Case: Eureka Forbes Limited Vs. Allahabad Bank

Appellant is a company duly incorporated under the provisions of the Companies Act, 1956, while Respondent No. 1, Allahabad Bank is a body constituted under the Banking Companies (Acquisition and Transport of Undertakings) Act, 1976. Respondent No. 3 in the present appeal is a proprietorship firm of Respondent No. 2. The appellant company is stated to have entered into an agreement on 16th August, 1983 with respondent Nos. 2 & 3, granting licence in their favour to use premises at Jainkunj at Goragachha Road, Kolkata (hereinafter referred to as `the premises) for a consideration of Rs.12,000/- payable to the appellant, along with the plant and machinery as well as their trade mark "OSBOURNE". It is further the case of the appellant that they had no knowledge of the fact that, respondent Nos. 2 & 3 had availed certain cash credit facility and had hypothecated their raw materials, semi-finished and finished products to Bank. However, on or about 28th February, 1987, the said respondents had requested the appellant to take over the possession of the said premises along with the closing stock lying therein. This was so requested because respondent Nos. 2 & 3 had not paid the licence fee for the use and occupation of the premises, goods etc. as agreed and further vide letter dated 23rd July, 1987, they stated that appellant could sell the stocks as well as lathe machine lying in the factory premises and adjust the sale proceeds thereof towards the arrears of licence fee. After taking possession of the factory premises, the appellant prepared an inventory of the stock in possession and as alleged by them, they had no knowledge that these stocks had been hypothecated by the said respondents in favour of the Bank. The letter dated 7th August, 1987 has been annexed by the appellant in support of such averment. It appears from the record that the respondent Bank vide its letter dated 21st August, 1987 wrote to respondent Nos. 2 & 3 raising an issue as to how the possession of the stocks and machinery was given to the appellant. This was done in response to the letter of respondent Nos. 2 & 3 dated 18th August, 1987 and copy thereof was sent to the appellant while referring to the letter dated 7th August, 1987 addressed by the appellants to the other respondents. It will be useful to reproduce the relevant extract of the letter dated 21st August, 1987 which reads asacknowledge receipt of your letter dated 18.8.1987 along with enclosures.In this regard we fail to understand as to how you have permitted M/s Eureka Forbes Limited to take possession of your factory at 1, Goragacha Road, Kolkata - 700 043, the stocks and machineries of which are already hypothecated to us. And again you are advising us not to visit the factory at the moment which we are requesting you to do the same reputedly. Since April, 1986, you are also not submitting the stock statement and you have virtually stopped all your banking operations through us. Now we observe from the stock statement forwarded to us as enclosure that there are good amount of stock still lying at the factory.To the above letter, the appellant responded vide its reply dated 23rd September, 1987 saying that the factory belongs to them and they had given the same on licence to respondent No. 3 and when the possession was handed over back to them certain stocks and machinery belonging to the respondent No. 3 were lying in the factory. They had made a specific request that these should be sold and adjusted towards the licence fee and the surplus money, if any, should be refunded to them. The respondent Bank claimed that they had a charge over the movable assets, in particular, the CTC machine which appellant had disposed off. For the sale of CTC machine, they had issued an advertisement on 12th March, 1988 and the same was sold for Rs.1,48,975/-.5. The Bank filed a suit in the District Court at Alipore against the present appellant and respondent Nos. 2 & 3 claiming a sum of Rs.22,11,618.62. In this suit, the present appellant filed a written statement making a preliminary objection that there was no privity of contract between the Bank and the present appellant. That it was not a borrower of the Bank and had no dealings with them as such, the suit was barred for misjoinder of parties and in fact no suit could lie against the present appellant. The plea of suit being barred by time, the principles of estoppel, waiver and acquiescence was also taken. It was stated on merits, that neither they were aware of any transaction between plaintiff Bank and respondent Nos. 2 & 3 nor of any charge over the machinery and equipment etc. The appellant denied the allegations made against them. Most of the paragraphs were denied for want of knowledge and emphasis was laid only on the above stated two averments. Appellant also averred that the Bank was trying to cover up lapses of its own officials by pressurizing them. It could not have accepted, as security, the factory or machinery as it was owned by the appellant and it had not given any consent for that purpose. This suit came to be transferred after the provisions of the Recovery Act came into force in the year 1994. Upon transfer it was numbered as T.A. No. 15/1994. The appellant was