IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:17.09.2009 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.17180 of 2009 and M.P.No.1 of 2009 Mrs.Brihatakuchambal .. Petitioner vs. 1.The Presiding Officer, Debt Recovery Tribunal, Spencers Building, Chennai-2. 2.Vijaya Bank Ramaraj Complex Ist Floor, No.14/A Jawaharlal Nehru Road, Pondicherry-605 001. 3.The Authorised Officer, Vijaya Bank, Ramaraj Complex Ist Floor, No.14/A Jawaharlal Nehru Road, Pondicherry-605 001. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified Mandamus by calling for the records of the first respondent in S.A.No.133 of 2009 dated 29.05.2009 and quash the same and direct the first respondent to afford a reasonable opportunity to advance arguments in accordance with law in S.A.No.133 of 2009. For petitioner : Mr.Vijay Narayan, S.C. For Mr.R.Sankaranarayanan For RR 2 and 3 : Mr.v.Bhiman, For M/s.Sampathkumar Associates ORDER M.VENUGOPAL,J. The petitioner has filed this writ petition praying for issuance of a writ of certiorarified mandamus calling for the records of the first respondent in S.A.No.133 of 2009 dated 29.05.2009 and to quash the same and also for a direction to afford a reasonable opportunity https://hcservices.ecourts.gov.in/hcservices/ to advance arguments in accordance with law. 2.The learned Senior Counsel for the petitioner submits that the petitioner has filed an application to condone the delay of 120 days in filing an appeal before the first respondent/Tribunal as per Section 17 of the SARFAESI Act and sought relief to set aside the proceedings initiated under the said Act and that the office of the first respondent/ Tribunal, by mistake has numbered the appeal as S.A.No.263 of 2007, without considering the delay in filing the appeal and after noticing the mistake, immediately withdrew the assigned number and has given Diary No.1529 of 2007 and the second and third respondents have taken notice of the application to condone the delay in projecting the appeal and also in the stay application and the first respondent/Tribunal has passed an interim order on 03.12.2007 granting status quo and as such, the property has been brought for sale in public auction and it is ascertained that the application for condonation of delay has been allowed by the first respondent/ Tribunal on 22.05.2009 and the appeal itself has been disposed of on 29.05.2009 without providing opportunity to the petitioner to put forward her case and in short, the first respondent/Tribunal has failed to issue any notice to the petitioner after allowing the delay condonation application and also failed to provide opportunity to the petitioner to file the documents for effective adjudication of the controversies/disputes raised in the appeal and therefore, the order passed by the first respondent/Tribunal in S.A.No.133 of 2009 dated 29.05.2009 is to be set aside to prevent an aberration of justice and consequently, to allow the writ petition. 3.Even though, a plea is taken on behalf of the petitioner to the effect that there is no Presiding Officer in the Debts Recovery Appellate Tribunal, Chennai, we are to point out that as per Notification dated 29.05.2009 in F.No.A-12026/3/2006-DRT Government of India, Ministry of Finance, Department of Financial Services, the Honourable Chairperson of the Debts Recovery Appellate Tribunal, Mumbai has been authorised to discharge the functions of the Chairperson, Debts Recovery Appellate Tribunal, Chennai also with immediate effect until further orders. 4.Continuing further, it is the stand of the petitioner that her counsel has obtained the certified copy of the order passed in S.A.No.133 of 2009 dated 29.05.2009 in June 2009 and has informed that he has not been served with any order of condonation of delay in filing the appeal, and in effect there has been no further hearing in the appeal and therefore, he has not sought the permission to cross examine the witnesses and the production of records. 5.The writ petitioner, before the first respondent in S.A.SR.No.1529 of 2007 (filed under Section 17 of the SARFAESI Act, 2002) has prayed for passing of the following interim order: https://hcservices.ecourts.gov.in/hcservices/ "Pending final decision of this application, the applicant seeks issue of the interim orders to stay the operation of the impugned notice dated 13.4.2007 issued by the respondents under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002." 