Bhupendra v. State Bank of Hyderabad & Ors.

1. Thesetwo writpetitions have been preferred bythe petitionerto assail firstly the order dated 25.10.2016 passed by the learned Debt Recovery 2019:DHC:7812-DB Appellate Tribunal (DRAT) rejeeting the prayer made by the petitioner/appellant to seek exemption from pre-deposit before the learned DRAT foi healing ofhis appeal againstthe order passed bythe DRT dated 18.08.2015 in Original Application No.47/2006. In WP(C)No.2186/2017 the petitioner has assailed the order dated 06.01.2017passed by the learned DRAf dismissing the petitioner's Appeal No.l52 of2016 on account of pre-deposit not being made in terms ofthe earlier order dated 25.10.2016, which has beenimpugned in W.P.(C)No.2185/2017.

2. The State Bank ofHyderabad had instituted the Original Application No.47/2006 impleading the Central Banlc ofIndia as defendant no.l and Shii Sanjib KumarSahaand ShriBhupendra as defendantnos.2&3. Atthe instance ofthe petitioner/defendant no.3 Shri Bhupendra,the Central Bank ofIndia had issued aletter ofcreditin favour ofdefendantno.2-Shri Sanjib Kumai Saha. fhe State Bank ofPlyderabad was the negotiating bank of Shii Sanjib Kumar Saha. The letter ofcredit was invoked by Shri Sanjib KumarSaha/Defendantno.2and the StateBanlcofHyderabad paid asum of Rs.42,23,800/-to him in accordance withtheterms ofthe LC.On accountof a dispute between defendant nos.[2] & 3, the Defendant no.3 instituted pioceedings beforethe learned Civil Judge,Chandrapurto seek astay ofthe paymentofthe amountcovered by the LC. Initially a stay was obtained by defendant no.3 on 01.01.2003 which stay continued for about three years and was vacated finally on 16.11.2005. Since the payment was not made to the StateBankofHyderabad,itpreferredthe aforesaid OriginalApplication. Duiing the pendency ofthe original application,payment was made to State Bank of Hyderabad by the Central Bank of India of the LC amount on 28.03.2006. The only issue that, therefore, arose before the Tribunal was with regard tothe paymentofintereston delayed release oftheLC amount bythe CentralBanktotheStateBank ofHyderabad. The Tribunalallowed the Original Application vide its order dated 18.08.2005 and directed the CentralBankofIndiato makepaymentofsimpleinterestattherateof11% per annum, from 06.01.2003 till 28.03.2006 on the LC amount of Rs.42,23,800/-within sixty days. Italsoheldthatthe CentralBank ofIndia would beatlibertytoclaimtheamountfromthedefendantnos.2&3asper law.

3. The petitioner as well as the Central Bank of India were both aggrieved by the directions issued by the DRT. So far as the petitioner is concerned,it was aggrieved by the fact that the liability under the LC was found to be that of the Central Bank ofIndia and yet liberty had been gianted to the Central Bank ofIndia to claim the amountinter alia from the petitioner/defendantno.3. The petitionerthen preferred its appealbefore the learned DRAT which, as aforesaid, has eventually been dismissed on account of non-deposit of the amount as directed under the order dated 25.10.2016.

4. The submission oflearned counsel for the petitioner is that since no recovery was directed by the learned DRT againstthe petitioner,the learned DRAT wasnotjustified in refusingto grantexemptiontothe petitionerfrom making the pre-deposit.

5. On the other hand,learned counsel for the respondents submits that the present petitions have become infruetuous inasmuch as while deciding the appealpreferred bythe CentralBankofIndia being AppealNo.162/2016 on 17.09.2018(which is assailed in WP(C)No.12167/2018),the order dated 18.08.2015 passed by the DRT, which was assailed by the petitioner in "V AppealNo.152/2016,hasbeenconsideredinitsentirety.

6. Wehaveheardlearnedcounselsinallthethreewritpetitionsnamely in WP(C)No.2185/2017&2186/2017and in WP(C)No.12167/2018. We are ofthe view that the learned DRAT was not completely justified in refusingto grantexemption from pre-depositto the petitioner,considering fact that the DRT had directed recovery in favour of State Bank of Hyderabad from the Central Bank ofIndia,and notfrom the petitioner as also thefactthatthe Central BaricofIndia's Appealagainstthesame order wasin anyeventbeingconsidered. ThelearnedDRATshouldhavegranted exemption fiom pie-depositand,therefore,the orderdated 25.10.2016 does X:. "otappearto becorrect. Consequently,thedismissaloftheappealpreferred by the petitioner on account of non-compliance of the order dated 25.10.2016,perse,cannot be sustained. we find that since the petitioner was heard in the appeal preferred bythe CentralBankofIndia beingAppealNo.162/2016,and since wehavealsoheardsubmissionsoflearnedcounselsintheseproceedings,no prejudice has been suffered by the petitioner and, therefore, we are not inclinedtosetasidetheimpugnedordersassailedinthesetwowritpetitions.

8. We,therefore,dispose ofthese petitions in the aforesaid terms while observing that the present order be read along with the order passed in WP(C)No.12167/2018.

REK APRIL 22,2019/aa L VEPIN SA