1. Appellant State Bank of India (hereinafter referred to as the 'appellant Bank') has filed original application No. 18/2004 before the Debts Recovery Tribunal, Jabalpur (hereinafter referred to as the DRT) against respondent Nos. 1 to 6 (as defendants) for the recovery of Rs. 7,28,27,297.23 with interest and costs.
2. The appellant Bank also filed a miscellaneous application for the attachment of the amount due under the arbitration award passed in favour of the; defendant No. 1 company (and against the State of Chhattisgarh and the Principal Secretary, Department of Forests, Government of Chhattisgarh) on 7th November, 2003 for a sum of Rs. 6,06,10,4367- with interest. The appellant Bank urged in that application that the defendant No. 1 company is likely to get the said award amount from the State of Chhattisgarh and Department of Forests, Government of Chhattisgarh, that the same can be attached, and that otherwise there are every chance of siphoning off the funds by the defendant No. 1 company for other purposes. The appellant Bank has further urged that if the said amount is not attached, it will be put to irreparable loss. The appellant Bank also prayed for a direction to the respondents in the arbitration proceedings (State of Chhattisgarh and Department of Forests, Government of Chhattisgarh) to send the amount to the DRT.3. As in seen from the impugned order, the respondent-defendant Nos. 1 and 2 did not file any reply to this application for attachment, but they filed an application for vacating the ex pane interim order by which the State of Chhattisgarh and, Principal Secretary, Department of Forests, Government of Chhattisgarh were directed to maintain status quo in respect of award amount. It is also seen from the impugned order that the appellant Bank did not file any reply to this application filed by respondents defendant Nos. 1 and 2. It is further seen from the impugned order that by consent of parties arguments on both the applications, namely, for attachment and for vacating the ex parte interim order, were heard together by the learned Presiding Officer of the DRT. The learned Presiding Officer of the DRT passed impugned order dated 12th March, 2004 observing that the award amount has not yet been received by the defendants and, therefore, it cannot be stated to be the property of the defendants in terms of Section 19(12) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act'). The learned Presiding Officer held that an interim order can be granted only in respect of assets and properties of the defendants as per the provisions of Section 19(12) of the Act. Therefore, the learned Presiding Officer of the DRT dismissed the application for attachment filed by the appellant Bank, and vacated the ad interim order.
4. Aggrieved, the appellant Bank has preferred this appeal, and the respondent No, 1 defendant has filed a suitable reply opposing the appeal. Respondent Nos. 8 and 9 did not file any reply, and the learned Counsel for the respondent Nos. 8 and 9 stated that they did not wish to file any reply on the merits of the appeal. He stated that they are unnecessary parties to the appeal, and that they were not parties before the DRT. The contention of the respondent Nos. 8 and 9 is that the appeal is not maintainable.
6. The learned Counsel for the appellant Bank contends that the learned Presiding Officer of the DRT dismissed the application for the attachment of the award amount only on the ground that Sub-section (12) of Section 19 of the Act enables the Tribunal to order attachment of the defendant's property only, whereas, the award amount is yet to be received by the defendants and, therefore, it cannot be stated to be the property of the defendants, which can be attached.
7. The learned Counsel for the appellant Bank contends that this is a case where the sole Arbitrator has passed the award in favour of the appellant No. 1 defendant company on 7th November, 2003 payable by the State of Chhattisgarh and Principal Secretary, Department of Forests of the said Government and, therefore, die award amount can be attached.
The learned Counsel for the appellant Bank contends that it is not necessary that the amount should be immediately payable for the purpose of attaching the same. The contention of the contesting respondents defendants on the other hand is that so long as the amount has not been received by the appellant No. 1 defendant company (in whose favour the award has been passed), the amount cannot be attached. But the learned Counsel for the appellant Bank relies upon the decision in Hyderabad Co-operative Commercial Corporation v. Syed Mohiuddin Khadi where it has been held as follows: Attachment of debts is a process by means of which a judgment creditor is enabled to reach money due to the judgment debtor which is in the hands of a third person. These are garnishee proceedings.