6.The first respondent/Tribunal, in S.A.SR.No.1529 of 2007 on 03.12.2007, has inter alia passed the interim order which runs thus: ".... Without going into the merits of this application and considering the fact that the Respondent bank issued impugned notice for enforcement of rights under the provisions of the SARFAESI Act and in the peculiar facts and circumstances of this case and also to protect the interest of both the parties adequately, it is ordered that status quo as on date is to be maintained by both parties till 17.12.2007. This order be communicated to the Authorized Officer of the Respondent Bank by the Registry of this tribunal immediately. Communicate the copy of this order to the parties, immediately. Call on 17.12.2007 for further hearing and disposal." 7.The submission of the learned Senior Counsel for the petitioner is to the effect that while filing an appeal under Section 17 of the SARFAESI Act, a petition has been filed to condone the delay and though written arguments have been submitted by the bank, the main case has been disposed of after condoning the delay by the Tribunal without providing a reasonable opportunity of hearing to the petitioner, as a result of which, considerable prejudice has been caused. Therefore, to verify the same, we have directed the Registrar (Judicial) to get the entire records relating to S.A.No.133 of 2009 on or before 31.08.2009 and directed the matter to be listed on 31.08.2009. 8.The Registrar (Judicial) of this Court in VRR.No.4594/2009/CC dated 27.08.2009 has addressed the FAX Message to the Presiding Officer of the first respondent/Tribunal to transmit the records in S.A.No.133 of 2009 to this Court on or before Monday 31st day of August 2009 at 10.30 a.m. without fail. The Presiding Officer of the first respondent/Tribunal by way of reply dated 28.08.2009 has sent the F.No.133/2009-DRT-I, Chennai (between Mrs.Brihatkuchambal Vs. Vijaya Bank, Pondicherry Br.) in original along with documents, Memorandum of Appeal as per the index enclosed. However, on https://hcservices.ecourts.gov.in/hcservices/ 31.08.2009, this Court has directed the first respondent/ Tribunal to produce the Original Docket Order on 01.09.2009. On 01.09.2009 this Court has passed the following order: 'It is not evident from the records submitted by the official that after condoning the delay, on what date the case was numbered as S.A.No.133 of 2009 and posted for final disposal to give an opportunity to both the counsel to address their arguments. Hence, the officer concerned is directed to submit his remarks along with the original records before 03.09.2009 Post on 03.09.2009.' On 03.09.2009, the matter has been directed to be listed on 04.09.2009. 9.The Presiding Officer of the first respondent/Tribunal has submitted a report dated 02.09.2009 to this Registry which is extracted below: "I do hereby convey my unqualified apology to the Hon'ble High Court of Madras, for the inconvenience caused in this matter. I submit to state that only in the judgment passed in WP.No.3566/07 (in the case of UCO Bank Vs. M/s.Kanji Manji Kothari and Co and others), the Hon'ble Division Bench, Hon'ble Bombay High Court consisting of Justice Smt.Ranjana Desai and Justice Smt.Roshan Dalvi JJ, have held as follows:- "The provision of Section 5 of the Limitation Act is applicable to the proceedings under Sec.17(1) of the NPA Act". Accordingly, it is brought to the knowledge of this tribunal, that tribunal has got power to condone the delay in filing SARFAESI appeal. After hearing the counsel for both sides, at the first instance, condone delay petition has been allowed. Thereafter, based upon the written submissions filed by both sides, final order passed on 29.5.2009. There is no settled law to entertain Sec.5 application by this tribunal and only after passing of the above judgment of the Hon'ble Division bench of the Hon'ble Bombay High Court, this tribunal passed appropriate orders in condone delay petition. Based on the written submissions of both sides, the SARFAESI Appeal was disposed of, on merits and also in accordance with https://hcservices.ecourts.gov.in/hcservices/ law. Once again, I do hereby convey my unconditional apology for the inconvenience caused to the Hon'ble High Court in this regard. I assure that I will be more careful in future and I pray I may kindly be excused." 