IN THE DEBTS RECOVERY
TRIBUNAL SILIGURI
PCM
Tower, 2nd Floor, 2 no.Mile, Sevoke Road, Siliguri - 734001.
I.A. No.
_____________of 2025
in
ORIGINAL APPLICATION
NO. 15 OF 2024
PUNJAB NATIONAL BANK
--- ---- APPLICANT
– VERSUS –
M/S. H. M. ENTERPRISE AND OTHERS
----- ---- DEFENDANTS
APPLICATION UNDER ORDER 7, RULE 11 OF THE CODE
OF CIVIL PROCEDURE, 1908 READ WITH SECTION 19 OF THE RECOVERY OF DEBTS AND
BANKRUPTCY ACT, 1993 FOR REJECTION OF ORIGINAL APPLICATION;
The humble petition of the above named
defendant no. 2, Hasna Bewa, most respectfully;
Sheweth as under :
1.
That the defendant
no.2, Hasna Bewa is in receipt of the Copy of the Original Application with all
annexures only on 27th day of January’ 2025, in pursuance of the
Order dated 09-01-2025, passed in the above referred Original Application by
the Hon’ble Tribunal. The defendant no. 2, Hasna Bewa on her bare perusal of
the plaint, founds that the contents and statements of the plaint are false,
concocted and based on false summarization.
2.
That the Objector is a Defendant no.
2, Hasna Bewa in the Original Application (OA) No. 15 of 2024 filed by the Applicant
Bank before this Hon’ble Tribunal under Section 19 of the Recovery of Debts and
Bankruptcy Act, 1993.
3.
That the said OA has been filed by the
Applicant Bank through its Chief Manager, purportedly acting on behalf of the
bank. However, the said Chief Manager has neither placed any valid
authorization, Power of Attorney, or Board Resolution authorizing him to file
the present OA on behalf of the bank.
4.
That it is a settled principle of law
that a suit, claim, or OA filed by a person who has no authority to represent
the institution is not maintainable in law and is liable to be rejected at the
threshold.
5.
That the Applicant Bank has failed to submit any valid
authorization or competency certificate, either at the time of filing the OA or
in the evidence presented before this Hon’ble Tribunal, which renders the
application legally untenable.
6.
That as per the settled law laid down
in various judicial pronouncements, any legal proceeding initiated without
proper authorization is null and void ab initio. Reliance is placed
on:
a)
United
Bank of India v. Naresh Kumar & Ors. (1996) SCC 6 660 –
The Hon’ble Supreme Court held that banks must provide proper authorization for
officers filing suits on their behalf.
b)
M/s
Nibro Limited v. National Insurance Co. Ltd. (1991) AIR DELHI 25 – The Delhi High Court ruled that an officer must be
specifically empowered to institute a suit; otherwise, the plaint is liable to
be rejected.
c) ICICI Bank Ltd. v. Official
Liquidator (2010) 10 SCC
1 – The Hon’ble Supreme Court reiterated that banks must provide
appropriate authority documents for initiating legal proceedings.
7.
That
in the absence of any valid authorization, the OA filed by the Applicant Bank
is not maintainable and is liable to be dismissed in limine.
8.
That
Order 7, Rule 11 of the CPC provides that a plaint shall be rejected where it
does not disclose a cause of action or is barred by any law. In the present
case, the lack of authorization renders the OA barred in law and liable for
rejection.
9.
That
the Applicant Bank has failed
to disclose a valid cause of action under Section 19 of the RDB Act, 1993,
for the following reasons:
a)
The
OA is based on a demand
notice under Section 13(2) of the SARFAESI Act, 2002, which has been set aside
vide Order & Judgment dated 29/07/2024, passed in SA no. 26 of 2022 &
SA no. 27 of 2022, making the claim legally unsustainable.
b)
The
Applicant Bank has failed to establish any fresh cause of action arising
after the rejection of the said demand notice dated 02/07/2021, under Section
13(2) of the SARFAESI Act 2002.
c)
The
OA does not establish a legally enforceable claim as required under Section 19 of the RDB Act,
and therefore, lacks a valid cause of action.
Photostat Server Copy of the
Order & Judgment dated 29/07/2024, passed in SA no. 26 of 2022 & SA no.
27 of 2022, by the Hon’ble Tribunal are annexed herewith and marked as Annexure
– “A”.
10.
That as per the settled law laid down
in various judicial pronouncements, any legal proceeding initiated without
Cause of Action is null and void ab initio. Reliance is placed on:
Mardia Chemicals Ltd. v. Union
of India (2004)
SCC 4 311 – The Supreme Court ruled
that a defective demand notice cannot be the basis of a recovery claim
before the DRT.
11.
That
in the absence of any valid Cause of Action, the OA filed by the Applicant Bank
is not maintainable and is liable to be dismissed in limine in terms of Order
7, Rule 11(a) of CPC.
