1THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.14708, 14709 & 14750 OF 2009 COMMON ORDER: (per Hon’ble Sri Justice A. Gopal Reddy) Since these three writ petitions, under Article 226 of the Constitution of India, raise a point of some significance in relation to the maintainability of O.A.Nos.43, 45 & 46 of 2004 respectively pending on the file of Debt Recovery Tribunal, Visakhapatnam against the petitioners, they are heard together and disposed of by this common order. Lakkavajjula S.S.S. Prasad, Proprietor of M/s. Visual Trans and Neons, Vijayawada, and his wife Lakkavajjula Vijaya Lakshmi filed these three writ petitions in their individual capacity and on behalf of the firm. The petitioner in W.P.No.14708 of 2009 was operating S.B. Account No.3388 at first respondent-Bank, Branch Office at Vijayawada and S.B Account No.1183 at Old City Branch, Hyderabad. He is also operating Account No.CC 94 in the name of M/s. Visual Trans and Neons, a proprietary concern, which is the petitioner in W.P.No.14750 of 2009. Whereas the petitioner in W.P.No.14709 of 2009 was allowed an overdraft facility bearing O.D. Account No.2002 with the first respondent- Bank. While so, the first respondent Bank filed O.A.No.43 of 2004 before the Debt Recovery Tribunal, Visakhapatnam against the petitioner in W.P.No.14708 of 2009 and the second respondent for issuance of certificate of recovery for Rs.72,73,574/- with present and future interest @ 18% p.a., with monthly rests from the date of application till the date of realization, alleging that the second respondent, who worked as officer loans, acted with mala fide intention and committed fraud in connivance with the petitioner and with some other customers during the year 2000 by crediting an amount of Rs.12,22,000/- to the account of the petitioner at Vijayawada Branch between December 1999 till June 2000, on various dates. Again on 3.07.2000 three demand loans were raised without any consideration, in the name of Smt. P. Vijaya, Sri L. Srinivas, Sri Sai Praneeth for Rs.8,00,000/- Rs.8,00,000/- and Rs.6,00,000/- respectively, from the Branch Office at Vijayawada and the said amounts were credited to the Branch Office at Old City, Hyderabad vide three Transfer Purchase Orders (TPO) Nos. 0778152/115/2000 dated 3.07.2000 for Rs.8,00,000/- ; 0778151/114/2000 dated 3.07.2000 for Rs.8,00,000/-; and 0778153/116/2000 dated 3.07.2000 for Rs.6,00,000/-. All the above TPO’s were credited to S.B. Account No.1183 standing in the name of Sri L.S.S.S. Prasad, the petitioner at Old City Branch, Hyderabad and the same were later withdrawn by him on 4.07.2000. Again on 3.04.2000 an amount of Rs.13,50,000/- was debited to the General Ledger of the FDR without any consideration, signed by the second respondent, at branch office at Vijayawada and credited to Old City Branch, Hyderabad, vide TPO NO.0778040/4/2000 dated 3.04.2000, and the same was withdrawn by the petitioner. Therefore, a registered notice was issued to the petitioner by the first respondent-Bank on 20.1.2003 calling upon him to pay Rs.47,72,000/-, which was credited to his account and withdrawn by him, and interest as applicable. Hence the first respondent filed the above O.A. for recovery of the said amount. The first respondent-Bank also filed O.A.No.45 of 2004 against the petitioner in W.P.No.14709 of 2009 and the second respondent for issuance of certificate of recovery for Rs.25,75,843/- with present and future interest @ 18% p.a., alleging that on 3.04.2000 an amount of Rs.16,89,943/- was debited to the General Ledger under the head of FDR and credited to OD Account No.2002 of the petitioner with the connivance of the second respondent. The petitioner having utilized the said amount has not paid the same. Therefore, the first respondent-Bank issued a demand notice on 20.01.2004 calling upon the petitioner to pay a sum of Rs.16,89,943/-, which was credited to her account and withdrawn by her, and interest as applicable. Hence the first respondent filed the above O.A. for recovery of the said amount. The first respondent-Bank further filed O.A.No.46 of 2004 against the petitioner viz., M/s. Visual Trans and Neons in W.P.No.14750 of 2009 and the second respondent for issuance of certificate of recovery for Rs.22,86,328/- with present and future interest @ 18% p.a., alleging that the proprietor of the petitioner-firm raised a Demand Loan without any consideration to the Bank in the name of the petitioner-firm for an amount of Rs.15,00,000/-. Against the said debit, two demand drafts bearing Nos.608733/861 dated 19.02.2000 for Rs.8,00,000/-; and D.D.No.608734/862 dated 19.02.2000 for Rs.7,00,000/- were issued in favour of M/s. Jai Corporation, payable at Hyderabad. Further Current Account No.192 was