10.A perusal of the relevant Notings in File No.133/2009 of the first respondent (relating to the present case) shows the following: "SASR No.1529/07 3.12.2007 Passed over for interim order in the above appeal. Interim order in the Appeal is pronounced and recorded in separate sheets. The following Concluding portion of interim order is passed in the Appeal. Considering the circumstances of this case and also to protect the interest of both the parties adequately, it is ordered that status quo as on date is to be maintained by both parties till 17.12.2007. Call on 17.12.2007 for further hearing and disposal. signed PO SR 1529 2007 DT:17.12.07 Counsel for the parties present. At the request of both the sides adjourned to 19.12.07 SR 1529 2007 DT:19.12.07 Counsel for the parties present. Liberty granted to file WS on or before 9.1.08. For final order by 21.1.08. SR 1529/07 21/1/08 Busy with Review Meeting. Hence reposted to 28/1/08. signed PO SR 1529 2007 dt:28.1.08 It is reported that the proposal is accepted by the res ban. It is also reported that res bank has granted time upto 12.4.08 for making payments. Copy of letter also issued by the res bank dt:14.1.08 also filed. Hence call this matter on 15.4.08 for reporting settlement. https://hcservices.ecourts.gov.in/hcservices/ SR 1529 2007 DT:15.408 For reporting settlement by 30.4.08 SR – 1529/07 DATE: 30/4/08 PO on tour/Leave The case is reposted to 19/06/08 REGISTRAR/AR SR 1529 2007 dt:19.6.08 It is reported that in connected matter a CRP 429/04 filed before Hon'ble High Court and is coming up for hearing on 21.7.08. Hence all this matter on 21.7.08 SR 1529 2007 Dt:21.7.08 It is reported that the matter is pending before Hon'ble High Court. Hence adjourned to 18.8.08. OA/TA No.: SR.1529/09 DATE:18/8/08 PO on tour/Leave Urgent Admn work of High Court. The case is reposted to 18/09/08 REGISTRAR/AR SA 62 and SR 1529 of 2007 dt:18.9.08 Counsel for the parties present. It is reported that on the same subject matter, appeal is filed before Hon'ble High Court in Company petition. Hence adjourned to 28.10.08. OA/TA No.: SR/1529/07 DATE: 28/10/08 PO on tour/Leave The case is reposted to 24/11/08 REGISTRAR/AR SR 1529 2007 dt:24.11.08 It is reported that the matter is pending before Hon'ble HC in CP. Hence adjourned to 30.12.08. SR 1529/2007 30.12.2008 It is reported by the counsel for the respondent bank that there is no settlement. It is also reported that Arunachala Sugar Mills is only a party in the WP in Hon'ble High Court. Counsel for respondent bank reported that no matter is pending before Hon'ble Madras High Court regarding this case. Counter already filed by the respondent bank. For written submissions of both sides and also for disposal matter is adjourned to 21.1.2009. No https://hcservices.ecourts.gov.in/hcservices/ further adjournment. SR 1529 2007 dt:21.1.09 At request adjourned to 13.2.09 for hearing OA/TA No.: SR-1529/07 DATE:13/2/09 PO on tour/Leave The case is reposted to 24/03/2009 REGISTRAR/AR SR 1529/2007 dt:24.3.09 Counsel for respondent bank present. No representation is made for appellant. For hearing and disposal finally and last chance on 31.3.2009. It is made clear that if no representation is made on that day, the SA will be dismissed for default. SR 1529 2007 dt:31.3.09 Written submissions filed by the petitioner. For written submissions of respondent bank by 1.4.2009. SR 1529/2007 dt:1.4.09 Written submissions filed by the petitioner. For written submissions of respondent bank by 1.4.2009. SR 1529/2007 dt:1.4.09 Written submissions filed by the bank. Written submissions of appellant already filed. Heard. For final orders on 5.5.2009. SA.Sr.No.1529 of 2007 05.05.2009 PO busy with Honourable Supreme Court Case SA No.50 of 2007, Honourable High Court Case OA.536 of 1998 & Honourable DRAT cases SA No.136 of 2007, hence reposted to 26.05.2009. PO SA No.133 of 2009 26.05.2009 [Sr.No.1529 of 2007] Concerned stenos are on leave, hence reposted to 29.05.2009." https://hcservices.ecourts.gov.in/hcservices/ 11.Moreover, the undated order in SA Sr No.1529 of 2007 in SIA No.170 of 2007 as seen from the file points out that the first respondent/Tribunal, on perusal of material records, has come to the conclusion that 'the writ petitioner/appellant has made out a case to condone the delay in the best interest of justice, equity, fair play and balance of convenience and condoned the delay and ordered the appeal to be numbered.' That apart, the first respondent/Tribunal, in S.A.No.133 of 2009 in the file Notings on 29.05.2009, has observed the following: "The case is fixed today for passing orders. Detailed order recorded vide fly sheets. This appeal is dismissed with no order as to cost due to circumstances of the case. Further, it is necessary to give breathing time to Appellant to approach Honourable Superior Forum, if she desire to do so, taking into consideration all the peculiar circumstances of the case. Hence, stay of taking further proceedings in pursuance of the impugned actions mentioned in the appeal under SARFAESI Act by the Respondent bank, is granted for a period of two weeks only from today. Let copy of the order be communicated to the parties concerned or to their Advocate immediately by the Registry." 