12.
That
further, the relief sought by the Applicant Bank in the present OA is prohibited by law,
as under Section 19 of the RDB Act, 1993, the Tribunal can only issue a Recovery Certificate
and not a decree
as prayed for by the Bank. The relief sought is therefore legally untenable,
and the OA is liable to be rejected under Order 7, Rule 11(d) CPC.
13.
That as per the settled law laid down
in various judicial pronouncements, any legal proceeding initiated without
Cause of Action is null and void ab initio. Reliance is placed
on:
- Punjab
National Bank v. O.C. Krishnan (2001)
SCC 6
569 – The Supreme Court clarified
that DRTs issue Recovery Certificates rather than decrees.
- Allahabad
Bank v. Canara Bank (2000) SCC 4 406
– The Supreme Court explained that DRT is a specialized tribunal
and does not function like a civil court; its final adjudication results
in a Recovery Certificate.
- ICICI
Bank Ltd. v. Official Liquidator (2010)
10 SCC 1 –
The Court reiterated that DRTs do not issue civil decrees but operate
under a statutory recovery mechanism.
14.
That
pertinently if a bank prays for a decree instead of a Recovery
Certificate, the relief sought is barred by law, making the Original
Application (OA) liable to be rejected under Order 7, Rule 11(d) of CPC.
15.
That
in addition, under Section
24 of the RDB Act, 1993, the provisions of the Limitation Act, 1963,
are applicable to proceedings before the Debt Recovery Tribunal. The OA has
been filed beyond the limitation period prescribed under:
Article 137 of the Limitation
Act, 1963
– which provides a limitation period of three
(3) years from the date the debt becomes due and payable.
If applicant bank fails to file
an OA within 3 years from the date of default, it is liable to be
rejected under Section 24 of the RDB Act 1993.
11.
That as per the settled law laid down
in various judicial pronouncements, any legal proceeding initiated beyond the
limitation prescribed under the Law is null and void ab initio. Reliance
is placed on:
Syndicate Bank v.
Channaveerappa Beleri (2006) SCC 11 506
– The Supreme Court held that the provisions of the Limitation Act apply to DRT
proceedings, and a time-barred claim cannot be entertained.
12.
That
in the present case, the OA has been filed beyond the prescribed limitation
period, making the claim barred
by law and liable for rejection under Order 7, Rule 11(d) CPC.
13.
That in the given facts and
circumstances the present Original Application (OA) under Section 19 of the
Recovery of Debts and Bankruptcy Act, 1993 (RDB Act), is not sustainable under
the Law and therefore the defendant herein seeks dismissal of the suit inlimnie.
- There
is no merit in the said Original Application (OA) under Section 19 of the
Recovery of Debts and Bankruptcy Act, 1993 (RDB Act).
- That
unless the Hon’ble Tribunal rejected /dismissed the above referred
Original Application (OA) under Section 19 of the Recovery of Debts and
Bankruptcy Act, 1993 (RDB Act), the defendant herein will highly prejudice
and suffer with irreparable loss and injury, thereof.
- That
the present application is made bona fide and in the interest of justice.
It
is therefore, most respectfully prayed as follows:-
(a) Reject the Original
Application (OA) No. 15 of 2024 filed by the Applicant Bank under Order 7, Rule
11 of CPC, 1908;
(b) Declare that the relief
sought by the Applicant Bank is barred
by law and cannot be granted under Section 19 of the RDB Act,
1993;
(c) Declare that the OA is barred by limitation under
Section 24 of the RDB Act, 1993, read with the Limitation Act,
1963;
(d) Declare that the OA lacks a
valid cause of
action under Section
19 of the RDB Act, 1993;
(e) Pass any such further
order(s) as may be deemed fit and proper in the facts and circumstances of the
case.
And for this act of kindness your
petitioner as in duty bound shall ever pray.
AFFIDAVIT
I,
Hasna
Bewa, Wife of Late Janaruddin Seikh, aged about 53 years, by faith Muslim, by
Occupation Business, residing at premises being Village – Ustia, Post Office –
Muktinagar, Police Station – Berahampore, District – Murshidabad, Pin – 742102,
West Bengal,
do here by solemnly affirm and declare as follows:-
1.
That
I am the Defendant no. 2 in the above Suit and I am well acquainted with the
facts of the suit and I am competent to swear this Affidavit.
2.
That
the statements made above in paragraphs are true to my knowledge as derived
from the records.
That
the rest are my humble submissions to the Hon’ble Debt Recovery Tribunal and I
sign this Affidavit on the _________February’ 2025.
DEPONENT
Identified
by me
Advocate
Prepared
in my Chamber,
Advocate.
Dated
: _____February’ 2025.
Place
: Kolkata.
N O T A R Y
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