1 WP-6552/2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6562 OF 2005 M/s. Sai Development Services and anr. ..Petitioners. Vs. Punjab and Sind Bank. ..Respondent. Ms. S. P. Trivedi i/by M/s. A. Bharat & Co. for the Petitioners. None for the Respondent. CORAM : B.H. MARLAPALLE & A.A. SAYED, JJ. DATE : 31st August, 2010 PC : 1 We have heard Ms. S.P. Trivedi, the learned counsel for the petitioners who are aggrieved by the order dated 6.5.2003 passed by the Debt Recovery Tribunal (III), Mumbai in Original Application No.588 of 2001 and confirmed by the Debt Recovery Appellate Tribunal at Mumbai in Appeal No.149 of 2003 by its Judgment and Order dated 24.8.2005. 2 The Respondent Bank had filed Original Application No.588 of 2001 before the Debt Recovery Tribunal for the recovery of Rs.12,35,898.09ps. with future interest at 16% per annum with quarterly rests till the realization of the amount. The respondent-Bank had granted to defendant No.1 over draft facility 2 WP-6552/2005 to the extent of rupees ten lacs under the sanction letter dated 8.9.1998 and against the security creating equitable mortgage of the immovable property i. e. Shop No.3, Ground floor, Saidwar, F-76, Near Laxmi Industrial Estate, Off Link Road,, Andheri (West). Mr. Gul Tahilram Sadarangani and the defendant No.2 were carrying on the business in partnership in the name and style of M/s. Sai Developments Services being defendant No.1. Mr. Sadarangani expired in the year 2000 without leaving any will. In this situation, the defendant No.1 informed the bank that there were no legal heirs of Mr. Sadarangani. Consequently, the present petitioner No.2 was carrying on the business in the name and style of present petitioner No.1 as the sole proprietor. 3 On 21.9.1998, the defendant No.1 executed Demand Promissory Note, Letter of Confirmation and agreed to pay penal interest. Letter authorizing the bank to recover the loan amount, Letter of Continuity, Letter by Defendant No.2 and the deceased thereby depositing the title deed and creating charge of equitable mortgage for the amount advanced by the bank were also submitted. In addition, the defendant No.2 executed Guarantee Deed and thereby accepted the liability for repayment of the amount. However, the amount was not paid and therefore, Advocate’s notice dated 7.7.2001 was issued to the defendants. Ultimately, O.A. No. 588/2001 for the recovery of Rs. 3 WP-6552/2005 12,36,799.09ps with future interest was filed. 4 The defendant No.2 filed written statement and took the defence that Tribunal has no jurisdiction to entertain the subject suit as the subject matter of the suit is less than Rs.10.00 lacs. No written statement was filed by the defendant No.1. The original application was adjourned from time to time. The defendant No.2 was attending the proceeding on 3.2..2003. On 3.2.2003, Mr. Bhide, Advocate appeared for the defendant No.2 and sought time for arguments. The said application was allowed and the Advocate was called upon to argue the matter on 30.4.2003. On 30.4.2003, the arguments on behalf of the bank were concluded but nobody was present for the defendant and therefore, for the arguments of the defendant, the matter was adjourned to 6.5.2003. However, on 2.5.2003, another Advocate Mr. M. K. Shah filed his Vakalatnama for the defendant and prayed for time. The said application was allowed but the Advocate was not ready to proceed with the argument. He simply filed a pursis that earlier Advocate may be discharged. It is under these circumstances, the Recovery Tribunal pronounced the Judgment on 6.5.2003 and allowed the application. 5 In the appeal, it was urged before the Appellate Tribunal that the Debt Recovery Tribunal acted in breach of the 4 WP-6552/2005 principles of natural justice, adequate opportunity was not given to the defendant to lead the evidence and even otherwise written statement filed by the defendant No.2 was not taken into consideration. The Appellate Tribunal considered his arguments and perused the roznama sheet in the Original Application and held that the Tribunal had given sufficient opportunity to the defendants and despite adjournments granted, no steps were taken either to lead evidence or to proceed with the arguments. Advocates were changed twice initially and even after the filing of the written statement no advocate was engaged. The Appellate Tribunal therefore, held that the learned Presiding Officer of the Tribunal had committed no errors in pronouncing the Judgment. The Appellate Tribunal held that the intention of the defendant was simply to prolong and protract the matter and to claim that there was breach of principles of natural justice was only by way of an after thought before the Appellate Tribunal. In our considered opinion, the view taken by the Appellate Tribunal cannot be held to be erroneous and therefore, no case is made out to cause interference in the said order. Just because the petitioners have deposited some amount that by itself does not entitle them to pray for the remand of the appeal so as to provide additional opportunity to go before the Debt Recovery Tribunal. The Appellate Tribunal has passed a reasoned order and it is obvious that the appellants demonstrated lack of bonafides in 5 WP-6552/2005 presenting the case before the Debt Recovery Tribunal. 6 Hence, this petition must fail at the threshold and the same is hereby rejected summarily. (A.A. SAYED, J.) (B.H. MARLAPALLE, J.)