12.It is pertinent to point out that the preamble portion of the order passed by the first respondent/Tribunal in S.A.No.133 of 2009 (Sr.No.1529 of 2007) dated 29.05.2009 which runs as follows: "This appeal is filed under Section 17 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, to call for the records culminating in the issue of the impugned notice dated 13.04.2007 under Section 13(4) of SARFAESI Act and set aside the same and to direct the Respondents to hand over possession of the secured assets which were taken possession of by the Respondents on 12.09.2007." 13.The pith and substance of the argument of the learned Senior Counsel for the petitioner is that the first respondent/Tribunal has not followed the principles of natural justice, equity and fair play since a reasonable opportunity of hearing to the petitioner was not afforded to him and this has caused material and substantial prejudice to her resulting in miscarriage of justice, requiring https://hcservices.ecourts.gov.in/hcservices/ interference by this Court. 14.We deem it appropriate to extract the relevant portion of Section 22(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 dealing with the procedure and powers of the Tribunal and the Appellate Tribunal which runs thus: "22.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 (5 of 1908), but shall be guided by the principle of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings." 15.Again Section 17(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 speaks of right to prefer an appeal to any person (including borrower), aggrieved by any of the measures referred to in sub- section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter, [may make an application along with such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken: [Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.] etc. 16.Importantly, Section 17(7) of the SARFAESI Act reads as follows: "17(7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder." 17.Moreover, Rule 11 of the Security Interest (Enforcement) Rules, 2002, under the caption Procedure for recovery of shortfall of secured debt, sub-clause(2) enjoins that 'the provisions of the Debts Recovery Tribunal (Procedure) Rules, 1993 made under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993), shall mutatis mutandis apply to any application filed by under sub- rule (1).' https://hcservices.ecourts.gov.in/hcservices/ 18.The term 'Natural Justice' stands for justice according to conscience. It is true that natural justice is not defined anywhere. It is used at time in the sense of 'Eternal Law, Natural Law and Natural Equity', the Latin equivalent is Jus Naturale and Lex Naturale. In Vionet V. Barett (1885) 55 LJ. QB 39 at page 45 it is observed that 'natural justice is the natural sense of what is right and wrong.' The two principles of natural justice are: (1)No person should sit in judgment in his own cause, or in any way in which he is interested nemo debet esse judex in propria causa. Since a Judge is likely to have a bias wherever he has an interest in the case, this is also called the Doctrine of Bias; (2) No one accused of any charge of likely to suffer any civil consequences, should be adjudged unless he has notice of the proceedings and he has been provided with an opportunity of put forwarding his case viz., Audi Alteram Partem. It is apt to quote the great philosopher Seneca's quotation (around 4 B C – A D 56) which is as follows: 'Whoever should adjudge anything, the other party not having been heard.. Even though he should decide fairly, it would scarcely be fair.' The concept of natural justice is nothing but principles of natural law which have not yet taken the shape of positive law ruling the people, and are followed, in unwritten or uncodified or unenacted form and is of general application. However, it has assumed the form of concrete law in due course. 