The be capable of attachment, there must be in existence at the date when the attachment becomes operative something which the law recognizes as a debt. So long as there is a debt in existence, it is not necessary that it should be immediately payable. Where any existing debt is payable by further instalments, the garnishee order may be made to become operative as and when each instalment becomes due. The debt must be one which the judgment debtor could himself enforce for his own benefit. A debt is a sum of money, which is now payable or will become payable in the future by reason of a present obligation (see Web v. Stenton). In the present case, the letter dated 12th June, 1959 proves that there is an obligation to pay the specified sum of Rs. 4,50,0007- to the co-operative society against the State and it ripened into a debt payable to the co-operative society.
8. Relying upon the decision, the learned Counsel for the appellant Bank contends that in order that an order for attachment can be passed by the Tribunal, it is not necessary that the amount to be attached should be immediately payable and it is sufficient that the amount is a debt payable to the respondent No. 1 defendant by the State of Chhattisgarh and the Forest Department of the said Government. But, the learned Counsel for the contesting respondent-defendants on the other hand contends that this decision relied upon by the appellant Bank relates to the case of a decree-holder seeking attachment of the debt due to the judgment debtor payable by the third party. He contends that where a person has obtained a decree against, the defendant, the attachment of the amount due to the defendant from a third party is possible in view of the provisions contained in Order 21 Rule 46 of the CPC, 1908, but where a plaintiff seeks a direction from the Tribunal for attachment before judgment, then the property/asset sought to be attached must belong to the defendant. He contends that it is clear from the provisions of Sub-section 12 of Section 19 of the Act that the property/asset should belong to the defendant to enable the Tribunal to order the attachment before judgment.
The Tribunal may make an interim order (whether by way of injunction or stay or attachment) against the defendant to debar him from transferring, alienating or otherwise dealing with, or disposing of, any property and assets belonging to him without the prior permission of the Tribunal.
9. No doubt as per the provisions of Sub-section (12) of Section 19 of the Act reproduced above, it is clear that the property or the asset should belong to the defendant, so that the Tribunal can pass an interim order of injunction, stay or attachment. In the present case on hand it cannot be stated that the award amount did not or does not belong to the respondent No. 1 defendant company. Once, the award is passed, the amount due thereunder becomes the asset/property of the respondent No. 1 defendant company. The defendant No. 1 becomes entitled to enforce the award against the State of Chhattisgarh and the Principal Secretary, Department of Forests of that State. May be the amount payable thereunder has not been immediately paid to the respondent No. 1 defendant company. The contention that the respondents in the award proceedings namely, the State of Chhattisgarh and Forest Department may challenge the award by taking appropriate proceedings cannot alter the situation in this case. It is not stated that the State of Chhattisgarh or the Forest Department of the said State has preferred any proceedings challenging the award. 'In fact, during the course of the arguments, the learned Counsel appearing for the State of Chhattisgarh and the Forest Department of the said State stated that they are prepared to pay the money either to the respondent No. 1 defendant or as per the directions of this Tribunal. Therefore, it is not as if they have any objection to the payment of the award amount to the respondent No. I defendant company.
10. Even otherwise, the fact that the money under the award will be paid by the State of Chhattisgarh or the Forest Department of the said State on a later date will not any the less make the amount due under the award a debt payable to the respondent No. 1 defendant company.
Therefore, it is evident that the award amount belongs to the defendant No. 1 company and consequently the appellant Bank is certainly entitled to attach the award amount. The distinction sought to be made out by the contesting respondent-defendants between the case of an attachment before judgment and the attachment after the judgment in this regard is not acceptable. Once, it is evident that the amount is due to the respondent No. 1 defendant company the appellant Bank will be entitled to attach it either before the judgment or after the judgment. Whether the appellant Bank has made out the ground for attachment before the judgment or not is a different matter about which I will deal with later. Therefore, the application for attachment before judgment filed by the appellant Bank could not have been dismissed by the learned Presiding Officer of the DRT on the ground that the amount due under the award has not been received by the respondent No. 1 defendant company and, therefore, it is not the property/asset belonging to the respondent No. 1 defendant company or that it cannot be attached.
