# Kotak Mahindra Bank Ltd v. Debts Recovery Appellate Tribunal, Allahabad and others

- **Citation:** (2009) 2 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-10
- **Case number:** Civil Misc. Writ Petition No.33791 of 2009
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kotak-mahindra-bank-ltd-v-debts-recovery-appellate-tribunal-allahabad-and-others-41659
- **Pages:** 4

## Headnote

Sri Zafar Naiyer, Addl. Adv. General
Sri Sachin Upadhyay
Sri Ashok Mehta
Sri P.N. Tripathi
Sri Jayant Banerji
Sri P.J. Nagar
S.C.

Debt Recovery Tribunal Act 1994-Section
20, 21 and 22-in defective appealagainst
the
order
passed
by
Debt
recovery Tribunal-without pre-deposit,
without considering the question of time
barred-appellate Tribunal passed interim
order-held-tribunal being creation of
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
statute can not travel beyond mandatory
provisions-order set-aside with direction
to decide the appeal in accordance with
laws without unnecessary adjournment.

Held: Para 8

This is a fall out of the principle that
once a procedure has been prescribed
then the procedure therein is binding on
the parties and the same can be waived
only in terms of the provisions made
under the Statute. From a perusal of the
Statutory provisions, it is evident that
the Tribunal was obliged to pass an
order on the application moved by the
State for waiving the condition of predeposit and also to consider the issue of
limitation before proceeding to entertain
the appeal on merits or the application
for interim protection. The grant of
interim order was, therefore, in the
opinion of the Court, patently without
jurisdiction
without
there
being
a
competent
appeal
in
terms
of
the
Statute. The Tribunal, being a creation
under the Statute, therefore, could not
have traveled beyond the provisions
aforesaid.

## Text

2 All] Kotak Mahindra Bank Ltd. V. Debt Recovery Appellate Tribunal and others
571
If the persons like Kanhaiya Lal Sharma
(applicant) are allowed to be released on
bail in such crimes, then the people would
be reluctant to deposit their money in Post
Offices, which would cause great damage
to the institution. Therefore, having
regard to all these facts, but without
expressing any opinion on merit of the
case, in this heinous crime, the applicant
does not deserve bail.

27. In my considered opinion, on the
basis of the long incarceration in jail also,
the applicant can not be admitted to bail
in this heinous crime. In this context,
reference may be made to the case of
Pramod Kumar Saxena vs. Union of
India and others 2008 (63) ACC 115, in
which the Hon'ble Apex Court has held
that mere long period of incarceration in
jail would not be per-se illegal. If the
accused has committed offence, he has to
remain behind bars. Such detention in jail
even as an under trial prisoner would not
be violative of Article 21 of the
Constitution.

28.

Consequently,
the
bail
application of the applicant Kanhaiya Lal
Sharma is hereby rejected.

29. The trial court concerned is
directed to conclude the trial of the
applicant and other accused persons
within six months making sincere efforts
and avoiding unnecessary adjournments.

30. SSP Saharanpur also is directed
to depute special messenger to procure the
attendance
of
the
witnesses
after
obtaining their summons from the court
concerned.

31. Before parting with this order, I
would like to point out that whatever
observations have been made herein-
above by me are for the purpose of
disposal of this bail application only. The
trial court would be at liberty to take its
own view on all the matters and will not
be guided by the observations made by
me in this order.

32. The office is directed to send a
copy of this order within a week to the
trial court and SSP concerned for
necessary action.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No.33791 of 2009

Kotak Mahindra Bank Ltd.
...Petitioner
Versus
Debts
Recovery
Appellate
Tribunal,
Allahabad and others
...Respondents

Counsel for the Petitioner:
Sri Anil Tiwari
Sri O.P. Misra
Sri Apoorva Tewari

Counsel for the Respondents:
Sri Zafar Naiyer, Addl. Adv. General
Sri Sachin Upadhyay
Sri Ashok Mehta
Sri P.N. Tripathi
Sri Jayant Banerji
Sri P.J. Nagar
S.C.

Debt Recovery Tribunal Act 1994-Section
20, 21 and 22-in defective appealagainst
the
order
passed
by
Debt
recovery Tribunal-without pre-deposit,
without considering the question of time
barred-appellate Tribunal passed interim
order-held-tribunal being creation of
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
statute can not travel beyond mandatory
provisions-order set-aside with direction
to decide the appeal in accordance with
laws without unnecessary adjournment.