opened at Old City Branch, Hyderabad on 23.02.2000 in the name of M/s. Jai Corporation, purportedly owned by Mr. K. Prabhakar. The above D.Ds were credited in Current Account No.192 on 25.02.2000 and withdrawn by cash on 28.02.2000. The petitioner having utilized the said amount has not paid the same. Therefore, the first respondent-Bank issued demand notice on 20.01.2004 calling upon the petitioner-firm to pay a sum of Rs.15,00,000/-, which was credited to its account and withdrawn by the proprietor of the petitioner-firm, and interest as applicable. Hence the first respondent filed the above O.A. for recovery of the said amount. In all the above O.As., the petitioners filed written statements on 9.10.2004 and after the examination of the applicant’s witnesses, when the matter was coming up for the defence side evidence, the petitioners filed interlocutory applications in I.A.No.492 of 2008 in O.A.No.43 of 2004; I.A.No.493 of 2008 in O.A.No.45 of 2004; and I.A.No.494 of 2008 in O.A.No.46 of 2004 respectively, to frame a preliminary issue with regard to the maintainability of O.As., before the Tribunal and dispose of the same on merits by returning the O.As., filed by the first respondent- Bank for presentation before the proper Court for disposal. The Debt Recovery Tribunal Visakhapatnam, through its order dated 13.08.2008 dismissed the I.As stating that not only the employee but also customer involved in misappropriation of the amount in all the cases, and the funds might have been transferred through account of the customer. Therefore, the customer is liable to explain how the funds were deployed through his account. Since this is a liability from the employee as well as the customer, the O.As., are maintainable because the transactions are between the customer and the Bank, and they were done through the account of the customer. On dismissal of the above I.As, these three writ petitions are filed contending that in W.P.No.14750 of 2009 one of the cheques bearing No.L594881 for a sum of Rs.5,38,923/- dated 29.09.2000 was deposited into the account of the proprietor of the petitioner-firm for collection. Since the proceeds of the cheque have not been credited to his account, the proprietor of the petitioner-firm filed O.S.No.552 of 2001 on the file of the Senior Civil Judge, Vijayawada for recovery of the said amount with interest and obtained a decree on 12.08.2005, against which an appeal is pending. Similarly, a cheque bearing No.395981 for Rs.4,60,000/- drawn on Karur Vaisya Bank, Labbipet, Vijayawada was deposited by the wife of the proprietor of the petitioner-firm for collection for the purpose of putting in a Fixed Deposit in the first respondent-Bank for a period of three years. Though the said amount was collected on 3.06.2000, she failed to keep the same in Fixed Deposit. As the first respondent Bank failed to honor the request, she gave a notice on 2.07.2001 and again on 7.07.2001 and filed a suit in O.S.No.499 of 2001 for recovery of money and obtained a decree on 27.07.2007 against which an appeal is pending. Further the proprietor of the petitioner-firm furnished security deposit as fixed for Telecom Department in respect of the work contract allotted to him. The Department of Telecommunications has returned the FDRs after completion of work and the same were deposited with the first respondent-Bank for collection. Since the first respondent refused to re-pay the amount covered by the said Fixed Deposits, he compelled to approach the District Consumer Forum, Vijayawada in C.D.No.62 of 2002, which was allowed by the Consumer Forum directing the Bank to pay the amount covered by the Fixed Deposits with interest. The appeal preferred against the said order of the Consumer Forum was dismissed. The suit in O.S.No.489 of 2004 filed by the first respondent-Bank on the file of the III Additional Senior Civil Judge, Vijayawada, against the brother of the proprietor of the petitioner-firm, namely, Sri L.V. Subrahmanyam, for recovery of amount on the ground that he and the second respondent herein have fraudulently withdrew the amounts, was dismissed on contest, vide judgment and decree dated 01.01.2007. Further the suit in O.S.No.237 of 2001 filed by the proprietor of the petitioner-firm on the file of the First Senior Civil Judge, Vijayawada, for rendition of accounts of M/s. Visual Trans and Neons, was transferred to the Court of II Additional District Judge, Vijayawada and renumbered as O.S.No.89 of 2007, and the same is pending. In view of the same, the O.As., filed by the first respondent-Bank, on the basis of the entries made by the second respondent, who is the employee of the Bank, in the account of the proprietor of the firm, cannot be entertained. Since the issue to be