# Smt. Sheela Dubey v. Debt Recovery Appellate Tribunal & Ors

- **Citation:** (2013) 3 ILRA 1427
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-29
- **Case number:** Writ Petition No. 341(MS) of 2006
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sheela-dubey-v-debt-recovery-appellate-tribunal-ors-42719
- **Pages:** 6

## Headnote

Institutions Act-1993, Section 22-readwith
order XXII Rule 4 C.P.C.-Substitution of
legal heirs-suit for recovery-pending before
civil court-during pendency of suit D-4 dieddue to creation of Tribunal-no substitution
application could be brought on recordtribunal allowed substitution applicationconsidering
recovery-belongs
to
public
exchequer-recoverable from debtor and its
guarantor-liability being joint and severalproceeding not going to abated-held subapplication
not
require
to
consider
technically to defeat the very purpose of
enactment of Act itself-petition dismissed.

Held: Para-13
The money which is due for recovery
belongs to the public exchequer and is
liable to be recovered from the debtor as
well as its guarantors, therefore, I am of the
view that the principles of natural justice
demands to bring the legal representatives
of the debtors and or the guarantors on
record. It is also pertinent to mention here
that the liability being joint and several, the
suit for recovery is not going to be abated
as a whole, thus once the suit survives even
after
non
impleadment
of
the
legal
representatives of the defendant No.4 and
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
money is recoverable from any or all of the
defendants as a whole, there is no harm to
allow the application for substitution of the
legal representatives of defendant No.4.
Therefore, I am of the view that the
application for substitution of the legal
representatives of the defendant No.4
moved by the respondent-bank does not
require to be dealt with so technically as it
may defeat the purpose of the Act.

## Text

3 All] Smt. Sheela Dubey Vs. Debts Recovery Appellate Tribunal & Ors.
1427
agricultural
purposes
and
already
construction was raised thereon, yet claims
that it is an agricultural land. He also took a
stand that construction was raised by him
though it has come on record and proved by
evidence that the construction was old and
could not have been raised by defendants.
All these facts show that the conduct of
defendant in the entire case was neither
straight nor honest. It is true that in respect of
market value of the land, over which finding
has been recorded by LAC, it may be said
that there was no evidence, but the land in
question at the time of execution of sale deed
was of much higher value, as is evident from
the fact that it was transferred for a
consideration of Rs. 24,000/- but for the
purpose of stamp duty, much higher value
has been mentioned and that too when it was
taken as agricultural land. It is in these facts,
the finding recorded by LAC that value of
the land would have been much more than
Rs. 24,000/-, it cannot be said that a prudent
vender could have sold 24 dismal of land for
just Rs. 24,000/-, when almost 20 years back
he has purchased the land for a consideration
of Rs. 5,000/-. In entirety and the backdrop
of all these facts, it cannot be said to be
without any evidence or perverse.

40. In view thereof, I do not find
that LAC erred in law or otherwise by
reversing the finding of the Trial Court.
The question no. 1, in my view, deserves
to be answered in affirmative and returned
accordingly
in
favour
of
plaintiffrespondents.

41. In view of above, the appeal, as
a consequence, has to fail. It is,
accordingly, dismissed.

42. No costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.10.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 341(MS) of 2006

Smt. Sheela Dubey
 ...Petitioner
Versus
Debt Recovery Appellate Tribunal & Ors.
 ...Opp. Parties

Counsel for the Petitioner:
Sri Jaspreet Singh

Counsel for the Respondents:
Sri N.K. Seth , C.S.C. , Sri D.K. Pathak
Sri Ravi Shanker Tiwari, Sri Shashank
Pathak.

