.
Therefore, notwithstanding the definition debt mentioned in Section 2(g) of the Act. A decree-holder cannot be doubly penalised in the event of an execution proceeding being filed before the Debts Recovery Tribunal with the introduction of the Debts Recovery Tribunal Act since, it is a transfer operating by change of law as against volition of a party. It is not disputed that there is a decree in favour of the appellant passed by the High Court and the said decree has not been executed as yet. The purpose of filing the application before the Debts Recovery Tribunal is to get it executed with the help of the machinery available at the Debts Recovery Tribunal. Therefore, there cannot be any question of payment of fee again under Rule 7 of the Debts Recovery Tribunal Procedure Rules since the Debts Recovery Tribunal is acting practically as an Executing Court in cases like this in accordance with Section 31(A) of the Act. In the circumstances, the order passed by the learned Presiding Officer of the Debts Recovery Tribunal, Calcutta, cannot stand. Hence : That the appeal be allowed on contest against respondent No. 6 and ex parte against the rest. The impugned order of the Presiding Officer of the Debts Recovery Tribunal, Calcutta, stands set aside. The Presiding Officer is directed to register the application in accordance with Section 31 (A) of the Act and thereafter to proceed in accordance with law. There shall not be any costs in the appeal. Let a copy of the order together with the L.C.R. be sent back to the Presiding Officer of the Debts Recovery Tribunal, Calcutta, immediately.