11. But, the leaned Counsel for the contesting respondent-defendants contends that the appellant Bank has neither pleaded nor established the essential ingredients for the attachment before judgment of the award amount. In this connection, he refers to the provisions of Sub-section (13)(A) of Section 19 of the Act, which read as follows: Where, at any stage of the proceedings, the Tribunal is satisfied, by affidavit or otherwise, that the defendant, with, intent to obstruct or delay or frustrate the execution of any order for the recovery of debt that may be passed against him, (ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Tribunal; or (iii) is likely to cause any damage or mischief to the property or affect its value by misuse or creating third party interest.
12. The learned Counsel for the contesting respondent-defendants then refers to the averments made in the application for attachment before judgment filed by the appellant Bank before the DRT. The averments in the said application are as follows: 1. That the applicant Bank has filed the present original application against the defendants jointly and severally for the recovery of Rs. 7,28,27,297.23 and interest with costs, expenses, etc.
2. That recently the applicant Bank came to know about the arbitration award passed on 7th November, 2003, by the sole Arbitrator Mr. Justice R.C. Shrivastava (Retd.) in the matter of defendant No. 1 against the State of Chhattisgarh, Principal Secretary, Department of Forests, Government of Chhattisgarh, Raipur Hon'ble Arbitrator has passed the award on 7th November, 2003 for a sum of Rs. 6,06,10,436/- plus interest against the State of Chhattisgarh and Department of Forests. A copy of the award passed under Section 31 of the Arbitration and Conciliation Act, 1996 on 7th November, 2003 is filed as Exhibit-A 106.
3. That the defendant No. 1 as likely to get the amount of Rs. 6,06,10,436/-plus interest from the State of Chhattisgarh, Department of Forests, Government of Chhattisgarh and, therefore, the same can be attached. Otherwise there are every chances of siphoning off funds by defendant No. 1 for other purpose. If the amount payable under the award is not attached, the applicant Bank will suffer irreparable loss. Therefore the respondents in arbitration award be directed to send the amount payable under the award directly to this Hon'ble Tribunal and the same may be attached in the interest of justice. Hence this application.
It is therefore humbly prayed that the amount under the arbitration award be attached and the respondents in the arbitration award be directed to make payment directly in the Tribunal in the interest of justice.
13. The learned Counsel for the contesting respondent-defendants contends that the provisions of Sub-section (13)(A) of Section 19 of the Act are more or less similar to the provisions of Rule 5 of Order 38 of the CPC, 1908 relating to the attachment before judgment. He contends that these provisions contained in the Act and the CPC, 1908 are rigorous provisions entailing serious consequences i.e., preventing a person from dealing with his own property or asset and, therefore, unless and otherwise, a person seeking attachment before the judgment strictly complies with the provisions in this regard, and fulfils the essential ingredients by not only making the necessary averments, but also by placing sufficient materials in support thereof, the Court/Tribunal would not be in a position to grant or justified in granting the order, and should not grant an order for attachment before the judgment.
In support of this contention, the learned Counsel for the contesting respondent defendants relies upon the decision in Premraj v. Md. Maneck Gazi wherein 14 guiding principles for granting an order for attachment before judgment have been laid down. Among these are the main guidelines that an order under Order 38 Rules 5 and 6 of the CPC can be issued if circumstances exist as are stated therein, that the existence of those circumstances must be proved to the satisfaction of the Court, that the averments in support of this request should not be vague, and that the source of information from which the plaintiff came to know that the defendant has acted or is about to act with the intent to obstruct or delay the execution of the decree that may be passed against him should be disclosed. He also relies upon the decision in Rajpal Cloth House v. Fancy Textiles 1997 RLR 411, wherein it was held that the Court should be satisfied about the prima facie case and evidence in favour of the plaintiff in respect of the claim for attachment before judgment or security. He further relies upon the decision in Bank of India v. National Tiles Works Industries wherein it was held that before invoking Rule 5 of Order 38 of the CPC, it must be shown by plaintiff that the defendant has acted or is about to act with the intent to obstruct or delay the execution of any decree that may be passed against him, and that the Court must be satisfied that all the ingredients of the rule exist. The learned Counsel for the contesting respondent-defendants relies upon the decision in Hari Shanker v. Smt. Bhoori Devi 1975 (Vol.