Recovery of Debt due to Banks & financial
Institutions Act-1993, Section 22-readwith
order XXII Rule 4 C.P.C.-Substitution of
legal heirs-suit for recovery-pending before
civil court-during pendency of suit D-4 dieddue to creation of Tribunal-no substitution
application could be brought on recordtribunal allowed substitution applicationconsidering
recovery-belongs
to
public
exchequer-recoverable from debtor and its
guarantor-liability being joint and severalproceeding not going to abated-held subapplication
not
require
to
consider
technically to defeat the very purpose of
enactment of Act itself-petition dismissed.

Held: Para-13
The money which is due for recovery
belongs to the public exchequer and is
liable to be recovered from the debtor as
well as its guarantors, therefore, I am of the
view that the principles of natural justice
demands to bring the legal representatives
of the debtors and or the guarantors on
record. It is also pertinent to mention here
that the liability being joint and several, the
suit for recovery is not going to be abated
as a whole, thus once the suit survives even
after
non
impleadment
of
the
legal
representatives of the defendant No.4 and
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
money is recoverable from any or all of the
defendants as a whole, there is no harm to
allow the application for substitution of the
legal representatives of defendant No.4.
Therefore, I am of the view that the
application for substitution of the legal
representatives of the defendant No.4
moved by the respondent-bank does not
require to be dealt with so technically as it
may defeat the purpose of the Act.

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1. Heard Mr.Jaspreet Singh, learned
counsel for the petitioner as well as
Mr.D.K.Pathak, learned counsel for the
respondents.

2. The petitioner has assailed the
order dated 23.7.2003, passed by the
Debts Recovery Tribunal, Lucknow in
case No.TA 291 of 2002 (Annexure No.2)
as also the order dated 7.12.2005, passed
by
the
Debts
Recovery
Appellate
Tribunal, Allahabad in appeal, upholding
the order passed by the Tribunal of the
original jurisdiction.

3. Briefly the facts of the case are
that the respondent No.3, State Bank of
India, being plaintiff filed a regular suit
before the court of Civil Judge, Lucknow,
which was registered as Regular Suit
No.215 of 1991 for recovery of a sum of
Rs.18,49,822/- against the respondent
No.4, Company as well as its guarantors.

4. During the pendencey of the suit
before the Civil Court two defendants i.e.
defendant No.2 Shri B.R.Dubey and
defendant No.4 Shri D.R.Dubey died. In
the case at hand the controversy relates to
the
substitution
of
legal
heirs
of
Mr.D.R.Dubey, defendant No.4, who died
on 24th of December, 1997. The learned
counsel for the answering respondent
submits that the information of death of
Shri D.R.Dubey, was conveyed by the
other defendants to the plaintiff in Civil
Court
on
28.1.1998,
whereas
vide
notification dated 7th of April, 1998 the
Debts Recovery Tribunal, Jabalpur was
created and the jurisdiction of the Civil
Court ceased w.e.f. that date, therefore,
the Bank moved an application before the
Civil Court on 20.7.1998 for transfer of
the case to Debts Recovery Tribunal,
Jabalpur and the case was transferred.
Then again it was transferred to Debts
Recovery Tribunal, Allahabad and thus
the Bank moved the application for
substitution of legal heirs of defendant
No.4 on 31.1.2002 before the Debts
Recovery Tribunal, Allahabad.

5. The defendants raised objection
against the maintainability of the said
application being barred by time as
according to them the provisions of Order
22 Rule 4 of the Code of Civil Procedure
are applicable in case of death of one of
several defendants or of sole defendant,
for which there is a provision to make
legal representation of the deceased as
party and to proceed with the suit.
However, sub rule (3) CPC provides that
where within the time limited by law no
application is made under sub-rule (1), the
suit shall abate as against the deceased
defendant. Order 22 Rule 4 CPC is
extracted below:-

"4. Procedure in case of death of one
of
several
defendants
or
of
sole
defendant.- (1) Where one of two or more
defendants dies and the right to sue does
not
survive
against
the
surviving
defendant or defendants alone, or a sole
defendant or sole surviving defendant dies
and the right to sue survives, the Court, on
an application made in that behalf, shall
cause the legal representative of the
3 All] Smt. Sheela Dubey Vs. Debts Recovery Appellate Tribunal & Ors.
1429
deceased defendant to be made a party
and shall proceed with the suit.