served with a notice from the Tribunal and it appointed one M/s Mallick and Palit as its Advocate to appear and pursue the case on its behalf. The appellant did not appear before the Tribunal and after some time the proceedings were carried on in their absence. The evidence was recorded and finally an ex-parte judgment was passed against the appellant on 15th June, 1995. In furtherance to the ex-parte judgment, a Recovery Certificate No. 48 of 1995 was issued by the competent authority under the provisions of the Act on 30th June, 1995. The appellant claims to have taken steps for setting aside the ex-parte judgment. They filed a writ petition before the High Court of Kolkata, (being Writ Petition No. 1804 of 1995), challenging the constitutional validity of the provisions of the Recovery Act and also prayed for stay of execution of the ex-parte judgment dated 15th June, 1995. An interim order dated 3rd November, 1995 was passed in favour of the appellant directing that the execution proceedings should go on, however no final order be passed without the leave of the Court. The Tribunal vide its Order dated 4th March, 1996, appointed a receiver to prepare an inventory of hypothecated goods and a warrant of attachment was also issued. The High Court of Kolkata, again on application filed by the appellant directed the receiver only to make inventory of the goods and not to take any further action. During the pendency of these proceedings, the Recovery Officer upon further application by the respondent Bank, directed the receiver to make inventory of all the properties vide its Order dated 17th August, 1996. This order was challenged by the appellant before the Calcutta High Court which stayed further proceedings.6. According to the appellant, it was advised to initiate proceedings to set aside the ex-parte decree and Recovery Certificate and hence an application was filed before the Tribunal for recalling the ex-parte order. Along with this, an application for condonation of delay was also filed. Consequent upon the dismissal of the application for condonation of delay, the appellant filed an appeal before the Debt Recovery Appellate Tribunal (for short the `Appellate Tribunal) against the order dated 19th August, 1999, passed by the Tribunal. The same was also dismissed by the Appellate Tribunal vide its judgment dated 1st June, 2001. This again was assailed before the High Court under Article 227 of the Constitution of India. The same was also dismissed by the High Court of Kolkata vide Order dated 28th November, 2001. Still unsatisfied, the appellant filed a Special Leave Petition before this Court, being SLP (C) No. 7883 of 2002 against the Order of the High Court of Kolkata which was dismissed as withdrawn by this Court vide Order dated 26th April, 2002. In other words, the Order of the Tribunal declining to set aside the ex-parte decree attained finality. The Revision Petition filed by the appellant before the High Court of Kolkata also came to be dismissed finally vide Order dated 2nd April, 2003. In furtherance to its zeal to somehow get the ex-parte decree set aside, the appellant preferred an appeal before the Appellate Tribunal against the order of the Tribunal dated 15th June, 1995. The Order dated 16th April, 2004 of the Appellate Tribunal was challenged before the learned Single Judge of the High Court. In those proceedings, an application for amendment to bring the subsequent events on record, was filed which was dismissed by the learned Single Judge vide Order dated 11th June, 2004. Against this Order, an appeal was filed before the Division Bench of Kolkata High Court which also met the same fate. However, the Division Bench while dismissing the appeal observed that the Order passed by the learned Single Judge was correct in law but it would not prevent the appellant from resorting to any remedy which is available to it in accordance with law.7. In the Appeal preferred by the appellant, the Appellate Tribunal vide its Order dated 15th July, 2003 directed the appellant to deposit a sum of Rs.5,00,000/- as condition precedent for entertaining the said appeal. This sum was deposited and a reply affidavit to this application was filed on behalf of the Bank. Vide Order dated 16th April, 2004, the Appellate Tribunal dismissed the application for condonation of delay in filing the appeal. The order dated 16th April, 2004 of the Appellate Tribunal was challenged in a Civil Revision Application before the High Court of Kolkata. The High Court vide its interim Order dated 11th June, 2004 directed the appellant to deposit a sum of Rs.15,54,118.62 as a condition for hearing the appeal and the same was deposited. This application was against the interim order and the appeal remained pending before the Chairperson of the Appellate Tribunal. Finally the appeal was allowed vide Order dated 28th December, 2006 by the Appellate Tribunal. While setting aside the ex-parte decree the Appellate Tribunal held assaid all that, to my mind, the net result is, the ex-parte decree in question passed against the appellant, Eureka Forbes Ltd. by the Debts Recovery Tribunal, Calcutta, is without jurisdiction and therefore, the appeal must succeed. Consequently, the entire sum of money appropriated by the respondent-bank as