IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12853 of 2008 1. Shri Aditya Jalan, son of Shri Bal Manohar Jalan, resident of Hira Place, Dak Bunglow Road,Patna. 2. Giriraj Manohar Jalan, son of Late Hira Lal Jalan, resident of Quila House, Patna City, P.S. Chowk, District-Patna. ……………. Petitioners. VERSUS 1. The Central Bank of India, New Dak Bunglow Road, Patna having its registered office at Chadramukhi, Nariman Point Mumbai-400021 through its Chairman-cum- Managing Director. 2. Regional Manager, Central Bank of India, Maurya Lok Complex, B-Block, Second Floor, Patna. 3. Chief Manager, Central Bank of India, New Dak Bunglow Road, Patna-800001. 4. The Recovery Officer, Debts Recovery Tribunal, Patna. 5. Bal Manohar Jalan, S/o Late Hira Lal Jalan, R/o Quila House, Patna City, P.S. Chowk, Patna. ……………. Respondents. ----------- For the Petitioner : Mr. Mrigank Mauli, Advocate. Mr. Vinay Mistry, Advocate. For the Bank : Mr. Ajay Kumar Sinha, Advocate. For the respondent no. 5 : Mr. Rajendra Pd. Singh, Advocate. ------------- 07 10.12.2008 The petitioners have come to this Court against the order of the Recovery Officer, Debt Recovery Tribunal, Patna dated 07.07.2008, passed in R.P. No. 175 of 2001, whereby their properties are being sought to be sold, even though, they were neither the debtor nor the guarantor for the dues of respondent no. 5, nor the property having been offered as collateral security to the Bank for any dues or liability incurred by respondent no. 5. Learned counsel for the Bank rightly points out that what has been ordered to be sold is the share of respondent no. 5 in the said joint property. This Court noticing the controversy issued notice to respondent no. 5. Respondent no. 5 has since appeared and filed a counter affidavit denying his liability. The stand of respondent no. 5 is that he had stood guarantor - 2 - for a certain loan to the extent of Rs. 40,000/- only and his liability did not exceed beyond Rs. 40,000/-. The principal debtor defaulted and a suit was instituted by the respondent-Central Bank against the principal debtor and the guarantor. Upon service of notice of the suit, respondent no. 5, the guarantor appeared and took time to file written statement. Then the suit was transferred to another Court of which no notice was given to respondent no. 5. The suit thus proceeded ex parte against respondent no. 5 and was decreed, as such. Learned counsel for respondent no. 5 states that though originally he had stood guarantor up to an amount of Rs. 40,000/- only, the Bank without consent of respondent no. 5 enhanced the limit of advances to the principal debtor. Thus, novating the contract and relieving respondent no. 5, but still on default, respondent no. 5 is being asked to pay up for the enhanced dues not agreed to be guaranteed by respondent no. 5. The suit being decreed ex parte as against respondent no. 5, as aforesaid. So far as interest is concerned, for future interest after institution of suit simple interest was awarded by the Court. While execution proceedings were pending, the matter transferred to the Debt Recovery Tribunal (DRT), Patna. While the execution case was pending respondent no. 5 on coming to know of the ex parte decree filed an application in terms of Order 9 Rule 13 for recall of the decree before the Civil Court. On 12.01.2001 Bank made an application to the Executing Civil Court for withdrawal of the execution case, which application was - 3 - allowed on 12.01.2001. Having withdrawn the execution from Civil Court, they then on 15.02.2001 filed an application before the DRT, for recovery of the amount, allegedly wrongly calculating the decretal amount on basis of interest pendente lite and future at compounding in stead of simple interest as awarded by Civil Court now shown to exceeded Rs. 10 lacs. Respondent no. 5 submits that if the amount was calculated at that day in accordance with the decree of the Civil Court, which awarded interest pendent elite and future as simple interest and not compounding then the decretal amount would not have exceeded Rs. 10 lacs and thus the DRT had no jurisdiction to entertain the matter at all but notwithstanding the aforesaid Bank fraudulently obtained a certificate from the DRT and then filed for its recovery being Recovery Proceeding No. 175 of 2001 pursuant to O.A. No. 02 of 2001. In the mean time, the application of respondent no. 5 under Order 9 Rule 13 of CPC was also transferred to the DRT, which was registered as Miscellaneous Case No. 05 of 2006. It is at this stage Recovery Officer passed the order impugned. I may note here that respondent no. 5 has filed an application in terms of Section 26 (2) of the DRT Act for recall or cancellation of certificate before the Presiding Officer on the ground that the certificate was obtained by misrepresentation and wrong calculation of interest. Heard the Parties. In my view, no useful purpose is served by keeping the proceedings pending. As noted above, the proceedings have taken a multifarious facet. There are two applications on behalf of respondent no. 5 now pending before the Presiding Officer, DRT. One - 4 - is Miscellaneous Application 05 of 2006, which was the original application in terms of Order 9 Rule 13 CPC for recall of the ex parte decree. The second application is a recent application filed in terms of Section 26 (2) of the DRT Act for canceling the certificate. In my view, as all actions of Recovery Officer are consequential to and dependent upon the validity of the certificate itself, applications challenging whereof are pending, it would only be appropriate to direct the Presiding Officer, DRT, Patna, to first decide the two applications of respondent no. 5. In case, either of the application of respondent no. 5 succeeds, the effect would be that the certificate would be recalled or cancelled. If the certificate is cancelled, the natural consequence would be that the recovery proceeding would vanish and so it would nullity all steps taken by the Recovery Officer in those proceeding. Thus, to settle all controversies amongst parties, I direct the Presiding Officer, DRT to decide the two aforesaid applications of respondent no. 5, after hearing all the parties in accordance with law at the earliest, the consequence in law would follow, thereafter. Obviously, till such a decision is taken the recovery proceedings, as aforesaid, would remain in abeyance. With these observations and directions, the writ petition itself stands disposed of. Trivedi/ (Navaniti Prasad Singh,J.)