(2)Any person so made a party may
make any defence appropriate to his
character as legal representative of the
deceased defendant.

(3) Where within the time limited by
law no application is made under sub-rule
(1), the suit shall abate as against the
deceased defendant.

(4) The Court whenever it thinks fit,
may exempt the plaintiff from the
necessity
of
substituting
the
legal
representatives of any such defendant
who has failed to file a written statement
or who, having filed it, has failed to
appear and contest the suit at the hearing;
and judgment may, in such case, be
pronounced against the said defendant
notwithstanding
the
death
of
such
defendant and shall have the same force
and effect as if it has been pronounced
before death took place]

(5) Where-

(a) the plaintiff was ignorant of the
death of a defendant, and could not, for
that reason, make an application for the
substitution of the legal representative of
the defendant under this rule within the
period specified in the Limitation Act,
1963 (36 of 1963), and the suit has, in
consequence, abated, and

(b) the plaintiff applies after the
expiry of the period specified therefor in
the Limitation Act, 1963 (36 of 1963), for
setting aside the abatement and also for
the admission of that application under
Section 5 of that Act on the grounds that
he had, by reason of such ignorance,
sufficient cause for not making the
application within the period specified in
the said Act, the court shall, in
considering the application under the said
section 5 have due regard to the fact of
such ignorance, if proved.]"

6. He further submits that under
Limitation Act, 1963 the time given to
make a party of the legal representative of
the deceased-plaintiff or appellant or
defendant or respondent, as the case may
be, is provided as 90 days from the date of
death. Therefore, the application moved by
the plaintiff-bank was barred by time. He
further contends that Section 22 of the
Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 (in short
Recovery of Debts Act, 1993) provides that
the Tribunal shall have power to regulate its
own procedure. The Regulations have been
formulated and notified, which are called as
the Debts Recovery Tribunal Regulations of
Practice, 1996. It came into effect on
2.12.1996. Regulation 89 of which confers
the power and makes the provisions of
Order 22 of the Code of Civil Procedure
applicable in so far as moving an
application for legal representative of the
deceased as party to the proceeding.
Regulation 89 is extracted below:-

"89.Application for making legal
representative of deceased persons as
parties to proceedings:- Application by or
against legal representatives shall be
made within 90 days from the date of
death of the party or person concerned
and for such purpose the provisions of
Order 22 of the Code of Civil Procedure,
may as far as may be and with necessary
modifications be followed."

7. Thus, he submits that once the
Regulation limits the period for filing an
application as 90 days to bring on record
the legal heirs of the deceased-defendant,
the application, moved by the Bank
beyond, it definitely has become time
barred. Thus, he submits that the Debt
Recovery Tribunal as well as the
Appellate
Tribunal
have
failed
to
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
appreciate the law framed to entertain the
application to bring on record the legal
representatives of the deceased-defendant
correctly, therefore, the orders passed by
the Tribunal are unsustainable and are
liable to be quashed.

8. Per contra Mr.D.K.Pathak, learned
counsel for the Bank submitted that Section
22 of the Recovery of Debts Act, 1993
provides that the Tribunal and appellate
Tribunal shall not be bound by the
procedure laid down by the Code of Civil
Procedure, but shall be guided by the
principles of natural justice. He further
submits that Section 22 of the Recovery of
Debts Act, 1993 further provides that the
Tribunal and the Appellate Tribunal shall
have powers to regulate their own
procedure including the places at which
they have their sitting. No doubt the
Tribunal has been assigned the same powers
as are vested in the Civil Court under the
Code of Civil Procedure while trying the
suit, but those are extracted for certain
purposes as is provided under Sub-section
(2) of Section 22 of the Act. Section 22 of
the Act is extracted below:-

"22.Procedure and powers of the
Tribunal and the Appellate Tribunal:- (1)
The Tribunal and the Appellate Tribunal
shall not be bound by the procedure laid
down by the Code of Civil Procedure,
1908 (5 of 1908), but shall be guided by
the principles of natural justice and,
subject to the other provisions of this Act
and of any rules, the Tribunal and the
Appellate Tribunal shall have powers to
regulate their own procedure including
the places at which they shall have their
sittings.