Held: Para 8

This is a fall out of the principle that
once a procedure has been prescribed
then the procedure therein is binding on
the parties and the same can be waived
only in terms of the provisions made
under the Statute. From a perusal of the
Statutory provisions, it is evident that
the Tribunal was obliged to pass an
order on the application moved by the
State for waiving the condition of predeposit and also to consider the issue of
limitation before proceeding to entertain
the appeal on merits or the application
for interim protection. The grant of
interim order was, therefore, in the
opinion of the Court, patently without
jurisdiction
without
there
being
a
competent
appeal
in
terms
of
the
Statute. The Tribunal, being a creation
under the Statute, therefore, could not
have traveled beyond the provisions
aforesaid.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Supplementary-Affidavit filed
today, is taken on record.

2. Heard Sri Anil Tiwari, Senior
Advocate, assisted by Sri Apoorva Tewari
and Sri O.P. Misra, learned counsel for
the petitioner and Sri Zafar Naiyer,
learned Addl. Advocate General for the
State, assisted by Sri Sachin Upadhyay,
Advocate.

3. Notice has been served on Sri
Ashok Mehta, learned counsel for the
U.P. State Cement Corporation Ltd.
through the official liquidator, notice has
been accepted by Sri J. Nagar for
respondent No. 6, notice on behalf of
respondent No. 7 has been accepted by Sri
P.N. Tripathi and notice on behalf of
respondent No. 8 has been accepted by Sri
Jayant Banerji.

4. Having heard learned counsel for
the parties, it is not necessary to issue
notice to the other respondents as the
learned counsels for the parties, after the
submissions
were
advanced,
have
consented to the final disposal of the writ
petition for being remanded back to the
Tribunal for passing of the orders in the
terms as provided hereinafter. In view of
the aforesaid facts, the matter is being
disposed of finally under the Rules of the
Court without awaiting for any further
Affidavits.

5. Under the judgment of the Debt
Recovery
Tribunal
dated
6.12.2006
certain
amount
was
sought
to
be
recovered from the respondents therein.
This decree was further modified on an
application vide order dated 7.7.2008. The
State moved an application for recall of
the judgment dated 6.12.2006 which had
been allegedly amended by the order
dated 7.7.2008. This application has been
undisputedly rejected. The State of U.P.
has now preferred an Appeal against the
said orders in which a Caveat was
instituted by the petitioner, which has
given rise to the present proceedings. An
objection was filed on behalf of the
petitioner to the effect that the Appeal
was incompetent in view of the provisions
of Section 20,21 and 22 read with the
Rules prescribed under 1994 Rules and
heavily time barred, as such, there was no
occasion for the Tribunal to have granted
an interim relief to the respondent-State of
U.P. on an incompetent appeal.
2 All] Kotak Mahindra Bank Ltd. V. Debt Recovery Appellate Tribunal and others
573

6. Sri Anil Tiwari has invited the
attention of the Court to the various
provisions
which
provide
for
the
presentation of an Appeal, the manner in
which the pre-deposit has to be made and
the scrutiny of any Appeal before it is
entertained for orders having passed
thereon. Sri Tiwari has urged that neither
any proper court fee has been paid, which
is evident from a perusal of the impugned
order itself nor had the pre-deposit been
made as per the provisions of Section 21
of the Act. He further contends that the
matter was taken up hastily and the orders
were passed as an interim measure
without there being any competent appeal
in the eyes of law. He contends that the
procedure prescribed under the Act and
the Rules have to be construed strictly as
they relate to recovery proceedings and,
therefore,
there
cannot
be
any
presumption or deemed compliance of
provisions.
He
contends
that
an
application for waiving the conditions of
pre-deposit had been moved by the State
of U.P. but without any order having been
passed thereon, the Tribunal has erred in
proceeding to straightaway grant an
interim order. This is also evident from a
perusal of the order impugned wherein
dates have been fixed inviting objections
on the application moved on behalf of the
petitioner for dismissing the appeal. Sri
Tiwarin
further
contended
that
the
question of limitation is also involved
and, therefore, the pre-requisite for
entertaining the appeal was the question
of jurisdiction to be assumed by the
Tribunal on the issue of limitation as well
as on the issue of pre-deposit as contained
under Section 21. He contends that the
Tribunal has committed a patent error and
not a latest error which could be cured
later on.