decided in the applications is with respect to the fraud played by the employee of the first respondent-Bank, the applications for recovery of money are not maintainable before the Debt Recovery Tribunal for settlement of account of the Bank against its employee. The scope and ambit of the enquiry by the Tribunal is for speedy disposal of the cases in a summary manner. The word ‘Debt’ as referred to in Section 2(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short ‘the Recovery of Debts Act’) means any liability to pay the amounts in the course of its business transaction. In the absence of any liability to determine the amount, the jurisdiction of the Debt Recovery Tribunal cannot be invoked by the Bank, and the Tribunal renounced of its jurisdiction to go into the said aspect. Hence the proceedings are liable to be declared as not maintainable or can be transferred to a competent civil Court having jurisdiction over the matter. A counter affidavit has been filed by the first respondent-Bank opposing the averments made in the writ petitions contending that on dismissal of I.As., filed to return all the O.As., an appeal lies to the Debt Recovery Appellate Tribunal (DRAT), Channai. In view of the efficacious alternative remedy available to the petitioners, the present writ petitions cannot be entertained. The first respondent reiterated the contentions pleaded in the O.As., filed by it. But it has admitted various pleas mentioned by the Bank, the decree passed in the suits, and pendency of proceedings before the appellate Court. It is stated that the proprietor of the petitioner-firm having filed the written statement and participated in the proceedings, cross-examined the applicant’s witnesses, has to adduce his evidence for effective disposal of the O.As. When the proprietor of the petitioner-firm had hatched a big conspiracy in collusion with the officials of the first respondent-Bank, the bank lodged a complaint with the C.B.I., in which charge sheets have also been laid against the then Bank Manager Sri P.V.V.S.V. Prasad, the second respondent in these writ petitions and one Sri M.S.B. Kumar, before the Special Court, C.B.I., Visakhapatnam. On noticing the fraud, necessary notices were issued to the petitioners disclosing the amounts credited to their account, which were withdrawn by them fraudulently, and the above O.As., were filed. Once all the amounts lying in the account of the proprietor of the petitioner-firm were withdrawn by himself, the debt arising thereof is liable to be restituted and reimbursed to the first respondent-Bank. Therefore, the Bank rightly invoked the jurisdiction of the Debt Recovery Tribunal for recovery of the amounts, and accordingly prayed for dismissal of the writ petitions. Sri P.R. Prasad, learned counsel for the petitioners strenuously contended that the limited jurisdiction conferred on the Tribunal cannot be enlarged to decided fraud, in view of the fact that fraud had been played by the employee of the first respondent-Bank, i.e., the second respondent. Such power is the exclusive jurisdiction of the Civil Court but not by the Debt Recovery Tribunal. The learned counsel placed reliance on the Recovery of Debts Act and submits that Section 17 of the Recovery of Debts Act confers jurisdiction on the Tribunal to entertain and decide the applications from the Banks and Financial Institutions for recovery of debts due to such Banks and Financial Institutions. Section 19 provides the procedure for filing an application befoe the Tribunal for recovery of a debt. Sub-section (4) of Section 19 provides that the Tribunal may, after giving the applicant and the defendant an opportunity of being heard, shall pass interim order or final order including the order for payment of interest within six months from the date of receipt of the application. He further relied upon the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the SRFAESI Act’) and submitted that Section 2(ha) of the SRFAESI Act defines debt, which shall have the meaning assigned in Clause (g) of Section 2 of the Recovery of Debts Act. Section 2(g) of the Recovery of Debts Act defines a debt, which is legally recoverable on the date of application. The learned counsel for the petitioners further submits that since what is the amount due to the Bank is still to be decided, it cannot be said that the debt subsisted and is legally recoverable on the date of the applications. In view of the same, filing of O.As. before the Debt Recovery Tribunal cannot be entertained and the same are liable to be returned for presenting the same before a proper forum. In support of his contention he placed reliance upon the judgment of Gujarat High Court reported in Bank of India v. Vijay Ramniklal Kapadia[1], and