XI) DLT 159; Tatanagar Transport Corporation v. Ajanta Enterprises Har Krishan Khosla v. Alembic Chemical Works Co. Ltd. Palghar Rolling Mills Pvt. Ltd. v. Visvesvaraya Iron and Steel Ltd. AIR 1985 Knt. 282; T. Srinivasan v. V. Srinivasan and Onkar Mal Mittal v. State Bank of Patiala, AIR 1992 P and H. 104, wherein these guidelines for the grant of an order of attachment before judgment have been spelt out and reiterated.
14. Relying upon these decisions, the learned Counsel for the contesting 9 respondent-defendants contends that the provisions of Sub-section (13)(A) of Section 19 of the Act have not been complied with by the appellant Bank. He contends that the essential ingredients which enable the Tribunal to grant an order for attachment before judgment have neither been pleaded nor proved to the satisfaction of the Tribunal and, therefore, the DRT was right and justified in dismissing the application for the grant of an order for attachment before judgment. He points out that the appellant Bank has not even averred that the respondent No. 1 defendant company has acted or is about to act with the intent to defeat and delay the decree that may be passed in this original application or that with that intention is attempting to siphon off the funds that may be received under the award. He points out that the only averment made in the application is that if the award amount is not attached there are chances of siphoning off the funds by the respondent No. 1 defendant company for other purposes. He further contends that apart from not even making the necessary averment in the application for attachment before judgment, the appellant Bank has not even mentioned the source of the information from which it came to know that there are chances of siphoning off the funds by the respondent No. 1 defendant company for other purposes. He contends that it is apparently clear, from the various decisions cited above that the appellant Bank has to make the necessary averments regarding the intention on the part of the respondent No. 1 defendant company to defeat and delay the decree that may be passed, and also to disclose the source from which the appellant Bank came to know about the alleged chances of siphoning off the funds by the respondent No. 1 defendant company. He further contends that the affidavit in support of this application is also vague and bereft of these details and, therefore, the DRT does not even have the power and the jurisdiction to grant an order for attachment before judgment. He contends that in these circumstances even if an order of attachment had been made by the DRT since the appellant Bank has not complied with the provisions of Sub-section (13)(A) of Section 19 of the Act such an order of attachment will be void in view of the specific provision contained to this effect in Sub-section (16) of Section 19 of the Act.
15. Of course, the learned Counsel for the appellant Bank contends that this is not a case where the appellant Bank had sought for the attachment before judgment of immovable property, but had sought attachment of the debt due to the respondent No. 1 defendant company.
He contends that it is only where the plaintiff prays for an order for attachment before judgment of the immovable property that the plaintiff has to give all these details whereas, in a case where the appellant Bank prays for the attachment before judgment of the amount due under the award, the appellant Bank could only say that there are chances of the respondent No. 1 defendant company siphoning off the funds. He contends that this is all the averment that the appellant Bank can make in such a case, and that the money can be siphoned off in no time if the order for attachment before judgment is not granted.
16. In my view, this contention of the appellant Bank cannot be accepted. Even in a case where the plaintiff seeks an order for attachment before judgment of the amount due to a defendant the appellant Bank will have to make out the grounds and establish the ingredients of Sub-section (13)(A) of Section 19 of the Act. The appellant Bank has specifically averred in para 9 of the Memorandum of Appeal that the impugned order has been passed by the DRT as if the application has been filed under Section 19(12) of the Act, whereas, Section 19(12) is not directly applicable to the facts of the case. It has also been mentioned that the Tribunal failed to appreciate that it has been empowered to pass an order for attachment under Section 19(13)(A) of the Act, the provisions of which are akin to Order 38 Rule 5 of the CPC.17. Therefore, unless and otherwise the appellant Bank has made the necessary averments to show that the conditions for the grant of the order for attachment before judgment exist, and also prove to the satisfaction of the Tribunal about the existence of those conditions by affidavit or otherwise, the Tribunal will not be in a position to grant an order for attachment before judgment. As pointed out already, the appellant Bank has not even averred that the respondent No. 1 defendant company with the intent to defeat and delay the decree, which may be ultimately passed in the original application, is about to siphon off the funds due under the award. The appellant Bank has merely stated that there is every chance of siphoning off the funds by the respondent No. 1 defendant company.
