THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3231 of 2009 (Dated: 09-11-2009) Between: M/s. ING Vysya Bank Ltd., rep. by Regional Recovery Manager Regional Office, Himayath Nagar, Hyderabad. …Petitioner/Respondent No.1 A n d M/s.Neeraj Construction rep.by Mr.G.Siva Prasada Reddy S/o G.K.Reddy Srinagar Colony, Hyderabad and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3231 of 2009 ORDER: This revision is directed against the order dated 11.5.2009 passed in I.A.No.320 of 2003 in O.S.No.537 of 1999 on the file of the Debt Recovery Tribunal, Hyderabad, whereby and whereunder, the learned Presiding Officer of the Debt Recovery Tribunal dismissed the application filed by the respondents 1 to 3-defendants 1 to 3 under Section 22(2)H of Debt Recovery Tribunal Act to condone delay of 3 years, 2 months and 6 days, i.e., 1134 days in filing the written statement with a plea of set-off. 2. The petitioner is the applicant in O.A.No.537 of 1999. Respondents herein are the defendants in the said suit. The case has a chequred career. This is the 3rd journey of the parties to this Court on the orders passed in interlocutory applications. The petitioner-applicant initially filed O.A.No.1305 of 1996 on the file of Debt Recovery Tribunal at Bangalore against the respondents herein for recovery of a sum of Rs.1,52,98,609/- with interest at 25.25% per annum compounded quarterly from 15.12.1996 till the date of realization apart from ancillary reliefs with regard to the sale of shares pledged as security for the loan. 3. Defendants 1 to 3 filed written statement on 18.3.1997. In the written statement, they made a counter claim. Subsequently, the O.A came to be transferred to the file of Debt Recovery Tribunal, Hyderabad (for short, `the tribunal’) and renumbered as O.A.No.537 of 1999. The defendants 1 and 2 filed I.A.No.314 of 2000 in O.A.No.537 of 1999, on the file of the Debt Recovery Tribunal, Hyderabad, to treat the claim of set off in their written statement as a set off under Section 19(6) of RDDBFI Act and adjudicate the same along with the claim of the respondent Bank. The said I.A was dismissed on 25.08.2000. Aggrieved by the same, the 2nd respondent-2nd defendant filed C.R.P.4733 of 2000. The said C.R.P along with another C.R.P.No.4732 of 2000 came to be disposed of with a direction that the counter claim must be deemed to have been made on the date of the presentation of the above said I.A. For better appreciation, I may refer the relevant portion of the common order passed in C.R.P.No.4732 of 2000 and C.r.P.No.4733 of 2000, which reads as hereunder: “ Apart from the question of a counter claim, if the petitioner herein really had any claim to recover any amount from the first respondent bank, nothing prevented the petitioner from filing a suit for recovery of such an amount from the first respondent bank. The fact that earlier the Act did not provide for the adjudication of the counter claims by the defendants, did not prohibit the petitioner herein in seeking adjudication before the ordinary civil Courts insofar as claim for recovery of money is concerned. In the circumstances, I am of the opinion that the present civil revision petition No.4732 of 2000 can be disposed of with a direction to the Tribunal to adjudicate upon the counter claim made by the petitioner, of course, on payment of appropriate court fee and compliance with the other procedural requirements in this regard. However, it is open for the respondents to raise the plea of limitation if any in such counter claim and for the purpose of limitation, the counter claim must be deemed to have been made on the date of presentation of the above said I.A. Coming to the Civil Revision Petition No.4733 of 2000, it is a claim for set off by the petitioner-defendant. The issue involved in this revision is substantially the same as in the above said revision. Therefore, the present civil revision petition is disposed of with a similar direction as is given in the above said revision.” 4. Thereafter, the respondents 1 to 3-defendants 1 to 3 filed I.A.No.320 of 2003 in O.A.No.537 of 1999 to condone delay of 1134 days in filing the written statement with a plea of Set-off. The learned Presiding Officer of the tribunal, by order dated 08.6.2005, allowed the application. Thereupon, the respondent-Bank in I.A.No.320 of 2003 in O.A.No.537 of 1999 filed C.R.P.305 of 2007. The said C.R.P came to be allowed by order dated 11.2.2009. The order passed in the C.R.P.No.305 of 2007 reads as hereunder: “ Heard and perused the impugned order. A perusal of the impugned order goes to show that in the earlier C.R.P Nos.4732 and 4733 of 2000 this Court directed the Debt Recovery Tribunal to adjudicate upon the counter claim made by the petitioner, on payment of appropriate court fee and on compliance of other procedural requirements in that regard and further observed that respondents can raise the plea of limitation, if any in such counter claim for the purpose of limitation, the counter claim must be deemed to have been made on the date of presentation of the I.A. therein. But the Presiding Officer of the Debt Recovery Tribunal, except reproducing the order in the C.R.P., has not given any independent reasons to allow the impugned application, which is unwarranted. Hence, I feel that it is a matter to be remanded to the tribunal for passing appropriate orders with regard to limitation while condoning the delay, within a period of 4 weeks from the date of receipt of a copy of this order. In the result, this civil revision petition is allowed accordingly and the matter is remanded to the Debt Recovery Tribunal, Hyderabad, to pass appropriate orders, in the light of the above observations, within a period of 4 weeks from the date of receipt of a copy of this order. No costs.” 