of the Bombay High Court in Krishna Filaments Ltd. V. Industrial Development Bank of India[2]. To buttress his contention that the scope and ambit of recovery of debts Act is to have a speedy recovery, the learned counsel placed reliance upon the judgment of the Supreme Court in Nahar Industrial Enterprises ltd. V. Hong Kong & Shanghai Banking Corporation[3] wherein it has been held that the Tribunal constituted under the Recovery of Debts Act is not a civil Court and it cannot pass a decree. It can only issue a recovery certificate and entire focus of the proceedings before the Debt Recovery Tribunal centres for legally recoverable dues of the Bank. Further, the claim by the Bank must relate to a lending/borrowing transaction between the Bank or a financial institution and the borrower. The liabilities and rights of the parties have not been created under the Act, but only a forum has been created for recovery of the amounts which are legally recoverable. By placing reliance on another judgment of the Supreme Court in Union of India v. Delhi High Court Bar Association[4], the learned counsel contended that under the Rules framed under the Recovery of Debts Act, the Tribunal can decide the cases on the basis of the documents and affidavits filed before it for realization of money, or the procedure laid down by it, and must be guided by the principles of natural justice and it is not bound by the provisions of the Code of Civil Procedure. In view of the same, the petitioners cannot be deprived of an opportunity of wealthy cross-examination. But the Tribunal intended to decide the issue only on the basis of the affidavit. In view of the same, it is a fit case to reject the O.As. filed by the Bank permitting it to institute suits before the civil Court. He however fairly conceded that the O.As. cannot be transferred to the civil Court as initially prayed by the petitioners, in view of the decision rendered by the Supreme Court in Nahar Industrial Enterprises case (3 supra). Therefore, W.P.M.P.Nos.22348, 22346 and 22347 of 2009 filed by the petitioners for amendment of prayer in the writ petitions for setting aside the order passed in I.A.Nos.492, 493 and 494 of 2008 have to be allowed to that extent rejecting the prayer for transfer of O.As., to a competent civil Court at Vijayawada. Per contra, the learned counsel for the first respondent-Bank would contend that the petitioners having filed a written statement and having cross-examined the applicant’s witnesses, it is not open for them to contend that the Tribunal will decide the O.As., only on the basis of the affidavits filed by the witnesses, and they will be deprived of the opportunity of cross-examination. The petitioners, who are defendants in the said O.As., participated for four years in the proceedings and when the O.As., were coming up for their evidence, they have filed the present I.As. for rejection of plaint, which were rightly rejected by the lower Court in view of the law declared by the Supreme Court in United Bank of India, v. Debts Recovery Tribunal[5]. In the light of the above rival submissions, the question that arises for consideration in these writ petitions is – “Whether the claim of the first respondent-Bank can be referred to as ‘Debt’ as defined under Section 2(g) of the Recovery of Debts Act and for due recovery of the same, the applications filed under Section 17 of the Recovery of Debts Act are maintainable or not.” Before we proceed to answer the question posed by ourselves, it is apt to quote the meaning of ‘Debt’ as defined under Section 2(g) of the Recovery of Debts Act, which reads as under: “Section 2:- In this Act, unless the context otherwise requires, - (g) ‘Debt’ means any liability (inclusive of interest) which is alleged as due from any person by a bank or a financial institution or by a consortium of banks of financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or whether payable under a decree or order of any civil Court or otherwise and subsisting on and legally recoverable on the date of the application.” A learned Single Judge of Gujarat High Court in Bank of India’s case (1 supra), after extracting the definition of ‘Debt’ held as under: “On a plain reading of the above definition, it is clear that any liability which is alleged and due from any person by a bank during the course of any business activity undertaken by it in cash or otherwise, whether secured or unsecured, or whether payable under a decree or an order of any civil Court or otherwise, and subsisting on and legally recoverable on the date of the application is ‘debt’. Thus any liability due from any person by a bank during the course of any business activity undertaken by the bank will constitute a “debt”. Therefore, a