M/S Rodenia (India) & Ors. v. Syndicate Bank

1. This appeal impugns two orders/judgments. One is the main judgment which has been passed on merits decreeing the suit of the respondent-bank for recovery of moneys. The second order and which is really the impugned order is dated 14.9.2006 by which the court below has dismissed the application under Order 9 Rule 13 of Code of Civil Procedure, 1908 (CPC) on the ground that the application ought to have been filed before the Debt Recovery Tribunal (DRT) inasmuch as on the date of execution of the decree the amount would be in access of Rs.10 lacs. 2014:DHC:3089

2. The issue is covered against the appellant/defendant by the judgment of a learned Single Judge of this Court in the case of Punjab & Sind Bank Vs. Rama Minerals and Chemicals & Ors. (2003) 1 BC 388 and which holds that the application under Order 9 Rule 13 CPC has to be filed before the DRT and not before the civil court once the decretal amount exceeds Rs.10 lacs. I am bound by the judgment of learned Single Judge of this Court.

3. It may also be noted that the Full Bench of the Kerala High Court in the case of C.J. Glenny Vs. Catholic Syrian Bank Ltd. (2004) 1 BC 85 (FB) has held that once the amount due as on the date of filing of the execution application would be more than Rs.10 lacs, not only the execution application, but also all the incidental proceedings including for setting aside the exparte judgment and decree under Order 9 Rule 13 CPC, will have to be filed before the DRT.

4. The only mistake in the impugned order dated 14.9.2006 is that the application has been dismissed whereas the application under Order 9 Rule 13 CPC should have been transferred for decision to the DRT.

5. Therefore, the impugned order dated 14.9.2006 is modified by ordering that instead of the application under Order 9 Rule 13 CPC of the appellant being dismissed the same is transferred for decision to the concerned DRT. Either of the parties may now take appropriate action in accordance with this order by moving of an application before the concerned DRT and the concerned DRT will thereafter summon the record of the suit from the concerned civil court.

6. It is clarified that in case the appellant wants to challenge the judgment and decree on merits he is entitled to do so by filing the requisite appeal in accordance with law, but in the present appeal against the order dismissing the application under Order 9 Rule 13 CPC, there can be no challenge of a first appeal under Section 96 CPC, and which appeal also in any case will have to be filed in accordance with law.

7. Appeal is accordingly disposed of with the aforesaid observations, leaving the parties to bear their own costs. JULY 03, 2014 VALMIKI J. MEHTA, J. Ne