1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 6846 OF 2002 MADHU MALTI FARMS & ORS. .. PETITIONERS VS. THE STATE BANK OF INDIA & ORS. .. RESPONDENTS Mr. R. P. Behre for petitioners Mr. A.G. Damle for R-1 CORAM: SMT. RANJANA DESAI & SMT. R.S. DALVI, JJ. DATE: 11-1-2008 P.C. . The 1st petitioner is a partnership firm and claims to carry on business of poultry. Petitioners 2 and 3 are it’s partners. 2. In this petition the petitioners have challenged the order dated 19/8/02 passed below Exh.-25 in Original Application No. 671/P/2001 by the Debt Recovery Tribunal, Pune ("DRT" for short). A copy of the order is annexed to the petition at Exhibit-A. In short the challenge is to the recovery certificate issued by the DRT Pune, in the sum of Rs.33,85,583.25. 2 3. The case of the petitioners in short appears to be that recovery certificate shows one Shri Vijay Sali as having appeared for the petitioners when in fact Shri Vijay Sali was never appearing for the petitioners in DRT, Pune. Learned counsel for the petitioners, pointed out that Shri Sali had only filed appearance for the petitioners in DRT Bombay. Prior to the proceedings being transferred to DRT Pune, he had filed written statement for the petitioners. Affidavit of Advocate Vijay Sali is filed in this writ petition wherein he has stated that he had not appeared for the petitioners in DRT Pune. 4. On 25/2/03 this petition was not on board. On the request of learned counsel for the petitioners it appears to have been taken up on board urgently. Notice was issued to the respondents. Notice was made returnable on 25/3/03. In the meanwhile ad-interim ex-parte relief in terms of prayer clause (c) was granted. We may quote prayer clause (c) here. "(c) Pending the hearing and final disposal of the said writ petition, the 3 implementation, operation and the execution of the order passed below Exh.25 in original application No. 671/P/2001 dtd. 19th August, 2002 passed by the Ld. Presiding Officer DRT Pune may kindly be stayed." Thus recovery certificate in the sum of Rs.33,25,577.52 was stayed on 25/2/03. 5. Respondents 2, 3 and 4 are guarantors. Our Farad shows that notice issued to respondent 2 returned unserved with bailiff’s remark "Firm not existed at given address". Notices issued to respondents 3 and 4 returned unserved with bailiff’s remark "Left the Bunglow". Farad noting further states that notice issued to respondent 1 i.e. State Bank of India is served at Bombay address and at Pune address. These endorsements on the Farad are dated 29/9/06. 6. It is surprising that from 25/2/03 i.e. the date on which recovery certificate was stayed till 29/9/06 the office should not think it fit to place this matter on board. This petition then appeared on the board of learned Single Judge on 6/6/07. 4 Obviously looking to the fact that recovery certificate is stayed, the learned Single Judge directed that the matter should be placed for admission on 12/6/07 as it is. 7. On 12/6/07 learned counsel for the petitioner appeared in the court. Though respondent bank was served at it’s adress at Bombay as well as at Pune, none represented the bank before the learned Single Judge. Attention of the learned Single Judge appears to have been drawn to Sub-Rule (3) of Rule 18 of Chapter XIV of the Appellate Side Rules. Learned Single Judge, therefore, observed that this writ petition pertains to the jurisdiction of the Division Bench. Office was directed to act accordingly. 8. Further noting on Farad dated 11/7/07 reiterates that the State Bank bas been served. It states that respondents 2, 3 and 4 have not been served. It reiterates that the advocate for the petitioner has not removed the office objection namely, impugned order is not attested as "true copy". 9. On 29/9/07, Division Bench of this court passed 5 the following order: . "The petitioners are directed to furnish the address of unserved respondents and take steps for service on them within 2 weeks. The petitioners are also directed to remove all other office objections within 2 weeks. If such steps are taken, issue notice to the unserved respondents, returnable after 8 weeks. If steps are not taken or if the office objections are not removed within the stipulated time, petition against the unserved respondents shall stand dismissed for non-prosecution." 10. On 10th October, 2008 learned counsel for the petitioners made a statement that he wants to delete respondents 2 to 4 as he is not claiming any relief against them and respondents 2 to 4 were deleted. 11. It is important to note that throughout this period the recovery certificate was stayed. On the oral direction issued by this court that all old 6 matters should be placed before it this writ petition appeared on the board of this court on 8/1/2008 under the caption "For orders". Noticing that the recovery certificate was stayed, we adjourned the petition to 11/1/08, after noting that nobody was representing the State Bank of India. We expressed that officer of the State Bank of India should remain present in the court on 11th January, 2008. Pursuant to this today Shri Damle, learned counsel is representing the State Bank of India. We express our extreme displeasure at the manner in which this matter has proceeded in the office of this court. 12. We direct the Registrar (Judicial) to institute an inquiry to find out as to why this petition was never placed on board right from 25/2/03 till 6/6/07. We have also noticed that in several other matters where ex-parte orders are passed matters are not placed on board. In this connection we may refer to Writ Petition No. 8793 of 2003 where also State Bank of India is a party respondent. An interim order staying recovery proceedings was passed in this petition on 2/12/03. It operated for a period of 4 years. Bhatta was not paid by the petitioners, therein. It was 7 vacated by this court on 8/1/08. Registrar (Judicial) shall, therefore, conduct the necessary enquiry to find out who is responsible for this and place the report before us so that it can be placed before the Hon’ble the Chief Justice for appropriate orders. Report be placed before us within six weeks from today. 13. We also express our displeasure at the manner in which the State Bank of India has handled this matter. Notice was served on the State Bank of India way back. Farad noting dated 29/9/07 states that State Bank of India was served at Bombay and also at it’s Pune office. Yet State Bank of India never thought it fit to approach this court for vacating the stay order. 14. Banks must bear in mind that they deal with public funds. They cannot be so casual in their approach. We direct office to send a copy of this order to the Head Office of the State Bank of India and its office of the concerned branch at Pune for action, if necessary and for future guidance. 15. Coming to the merits of the case, the petition, in our opinion is not maintainable. 8 There is an alternative remedy provided under Section 20 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993. The petitioners, therefore, ought to have resorted to the alternative remedy. In the circumstances, the present petition cannot be entertained. The interim order will have to be vacated. 16. Mr. Damle has tendered in the court the order dated 3/7/02 passed by the Debt Recovery Tribunal which runs into several pages. The petitioners ought to have filed a copy of this order in the present proceedings. Only copy of the recovery certificate that too not attested as true copy was filed. We refuse to believe that the petitioners did not know about this order. The representatives of the petitioners are present in the court. They are instructing Mr. Behre, learned counsel for the petitioners. They do not appear to be rustic persons who do not know how the proceedings are conducted in the court and the importance of the judgment on the basis of which recovery certificate is issued. We depricate the conduct of the petitioners. 17. The petition is dismissed. Interim order is 9 vacated. 18. Office is directed to forthwith address a letter to the D.R.T. Pune, informing it that interim order passed on 25/2/03 stands vacated. JUDGE JUDGE