per orders of the Honble Court in C.O. No. 1568 of 2004 will be refundable together with interest at the lending rate also as per the said orders of the Honble Court.Accordingly, the decree in question dated 15th June, 1995 in T.A. 15 of 1994 passed by the Debts Recovery Tribunal, Calcutta, and certificate in pursuance thereof as against the appellant, Eureka Forbes Ltd., is hereby set aside. The entire sum appropriated by the respondent bank in terms of the orders of the Honble Court in C.O. No. 1568 of 2004 be refunded to the appellant by the bank together with interest at the lending rate within a period of three months from date. There shall be no orders as to costs.Respondent Bank challenged the Order of the Appellate Tribunal under Article 227 of the Constitution of India being C.O. No. 554 of 2007, before the learned Single Judge of the Kolkata High Court which vide its judgment dated 12th October, 2007, restored the judgment and the order of the Tribunal. Aggrieved therefrom, the appellant preferred the appeal before the Division Bench of Kolkata High Court which, vide its Order dated 11th February, 2008, dismissed the appeal and sustained the Order of the learned Single Judge giving rise to the present Special Leave Petition.

Reasoning:
We have already noticed that owing to the sale of goods, complete knowledge, that the goods were hypothecated to the Bank is attributable to the appellant and hence, they could not have sold the said goods without permission of the Bank. Admittedly nothing of this kind was done and the Bank was kept inis obvious from the facts appearing on record that the loan has been sanctioned in a most casual and undesirable manner without even verifying the basic securities of respondent Nos. 2 & 3.From the above stated documentary evidence, it is clear that the parties had the knowledge of the fact that respondent nos. 2 and 3 enjoyed the financial assistance from the Bank and the goods wereven as per the statement of respondent nos. 2 and 3, the appellant sold the hypothecated goods with complete knowledge. This included hypothecated stock worth Rs. 7,00,000/-, lathe machine of value of Rs. 1,15,000/-, in addition to CTC machine and other spares.18. The goods in question, therefore, have been disposed off by the appellant either in collusion with respondent nos. 2 and 3 or at its own but with the knowledge that the goods were hypothecated to the Bank. Thus, to that extent, the liability of the appellant cannot beplain reading of the Section suggests that legislature has used a general expression in contra distinction to specific, restricted or limited expression. This obviously means that, the legislature intended to give wider meaning to the provisions. Larger area of jurisdiction was intended to be covered under this provision so as to ensure attainment of the legislative object, i.e. expeditious recovery and providing provisions for taking such measures which would prevent the wastage of securities available with the banks and financialwe fail to understand as to what advantage the learned counsel appearing for the appellant wishes to draw from this judgment and secondly, this judgment has clearly returned the finding, even on the facts of that case, that application under the provisions of the Recovery Act was maintainable within the scope of Section 2 (g) of thethe case in hand, there cannot be any dispute that the expression "debt" has to be given the widest amplitude to mean any liability which is alleged as due from any person by a bank during the course of any business activity undertaken by the bank either in cash or otherwise, whether secured or unsecured, whether payable under a decree or order of any court or otherwise and legally recoverable on the date of the application. In ascertaining the question whether any particular claim of any bank or financial institution would come within the purview of the tribunal created under the Act, it is imperative that the entire averments made by the plaintiff in the plaint be looked into and them find out whether notwithstanding the specially-created tribunal having been constituted, the averments are such that it is possible to hold that the jurisdiction of such a tribunal is ousted. With the aforesaid principle in mind, on examining the averments made in the plaint, we have no hesitation to come to the conclusion that the claim in question made by the plaintiff is essentially one for recovery of a debt due to it from the defendants and, therefore, is the Tribunal which has the exclusive jurisdiction to decide the dispute and not the ordinary civil court.As is obvious from the above recorded findings, the Court while referring to Section 2 (g), 17(1) and 31 (1) of the Recovery Act, observed that jurisdiction of the Civil Court was barred under the provisions of the Act and the suits or proceedings shall transfer to the Tribunal upon coming into force of the Recovery Act. The Court was primarilyhe matters being transferred from Civil Courts to Tribunal, still while referring to the provisions of Section 2 (g), held that the claim of the Bank was covered under the provisions of the Act. The suit, as instituted in the year 1991, had claimed various relief including the claim for damages. The objection raised was that, there