(2) The Tribunal and the Appellate
Tribunal shall have, for the purpose of
discharging their functions under this Act,
the same powers as are vested in a Civil
Court under the Code of Civil Procedure,
1908 (5 of 1908), while trying a suit in
respect of the following matters, namely:-

(a) summoning an enforcing the
attendance of any person and examining
him in oath;

(b) requiring the discovery and
production of documents;

(c ) receiving evidence on affidavits;

(d) issuing commissions for the
examination of witnesses or documents;

(e) reviewing its decisions;

(f) dismissing an application for
default or deciding it ex parte;

(g) setting aside any order of
dismissal of any application for default or
any order passed by it ex parte;

(h) any other matter which may be
prescribed.

(3) Any proceeding before the
Tribunal or the Appellate Tribunal shall
be deemed to be a judicial proceeding
within the meaning of Sections 193 and
228, and for the purposes of Section 196,
of the Indian Penal Code (45 of 1860) and
the Tribunal or the Appellate Tribunal
shall be deemed to be a Civil Court for all
the purposes of Section 195 and Chapter
XXVI of the Code of Criminal Procedure,
1973 (2 of 1974).

9. In the light of the aforesaid
provisions he submits that there is no iota of
doubt that the procedure provided under
Order 22 Rule 4 of the Code of Civil
Procedure as well as under Article 120 of the
Limitation Act are not applicable. So far as
the Regulations framed by the Tribunal
which provides the limitation of 90 days to
move such application is concerned, he
submits that the regulations 1996 as referred
by the petitioner have been framed for the
particular Tribunals, which are not applicable
to the Tribunals established either at
Allahabad or Lucknow. In support of his
3 All] Smt. Sheela Dubey Vs. Debts Recovery Appellate Tribunal & Ors.
1431
submissions he also placed on record one
other Regulation of practice 2010, which has
been framed in exercise of power conferred
by sub Section (1) of Section 22 of the Act,
1993 to regulate the procedure by the Debts
Recovery
Tribunals
at
Ahmadabad,
Aurangahad, Mumbai, Nagpur and Pune,
whereas till date the Tribunals established
either at Allahabad or at Lucknow has not
framed any such regulation. Therefore, it has
to proceed in its own wisdom guided by the
principles of natural justice and subject to the
other provisions of the Act and Rules framed
thereunder.

10. In addition to the aforesaid pleas
he further submitted that it is a recovery of
public money and the debtor Company as
well as other guarantors are on record and in
default of payment of loan the liabilities of
the debtor as well as the guarantors is joint
and several, therefore, the delay, if any, in
moving such an application does not affect
the proceeding of the case. Since the money
is a public money the principles of natural
justice demands to incorporate the legal
representatives of the deceased party. It is
further stated that the respondent-bank has
not committed default in making the
application as soon as it was informed by
the other defendant with respect to the death
of defendant No.4 on 28.1.1998, who died
on 24.12.1997, he tried to move the
application, but since by creation of Debt
Recovery Tribunal at Jabalpur by means of
Notification dated 7th of April, 1998, the
Civil Court ceased its power to proceed
with the suit, therefore, the bank could not
move the application.

11. In connection of constitution of
Debts Recovery Tribunals after some time of
creation
of
Debt
Recovery
Tribunal,
Jabalpur, the Debt Recovery Tribunal,
Allahabad was created, where ultimately the
jurisdiction vested for trial of this case and
the respondent-bank moved the application,
without fail, therefore, the same is not liable
to be thrown out being barred by time under
the provisions of the Code of Civil Procedure
or the Regulations framed for the particular
Tribunals.