18. But the amount due under the award is due to the respondent No. 1 defendant company and it is entitled to receive the same, if there are no legal impediments. Therefore, receiving the amount due under the award cannot by itself amount to an act done with the intention to defeat or delay the execution of the recovery certificate, which may be ultimately passed. Therefore, the appellant Bank has to make the necessary averments in the application, supported by an affidavit, regarding the acts done or to be done with the intent to defeat and delay the execution of the recovery certificate. There is no such averment in the application filed by the appellant Bank or in the affidavit filed in support thereof. The appellant Bank has also not disclosed its source of information as to how it came to know that there are chances of siphoning off the funds by the respondent No. 1 defendant company, 19. If we take into consideration the absence of the relevant and vital averments in the application and the affidavit filed in support thereof, in the light of the several decisions cited above, it will be clear that the appellant Bank has not made out the necessary grounds for granting an order for attachment before judgment.
20. The contention of the learned Counsel for the appellant Bank that since the asset sought to be attached is the amount due under the award, the appellant Bank can only make, in the maximum, the averment that there are chances of siphoning off the funds by the respondent No.1 defendant company, cannot be accepted. The appellant Bank has also to make all the necessary averments as indicated above even where the attachment of the money due to the defendant is sought for, and also place the material to support such averments. The appellant Bank has also to disclose the source of its information regarding the intent of respondent No. 1 defendant company. Therefore, the contention that this is all the maximum averment that could be made by the appellant Bank cannot be accepted.
21. The learned Counsel for the appellant Bank points out that Section 22 of the Act provides that the DRT and DRAT shall be guided by the principles of natural justice and that they shall not be bound by the procedure laid down by the CPC, 1908. He also points out that Sub-section (25) of Section 19 of the Act also enables the Tribunal to make such orders and 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. He also points out that Section 25 of the Act enables the Recovery Officer to recover the amount of the debt specified in the recovery certificate by attachment and sale of the movable and immovable property of the defendant. He contends that the combined effect of these provisions would be that the DRT will be entitled to pass an order for attachment before judgment even to give effect to its final order that may be passed later on in the original application. He, therefore, contends that an order for attachment before judgment can be passed under Sub-section (25) of Section 19 of the Act also.
22. But, in my view, such a wide interpretation cannot be given to the words "to give effect to its order" found in Sub-section (25) of Section 19 of the Act. These words cannot include within their ambit the order to be passed on a future date in the original application.
The power granted under Sub-section (25) of Section 19 of the act enables the Tribunal to pass orders which are necessary to give effect to its orders already passed, and not an order which is likely to be passed in future.
23. This apart, the learned Counsel for the contesting respondent-defendants contends that when there is a specific provision in Sub-section 13(A) of Section 19 of the Act, under which the plaintiff can seek an order for attachment before judgment, the appellant Bank cannot invoke the inherent powers of the Tribunal contained in Sub-section (25) of Section 19 of the Act. But, the learned Counsel for the appellant Bank on the other hand contends that the provisions contained in Sub-section (25) of Section 19 of the Act confer far more and wider powers on the Tribunal than the powers conferred on a Civil Court by Section 151 of the CPC, 1908, inasmuch as Sub-section (25) of Section 19 of the Act specifically provides that the Tribunal is also entitled to pass orders "to give effect to its orders". The learned Counsel for the appellant Bank also relies upon the decision of the Hon'ble Supreme Court in Allahabad Bank v. Radha Krishna Maity II and contends that the Tribunal has the powers to pass interim orders under Section 22(1) of the Act to restrain the defendants from recovering any money from a particular party. But, in that case, the Hon'ble Supreme Court was considering the powers of the Tribunal to grant orders of ad interim injunction or stay, and held that the Tribunal can exercise the powers contained in the CPC, 1908 and can even go beyond the Code as long as it passes orders in conformity with the principles of natural justice. The Hon'ble Supreme Court was not considering the circumstances under which an order for attachment before judgment can be granted under Sub-section (13)(A) of Section 19 of the Act. Further, the appellant Bank has specifically averred in para 9 of the grounds of appeal that the DRT has passed orders in the application as if the prayer by the appellant Bank was made under Sub-section (12) of Section 19 of the Act, which is not applicable to the facts of this case. Therefore, this decision will not be of help to the appellant Bank.