was undetermined amount and other relief could not be referred to the Tribunal for adjudication. The suit was subsequently transferred to the Tribunal under the provisions of the Act and the Court while giving wide meaning to the expression `debt, clearly held that, this expression was of liberal amplitude and there was occasion for the Court to grant a restricted meaning. Thus, in our view, even the case of United Bank of India (supra) no way supports the submissions made on behalf of the appellant.36. On the plain analysis of the above stated judgment of this Court, it is clear that the word `debt under Section 2 (g) of the Recovery Act is incapable of being given a restricted or narrow meaning. The legislature has used general terms which must be given appropriate plain and simple meaning. There is no occasion for the Court to restrict the meaning of the word `any liability, `any person and particularly the words `in cash or otherwise. Under Section 2 (g), a claim has to be raised by the Bank against any person which is due to Bank on account of/in the course of any business activity undertaken by the Bank. In the present case, Bank had admittedly granted financial assistance to respondent nos. 2 and 3, who in turn had hypothecated the goods, plants and machinery in favour of the Bank. There cannot be any dispute before us that the goods in question have been sold by the appellant without the consent of the Bank. Respondent nos. 2 and 3 have hardly raised any dispute and resistance, to the claim of the Bank. In fact, even before this Court there is no representation on their behalf. The documentary and oral evidence on record clearly established that the Bank has raised a financial claim upon the principal debtor, as well as upon the person who had intermeddled and/or at least dealt with the charged goods without any authority in law. Not only this, the appellant had sold the hypothecated goods and stocks by public auction, despite the fact the appellant had due knowledge of the fact that the goods were charged in favour of the Bank. Another aspect of this case which required to be considered by this Court is, what was intended to be suppressed by the legislature by enacting the Recovery Act, 1993 and thereafter, by amending various provisions, including Section 2(g) in the year 2000. Obviously, the mischief which was intended to be controlled and/or prevention of wastage of securities provided to the Bank, was the main consideration for such enactment. The purpose was also to prevent wrong doers from taking advantage of their wrong/mistakes, whether permissible in law or otherwise. These preventive measures are required to bere and purposefully in accordance with law to ensure that the mischief, if not entirely extinguished, is curbed.Maxim Nullus commodum capere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations. In the present case Respondent Nos. 2 & 3 and the appellant have acted together while disposing off the hypothecated goods, and now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon respondent Nos. 2 & 3 and in any case on theare not impressed by this argument. Firstly, the judgment of the Gujarat High court is entirely on different facts and in that case an employee of the Bank had misappropriated the amount of the Bank, the Bank had instituted an application under the provisions of the Recovery Act. Rightly so it was held by the High Court, that it was not a `debt within the meaning of Section 2 (g) and, therefore, could not be tried before the Tribunal. We may state another illustration to demonstrate the case where the Tribunal may not have jurisdiction. Some persons commit a theft in the Bank and take away the money and/or the goods hypothecated to the Bank or the goods in the custody of the Bank. Upon Banks lodging a first information report (FIR) to the police, those persons are traced, arrested and tried in accordance with law for theft. In such a case, the Tribunal may not have jurisdiction to entertain and decide an application for recovery of money or value of goods in terms of Section 17 of the Recovery Act. That is neither the case here nor in any of the judgments which have been relied upon by the parties before us, except in the case of Gujarat High Court. In the case in hand, the goods were hypothecated to the Bank and the appellant admittedly had knowledge prior to the sale of the goods, that they were hypothecated to the Bank. If the contention of the appellant is accepted, it will amount to giving advantage or premium to the wrong doers. It would also further perpetuate the mischief intended to be suppressed by the enactment. This could completely defeat the very object and purpose of the Act. A party which had pledged or mortgaged properties in favour of the Bank, then would transfer such properties in favour of a third party. In the event, the Bank takes action under the provisions of the Recovery Act, they would take the objection like the present appellant. This would tantamount to travesty of justice and would frustrate the very legislative object and intent behind the provisions of the Recovery Act. Therefore, such an approach or interpretation would be impermissible.39. We have already noticed that the legislature has not used words of a restrictive