5. On remand, the learned Presiding Officer of the tribunal heard the parties and proceeded to dismiss the I.A 320 of 2003 with an observation that the said petition is redundant as there is no delay in pleading set off. 6. Aggrieved by certain observations made therein, the applicant in O.A.No.537 of 1999 has filed this revision under Article 226 of the Constitution of India. 7. While ordering notice before admission hearing, interim stay has been granted on 4.8.2009. Respondents 1 to 3-defendants 1 to 3 entered appearance through a counsel. 8. When the C.R.P came up for admission hearing, with the consent of the counsel appearing for the parties, it is taken up for final disposal. 9. Heard learned counsel appearing for the petitioner-applicant and the respondents-defendants. 10. Learned counsel appearing for the petitioner-applicant submits that the tribunal has thoroughly misread the findings recorded by this Court in C.R.P.Nos.4732 and 4733 of 2000 and proceeded to make certain observations which are contrary to the material brought on record. A further submission has been made that the common order passed by this Court in C.R.P.Nos.4732 and 4733 of 2000 is very clear that the counter claim made by the defendants 1 to 3 must be deemed to have been made on the date of presentation of the I.A.No.314 of 2000. Learned counsel laid much emphasis on the observations made by this Court in the above referred two revisions. 11. Per contra, learned counsel appearing for the defendants 1 to 3 submits that this Court in C.R.P.No.305 of 2007 has directed the tribunal to consider the I.A., independently, and therefore, the tribunal considered the contentions of the parties independently and recorded a finding that the delay condonation petition is not necessary and such a finding does not warrant interference by this Court in exercise of powers under Article 226 of the Constitution of India. 12. Let me first examine how the respondents-defendants understood the order passed by this Court in C.R.P.No.4732 and 4733 of 2000. The relevant portion of the order has already been extracted supra. The order does not give any ambiguity with regard to the date on which the counter claim made by defendants is deemed to have been presented. At the cost of repetition, I may make it clear that a categorical finding has been recorded in C.R.P.Nos.4732 and 4733 of 2000 that the counter claim of the defendants must be deemed to have been made on the date of presentation of the said I.A. The respondents-defendants, in support of their application, in para 7 of the affidavit stated as hereunder: “ I submit that Applicant Bank filed O.A.1305/96 on16.12.96. I filed written statement on 18.3.1997. My plea for set off would have been made within the period of limitation had it been entertained when I filed W.S. Cause of action arose 16-4-94, when the applicant bank had transferred the shares to themselves, and on 16-12-96 when the Applicant Bank filed the OA 1304 at Bangalore. Since DRT, Bangalore held that the plea of set-off was incompetent at that time, I could not proceed with the same in the O.A. After the Act was amended in Jan, 2000 I filed I.A.314/2000 on 21-06-2000 to entertain my plea of set off in Written statement filed by me already on 18.3.97. This Hon’ble Tribunal dismissed my IA 314/2000 on 25-8-2000. I filed C.R.P 4733/2000 before the Hon’ble High Court under Art 227 of Constitution of India. The Hon’ble High Court disposed of the same on 21.02.2002.” 13. The contention of the respondents-defendants with regard to the plea of limitation on counter claim is contrary to the findings recorded by this Court in C.R.P.Nos.4732 and 4733 of 2000. The learned Presiding Officer of the tribunal proceeded; as if, this Court in the C.R.P Nos.4732 and 4733 of 2000 made an observation that the counter claim of the defendants is deemed to have been made on the date of filing of the written statement. The whole reasoning assigned by the learned Presiding Officer of the tribunal is because of his misconception of the observations made by this Court in C.R.P.Nos.4732 and 4733 of 2000. 14. In the result, the Civil Revision Petition is allowed setting aside the order dated 11.5.2009 passed in I.A.No.320 of 2003 in O.A.No.537 of 1999 on the file of Debt Recovery Tribunal, Hyderabad and consequently, I.A.320 of 2003 is remanded for fresh disposal in accordance with law, after giving an opportunity to both the parties. No order as to costs. ______________________________ B.SESHASAYANA REDDY, J Dt.09-11-2009 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3231 of 2009 (Dated : 09-11-2009)