24. In these circumstances, when there is a specific provision in Sub-section (13)(A) of Section 19 of the Act, and when even according to the appellant Bank the impugned order (on the request for attachment before judgment) has been passed without considering the provisions of the said Sub-section, the appellant Bank cannot contend that the Tribunal can grant an order for attachment before judgment by taking into consideration the provisions of Sub-section (25) of Section 19, and Sections 22 and 25 of the Act.
25. The learned Counsel for the contesting respondent-defendants further contends that the relief prayed for by the appellant Bank namely, an order for the attachment before judgment is a discretionary remedy, and when the DRT had exercised its discretion to decline the relief to the appellant Bank, this Tribunal, sitting on appeal, shall not interfere with the discretion exercised by the DRT, even if this Tribunal comes to a conclusion different from that of the DRT. He contends that unless and otherwise, the order is completely perverse, this Tribunal should not interfere and grant the relief prayed for by the appellant Bank in this appeal. He contends that the granting of this relief at this appellate stage will also deprive the respondent No. 1 defendant company of an opportunity of preferring an appeal. But, in my view it is not necessary for me to go into this question inasmuch as I have held that the appellant Bank has not made out the grounds for granting this relief.
27. Before approaching the DRAT, the appellant Bank had filed a what petition before the Hon'ble High Court of Judicature at Jabalpur (Writ Petition No. 1512 of 2004) challenging the impugned order passed by the DRT, Jabalpur in this matter. The Hon'ble High Court by the order dated 13th April, 2004 disposed of the writ petition with a direction that the appellant Bank should approach the DRAT for appropriate relief. The Hon'ble High Court also directed that if the appeal is not filed within a period of one week from the date of the Order (13th April, 2004), then the appellant Bank shall compensate the respondent No. 1 defendant company @ Rs. 30,0007- per day for a week. This appeal has been presented on 19th April, 2004 itself. The Hon'ble High Court also directed that in case, the appeal is filed within the said period, the Tribunal shall consider the prayer of the parties, and in case of dismissal of the appeal by the Tribunal, the Tribunal shall pass adequate orders duly compensating the respondent No. 1 defendant company for the loss caused to the respondent No. 1 defendant company, because of the non-execution of the award during this period.
28. Therefore, inasmuch as the appeal has to be dismissed, this Tribunal has to decide the quantum of compensation to which the respondent No. 1 defendant company will be entitled. But, the parties have not placed any material at this stage to show/establish the quantum of compensation to which the respondent No. 1 defendant company will be entitled. The Hon'ble High Court has also directed the payment of compensation at Rs. 30,000/- per day for a period of one week only, if the appeal is not filed by the appellant-Bank within the said period of one week. But the Hon'ble High Court has directed that in case of dismissal of the appeal, the Tribunal shall pass adequate orders duly compensating the respondent No. 1 defendant company for the loss caused to it, because of the non execution of the award.
29. Therefore, the respondent No. 1 defendant company has to plead and prove, a as to how much loss it sustained and as to the quantum of compensation to which it will be entitled. The appellant Bank has also to take the necessary pleadings in this regard. Therefore, in the absence of proper pleadings and proof as to the loss and also as to the quantum of compensation to which the respondent No. 1 defendant company will be entitled, it will not be proper and just to pass an orderz fixing any amount as the quantum of compensation to which the respondent No. 1 defendant company will be entitled. In the interests of justice, I am of the view that the respondent No. 1 defendant company and the appellant Bank shall file the necessary affidavits in this behalf, so that the loss sustained by the respondent No. 1 defendant company can be assessed and the quantum of compensation to which it will be entitled can be considered and decided.
30. For this purpose, the respondent No. 1 defendant company and the appellant Bank are directed to file the necessary affidavits accordingly.
32. However, the respondent No. 1 defendant company shall file the necessary affidavit regarding the loss sustained by it and as to the quantum of compensation claimed by it within ten days from today into the Registry of the DRAT, Allahabad with an advance copy to the appellant Bank. The appellant Bank shall also file its reply affidavit within ten days from the date of receipt of the copy of the affidavit filed on behalf of the respondent No. 1 defendant company.
List the appeal on 5th July, 2004 for the purpose of determining the loss sustained by the respondent No. 1 defendant company and the compensation to which it is entitled.