12. After considering the rival
submissions of learned counsels for the
parties as well as the provisions of the
Act, I find that by Section 22 of the
Recovery of Debts Act, 1993 the Debt
Recovery Tribunals are not bound by the
procedure laid down by the Code of Civil
Procedure. Indisputedly the Tribunals are
vested with the same powers as of the
Civil Court under the Code of Civil
Procedure, while trying the suit, which are
extracted for certain proceedings as
envisaged in sub section (2) of Section 22
of the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993, but
after reading the said provisions, it is clear
that that does not include to deal with the
application to bring on record the legal
representatives of the defendants.

13. So far as the Regulations 1996 are
concerned, definitely i.e. applicable for the
particular Tribunals. Section 22 of the
Recovery of Debts Due to Banks and
Financial
Institutions
Act,
1993
has
empowered the Tribunals to regulate their
own procedure. Indisputedly the Tribunal
established at Allahabad or at Lucknow has
not framed any such Regulations, therefore,
in proceeding with the matter, it has to be
guided by the principles of natural justice as
well as by some other provisions of the Act
and Rules framed thereunder. The petitioner
has failed to report any violation of the
provisions of the Act or Rules made
thereunder or even the principles of natural
justice. The money which is due for recovery
1432 INDIAN LAW REPORTS ALLAHABAD SERIES
belongs to the public exchequer and is liable
to be recovered from the debtor as well as its
guarantors, therefore, I am of the view that
the principles of natural justice demands to
bring the legal representatives of the debtors
and or the guarantors on record. It is also
pertinent to mention here that the liability
being joint and several, the suit for recovery
is not going to be abated as a whole, thus
once the suit survives even after non
impleadment of the legal representatives of
the defendant No.4 and money is recoverable
from any or all of the defendants as a whole,
there is no harm to allow the application for
substitution of the legal representatives of
defendant No.4. Therefore, I am of the view
that the application for substitution of the
legal representatives of the defendant No.4
moved by the respondent-bank does not
require to be dealt with so technically as it
may defeat the purpose of the Act.

14. The parties also cited some
decisions in support of their submissions
on the point of abatement of case due to
non impleadment of legal representatives
of the deceased within time, but in the
light of the observations made as above, I
do not think it necessary to deal with
those cases.

15. Therefore, no interference is
warranted in the orders impugned. In the
result the writ petition stands dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.381of 2006
Smt. Anaro Devi

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri M.K. Gupta, Sri Pankaj Agarwal

Counsel for the Respondents:
C.S.C., Sri A.K. Yadav

C.P.C.-Order
XLI-Rule-27-Additional
Evidence-at
appellate
stage-after
two
years application filed-allowed by Lower
appellate court without considering the
reasons-precluded to file before Trail
Court-additional evidence can not be-as a
matter of right-held-finding of appellate
court is skeletal-not sustainable-direction
for fresh consideration given.

Held: Para-10
In
the
present
case
the
defendant/appellant wanted to file the
public documents i.e. a government order
and in its application for non-production of
those documents in the trial court no valid
reason has been mentioned. It is presumed
that
the
government
order
of
the
department was in the knowledge of the
officer concerned, but it was not filed
before the trial court. In the application also
no reason has been mentioned that why the
papers were not filed earlier. A party cannot
claim to file additional document as a
matter of right. It has to comply the
ingredients of the provisions of the law. The
appellate court in a casual manner has
allowed the application on the ground that
taking the documents on the record is in the
interest of justice without assigning any
reason why additional document can be
accepted at the appellate stage. It was
obligatory on the appellate court to record
the reasons why it was necessary to allow
the application.

Case Law discussed:
AIR 2008 SC 579; AIR 1998 SC 2276; (2012) 8
SCC 148; 2013(3) AWC 3137(SC); AIR 2008
SC 579.

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)