or definite nature. It has intentionally made use of the expressions which are quite general and can be construed widely in their common parlance. There is no occasion for this Court to read the word other than the one intended by the legislature in the provisions of Section 2 (g) of the Recovery Act. Wherever the legislature requires, it uses the expressions of definite connotations and consequences, for example, in the Interest Act, 1978, the word `debt has been defined under Section 2(c) of that Act by using specific terms of restricted character. It means `any liability for an `ascertained sum of money and includes a debt payable in any kind but does not include a `judgment debt. In this definition, the `ascertained sum obviously means a sum which has been determined under any methods of the adjudicative process while, on the other hand, the expression `payable in kind is a general expression, again the excluding clause in relation to `judgment debt isis not the language or the purport of Section 2 (g) of the Recovery Act.This contention of appellant needs to be noticed only for being rejected. In our detailed discussion above, we have clearly held that, the claim raised by the Bank falls well within the ambit and scope of Section 2 (g) of the Recovery Act and the jurisdiction of the Tribunal cannot be ousted on this ground.41. Thus, in our opinion, the provisions of Section 2 (g) have to be construed, so as to give it liberal meaning. The general expressions used in this provision will have to be understood generally. Neither there is scope to hold nor is the legislative intent that these provisions should be given a narrower or a restricted meaning. In our considered view, the claim of the Bank relatable to the hypothecated goods was well within the jurisdiction of the Tribunal exercising its power under Section 17 of the Recovery Act.In our considered opinion, the scheme of the Recovery Act and language of its various provisions imposes an obligation upon the Banks to ensure a proper and expeditious recovery of its dues. In the present case, there is certainly ex facie failure of statutory obligation on the part of the Bank and its officers/officials. In the entire record before us, there is no explanation much less any reasonable explanation as to why effective steps were not taken and why the interest of the Bank was permitted to be jeopardized. The concept of public accountability and performance is applicable to the present case as well. These are instrumentalities of the State and thus all administrative norms and principles of fair performance are applicable to them with equal force as they are to the Government department, if not with a greater rigor. The well established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. In the case of State of Bihar v. Subhash Singh [ (1997) 4 SCC 430 ], this Court, in exercise of the powers of judicial review stated that, the doctrine of full faith and credit applies to the acts done by officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.44. Inaction, arbitrary action or irresponsible action would normally result in dual hardship. Firstly, it jeopardizes the interest of the Bank and public funds are wasted and secondly, it even affects the borrowers interest adversely provided such person was acting bonafide. Both these adverse consequences can easily be avoided by the authorities concerned by timely and coordinated action. The authorities are required to have a more practical and pragmatic approach to provide solution to such matters. The concept of public accountability and performance of functions takes in its ambit proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State instrumentalities and/or by the financialof public accountability is applicable to such officers/officials with all its vigour. Greater the power to decide, higher is the responsibility to be just and fair. The dimensions of administrative law permit judicial intervention in decisions, though of administrative nature, but are ex facie discriminatory. The adverse impact of lack of probity in discharge of public duties can result in varied defects not only in the decision making process but in the decision as well. Every public officer is accountable for its decision and actions to the public in the larger interest and to the State administration in its governance. It needs to be seen in the facts and circumstances of the present case, why and how the interest of the Bank has been jeopardized, in what circumstances the loan was sanctioned and disbursed despite some glaring defects having been exposed in the appraisal report. Significant element of discretion is vested in the officers/officials of the Bank while sanctioning and disbursing the loans but this discretion is circumscribed by the inbuilt commercial principles/restrictions as well as that such decisions should be free from arbitrariness, unreasonableness and should protect the interest of the Bank in all events. We are neither competent nor do we wish to venture to examine this aspect, it is for the appropriate authorities in the Bank to examine the matter from all quarters and then to take appropriate action against the erring officers/officials involved in the present case, that too, in accordance with law.