19.At this juncture, we feel it apt to quote a judgment of the Honourable Apex Court in UMA NATH PANDEY AND OTHERS [2009 (2) CTC 185], the Honourable Apex Court has held as follows: "The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is *after all an approved rule of fair play...." https://hcservices.ecourts.gov.in/hcservices/ (emphasis supplied) 20.Suffice it to point out that the width and amplitude of the powers of Tribunal are to be gathered from the ingredients of Section 22(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, in addition to Rule 18 which enables the Tribunal to pass orders to secure the ends of justice. The Tribunal's powers under Section 22(2) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 are (except as mentioned in sub- clause (2)) wider than the powers of a civil Court and only limitation is that it should observe the principles of natural justice. Moreover, a Tribunal can regulate its own procedure and so long as the procedure adopted by it is not in violations of the provisions of the Act or Rules and is not opposed to the principles of natural justice and is not arbitrary or unreasonable, the same will not be interfered with. 21.It is true that as against the orders passed by the first respondent/Tribunal in S.A.No.133 of 2009 dated 29.05.2009, appeal can be preferred to the Appellate Tribunal as per Section 18 of SARFAESI Act and generally, this fast track procedure cannot be allowed to be derailed by taking recourse to the proceedings under Article 226 and 227 of the Constitution of India or by way of filing a suit. However, by means of supervisory jurisdiction under Article 227 of the Constitution of India, this Court is empowered to find out whether the first respondent/Tribunal has proceeded within its parameters of law. 22.Though this Court on 01.09.2009 has passed the order to the effect that 'it is not evident from the records submitted by the official that after condoning the delay, on what date the case was numbered as S.A.No.133/2009 and posted for final disposal to give an opportunity to both the counsel to address their argument. Hence the officer concerned is directed to submit his remarks along with the original records before 03.09.2009' and the same being communicated by the Registry to the first respondent/Tribunal in its letter C.O.No.349/2009 dated 01.09.2009, the Presiding Officer of the first respondent/Tribunal, in his report dated 02.09.2009, has not whispered on what date the case has been numbered as S.A.No.133 of 2009 after a condonation of delay and posted for final disposal to give an opportunity to both the counsel to address their arguments and the said report is conspicuously silent in this regard. 23.It transpires from the file in S.A.No.133 of 2009 (Sr.No.1529 of 2007) the order is mentioned as 'Dated this 26th Day of May, 2009' and later '26th' has been scored out and put as '29th' in blue ink. Likewise, after paragraph 12 of the said order in the sentence 'Dictated to the Stenographers, transcribed by him and after necessary corrections, signed and pronounced by me in the Open Court on this 26th Day of May, 2009' the date '26th' has been scored out and https://hcservices.ecourts.gov.in/hcservices/ below '29th' has been put in blue ink. 24.Even in the preamble portion of the order passed in S.A.No.133 of 2009 dated 29.05.2009, there is no reference to the names of the counsel who have appeared and addressed their arguments in regard to the disposal of the appeal. Therefore, this is a concrete case of the petitioner or his counsel has not been provided with a reasonable opportunity of oral hearing or oral submissions of the counsel, notwithstanding the submissions of written arguments filed on respective sides, in S.A.No.133 of 2009 on the file of the first respondent/Tribunal and the first respondent/Tribunal has not provided a reasonable opportunity of hearing to the petitioner and thereby has not adhered to the principles of natural justice, though it has to be guided by the principles of natural justice in following the same while adjudicating the controversies/disputes of the parties in matters pending before it and on this simple ground alone, we are inclined to interfere with the order of the first respondent/Tribunal in S.A.No.133 of 2009 dated 29.05.2009 and allow the writ petition by exercising the supervisory jurisdiction vested under Article 227 of the Constitution of India, since we come to the inevitable conclusion that the order of the first respondent/Tribunal dated 29.05.2009 passed in S.A.No.133 of 2009 stands vitiated, in the eye of law and accordingly set aside the same to prevent an aberration of justice and to promote substantial cause of justice. 25.For the foregoing reasons, we allow the Writ Petition without costs.