7. Sri Zafar Naiyer for the State, on
the other hand, contends that as a matter
of fact, there is no decree which could be
executed against the State nor any amount
was due and, therefore, the Tribunal was
fully justified on the facts of the case to
have granted interim relief. On the other
issues, Sri Zafar Naiyer has urged that in
view of the facts of this case, the Tribunal
was fully justified in extending the benefit
of interim relief to the State as in his
humble opinion, there was no liability on
the State at all.

8. Having heard learned counsel for
the parties and having considered their
submissions, it is more than evident that
the
statute
prescribes
a
particular
procedure to be adopted for preferring an
appeal against an order. Undisputedly, the
State has under a presumption, that the
decree is likely to affect the interest of the
State, filed an appeal. The Statute does
not draw any distinction on the issue of
liability or no liability arising out of a
decree for the purposes of following the
procedure prescribed for presenting an
appeal. The appeal has to be presented in
the manner in which it has been provided
for, under the Statute. It is settled right
from Taylor Vs. Taylor, (1876) 1 Ch.D.
426 and others upto Prof. Ramesh
Chandra V. State of U.P. and others, 2007
(4) ESC 2338 (All)(DB) (para 27) that
when a procedure has been prescribed in
law then the Authority has to proceed to
adjudicate such a claim in that manner
alone and no other. This is a fall out of the
principle that once a procedure has been
prescribed then the procedure therein is
binding on the parties and the same can be
waived only in terms of the provisions
made under the Statute. From a perusal of
the Statutory provisions, it is evident that
the Tribunal was obliged to pass an order
574 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
on the application moved by the State for
waiving the condition of pre-deposit and
also to consider the issue of limitation
before proceeding to entertain the appeal
on merits or the application for interim
protection. The grant of interim order
was, therefore, in the opinion of the
Court,
patently
without
jurisdiction
without there being a competent appeal in
terms of the Statute. The Tribunal, being a
creation under the Statute, therefore,
could not have traveled beyond the
provisions aforesaid.

9. Sri Zafar Naiyer, at this juncture,
urged, that the matter be remanded back
without keeping it pending so that these
issues may be decided at the earliest by
the Tribunal where a very short date has
already been fixed.

10. Having drawn the aforesaid
conclusions, there is no point in keeping
this writ petition pending and, therefore,
the orders impugned dated 11.6.2009 and
1.7.2009 are set aside with a direction to
the Tribunal to proceed to pass orders in
accordance with the provisions of the
Statute as observed herein above and in
accordance with law.

11. It shall be open to the petitioner
to press all the applications that have been
filed relating to the maintainability of the
appeal and the objections thereon on
behalf of the Statute and the Tribunal
shall be obliged to decide the same,
accordingly.

12. The Tribunal shall proceed to
decide the matter without granting any
unnecessary adjournments.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2009

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Civil Misc. Writ Petition No.39253 of 2008

Managing Committee and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Shri Ashok Khare, Senior Counsel
Sri Ismamul Rahman Khan

Counsel for the Respondents:
CSC,
Sri Mahtab Alam

Societies Registration Act 1860-Section
25 (1)-Amendment of bylaws-extending
the
term
of
society-accepted
by
Assistant
Registrar-held-illegal-before
expiry of the admitted term only way to
get fresh election-held-extending the
term
from
3
years
to
5
yearsundemocratic-illegal-District Magistrate
to appoint authorized controller till fresh
election-held.

Held: Para 21

In the present case, keeping in view the
observation made hereinabove, it shall
be appropriate that a fresh election
should be held of the Committee of
Management
in
pursuance
to
the
provisions contained in Sub Section (2)
of Section 25 of the Act on the basis of
membership list as was available in the
year 2004 to run the society in question.
Case law discussed:
[2006(24) LCD 1373], 2004(5)SCC 795, AIR
(39) 1952 SC 6, AIR 1978 SC 851, 1994
Allahabad CJ 162, (2001)8 SCC 509, 1991
Suppl. 2 SCC 36, 1991(2) SCC 412, 2002 Vol.
1 AWC 771, 2003 Vol. 3 AWC 1802.