fraud committed by an employee of the Bank cannot or should not be construed a “debt”. Misappropriation of the amount of the Bank by its employee and recovery thereof by way of suit can never be construed as a “debt” and accordingly allowed the appeal.” A Division Bench of Bombay High Court in Krishna Filaments Limited case (2 supra), held as under. “The suit as such filed is not for recovery of any debt due to the financial institution, but the transaction has arisen during the course of a business activity, which is undertaken under a law for the time being in force. If the phrase “any liability claimed by a bank or a financial institution” is read to mean any claim by such a body even for others, then in that case all sorts of claims by such bodies would get covered under this definition.” Recently the Supreme Court in Nahar Industrial Enterprises case (3 supra), while dealing with the permissibility of transfer of suit from the civil Court to Debt Recovery Tribunal as a counter claim before the Debt Recovery Tribunal, framed the issues arising for consideration as to whether the High Court/Supreme Court has the power to transfer a suit from a civil Court to Debt Recovery Tribunal, and while summarizing the scheme of the Act and the remedy provided for due recovery of amount under the above Act, upheld the contention that the power to transfer vested in the High Court or in the Supreme Court being confined under Sections 22, 23, 24 and 25 of the Code of Civil Procedure, cannot be applied for the purpose of transferring a civil suit to Debt Recovery Tribunal as the latter is not a civil Court. But however held as under. “The Debt Recovery Tribunal cannot pass a decree. It can issue only recovery certificates. [See Sections 19(2) and 19(22) of the Act]. The power of the Tribunal to grant interim order is attenuated with circumspection. [See Dataware Design Labs (P) Ltd., v SBI {(2005) 127 Comp Cas 176 (Ker)}, Comp Cas at p.184]. Concededly in the proceeding before the Debts Recovery Tribunal detailed examination, cross- examinations, provisions of the Evidence Act as also application of other provisions of the Code of Civil Procedure like interrogatories, discoveries of documents and admission need not be gone into. Taking recourse to such proceedings would be an exception. Entire focus of the proceedings before the Debts Recovery Tribunal centers round the legally recoverable dues of the bank.” Even in respect of set off or counterclaim, the Supreme Court, at paragraph 98, was of the following view – “The claim petition filed by the bank or financial institution must relate to a lending/borrowing transaction between the Bank or the financial institution and the borrower.” At Paragraph 118 the Supreme Court emphasized thus: “The liabilities and rights of the parties have not been created under the Act. Only a new forum has been created. The Banks and the financial institutions cannot approach the Tribunal unless the debt has become due. In such a contingency, indisputably a civil suit would lie. There is a possibility that the debtor may file preemptive suits and obtain orders of injunction but the same alone in our opinion, by itself cannot be held to be a ground to completely oust the jurisdiction of the civil Court in the teeth of Section 19 of the Code. Recourse to the other provisions of the Code will have to be resorted to for redressal of his individual grievances.” But nowhere it is stated by the Supreme Court that the jurisdiction of the Debt Recovery Tribunal is barred to entertain any debt, which arose during the course of any business activity undertaken by the bank. In view of the same, reliance placed by the learned counsel for the petitioners on the judgments in Bank of India’s case (1 supra) and Nahar Industrial Enterprises case (3 supra), mismatch to the facts of the present case. The Supreme Court in Union of India v. Delhi High Court Bar Association (4 supra) categorically held at paragraph 23 as under. “The Tribunal has the power to require any particular fact to be proved by affidavit, or it may order that the affidavit of any witness may be read at the hearing. While passing such an order, it must record sufficient reasons for the same. The proviso to Rule 12 (6) would certainly apply only where the Tribunal chooses to issue a direction on its own, for any particular fact to be proved by affidavit or the affidavit of a witness being read at the hearing. The said proviso refers to the desire of an applicant or a defendant for production of a witness for cross- examination. In the setting in which the said proviso occurs, it would appear to us that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to be cross-examined can legitimately arise. It is at that time,