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WP (C) No.2067/2013 PEGASUS ASSETS RECONSTRUCTION PVT. LTD. ..... Petitioner
Through: Mr. Rook Ray & Mr. P.K. Mullick, Advs.
Through:
HON'BLE MS. JUSTICE INDERMEET KAUR WP (C) No.2067/2013
03.04.2013 ..... Respondents The present writ petition under Article 226 of the Constitution of
India has been filed seeking to assail the order passed by DRT-II dated
2.11.2012 upheld in the appeal by the DRAT vide order dated 27.12.2012.
The impugned orders arise from an application filed by original defendants 2 & 3 who were the guarantors for the loan which formed subject matter of adjudication in OA No.75/2000 pursuant whereto a recovery certificate was issued. It may be noticed that it is an ex parte decree passed on 2.6.2006.
In terms of the order dated 2.6.2006 original defendants 2 & 3
(defendant No.l-Company had gone into liquidation) were held liable for a sum of ~15,14,31,235.00 in pursuance of the agreements. The application was filed by the said two defendants after a period ofalmost two (2) years
WP (C) No.2067/2013 Page 1 of4 2013:DHC:7202-DB seeking to correct what they stated were apparent mistakes/typographical errors while passing the order.
We have heard learned counsel for the petitioners and have perused the impugned orders. We have no doubt that the order dated 2.6.2006 has apparently been passed without analyzing the documents and the prayers made in the OA. Possibly there was no proper assistance forthcoming even from the creditor (the petitioner before us has purchased the debt) which resulted in a factually incorrect order having basic mistakes. The fact that proceedings are ex parte does not imply that the Presiding Officer would not be required to go through the documents and the OA and assure himselfthat the order being passed is within the parameters of the contracts entered into between the parties. This principle was violated and has, thus, rightly been corrected by the DRT vide order dated 2.11.2012.
There were certain aspects on which correction was permitted where the guarantors were not even the guarantors or the total debt realizable by them was limited by maximum ceiling limit. Qua these corrections learned counsel for the petitioner has not made any submissions.
The sum & substance ofthe submissions ofthe learned counsel for the petitioner is three-fold:
ORDER
1. That the appli?ation was filed more than two (2) years after the recovery certificate was issued and, thus, was barred by time.
11. There is no power ofreview.
111. The Agreement inter se the parties itself envisaged compound interest and, thus, that compound interest ought not to have been reduced to simple interest by the impugned order. He clarifies that in the prayer clause though undisputedly only simple interest has been prayed for but that was apparently a mistake by the creditor! WP (C) No.2067/2013 Page 2 of[4] We have examined the aforesaid contentions. The Presiding Officer of the DRT has penned down a well reasoned order analyzing the plea of limitation and coming to a conclusion that there was power vested in the Tribunal under Section 19 (25) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the 'said Act') to give directions to prevent abuse of its process or to secure the ends of justice. Further under Section 26 (2) of the said Act even after issuing the recovery certificate the Presiding Officer has power to withdraw the 0ertificate or correct any clerical or arithmetical mistake. This power has to be read with Rule 18 of the Debts Recovery Tribunal (Procedure) Rules,
1993. We are unable to accept the contention of the learned counsel for the petitioner that in effect a review power has been exercised beyond time. All that the impugned order did was to correct the obvious arithmetical and clerical mistakes. The ends ofjustice required that such mistakes ought to be corrected. In fact, it is surprising that when a document did not affix the liability on the guarantors, yet as per the original certificate issued they were made liable. Fortunately on this aspect learned counsel for the petitioner made no submissions. It appears that the real rub lies in the fact that the petitioner envisaged that compound interest would be payable on the amount and may have purchased the debt on that basis. However, the fact remains that after having discussed the contractual documents, the prayer is specific in its terms seeking only simple interest. It is not for the purchaser of the debt like the petitioner to state that the OA filed was not properly worded qua the prayer clause. The prayer clause was never amended and the DRT could not have granted interest beyond the prayer made. WP (C) No.2067/2013 Page 3 of[4] In our view, keeping in mind the aforesaid parameters this is hardly a fit case for exercise of extraordinary jurisdiction under Article 226 of the Constitution of India to interfere with this order of the DRT which has been affirmed by the DRAT correcting the obvious mistakes. Dismissed. CM No.3933/2013 (Stay) In view of the dismissal of the writ petition, the application does not survive for consideration and the same stands disposed of.
APRIL 03, 2013 b'nesh WP (C) No.2067/2013 SANJ~~~L, J. INDERMEET KAUR, J. Page 4 of[4]