1

* THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ Civil Revision Petition No.2320 of 2023

% 26.09.2023

Between:

Chaparala Rajasekhar, S/o Dr.C.babu Rao,

Hindu, aged about 51 years, residing at

D.No.7-17-1, Kirlampudi Layout,

Visakhapatnam-530 017.

... Petitioner

And

ICICI Bank Limited, Visakhapatnam Branch,

Represented by its Authorized Signatory and

Area Solution Manager. ... Respondent

DATE OF JUDGMENT PRONOUNCED : 26.09.2023

SUBMITTED FOR APPROVAL :

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

1. Whether Reporters of Local Newspapers

may be allowed to see the judgment? Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters / Journals? Yes/No

3. Whether His Lordship wish to

see the fair copy of the Judgment? Yes/No

RAVI NATH TILHARI, J

DUPPALA VENKATA RAMANA, J

2

* THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

+ Civil Revision Petition No.2320 of 2023

% 26.09.2023

Between:

Chaparala Rajasekhar, S/o Dr.C.babu Rao,

Hindu, aged about 51 years, residing at

D.No.7-17-1, Kirlampudi Layout,

Visakhapatnam-530 017.

... Petitioner

And

ICICI Bank Limited, Visakhapatnam Branch,

Represented by its Authorized Signatory and

Area Solution Manager. ... Respondent

! Counsel for Petitioners : Sri P RAJASEKHAR

^ Counsel for Respondents : -------

< Gist:

> Head Note:

? Cases referred:

1. 2008-2-L.W.1103

2. (2017) 16 SCC 137

This Court made the following:

3

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

Civil Revision Petition No.2320 of 2023

JUDGMENT : (Per Hon‟ble Sri Justice Ravi Nath Tilhari)

Heard Sri P.Raja Sekhar, learned counsel for the

petitioner.

2. This civil revision petition under Article 227 of the

Constitution of India has been filed for the following relief:-

“…pleased to set aside the order dated 01.08.2023

passed in Diary No 1301 of 2023 (unnumbered MA) in

O.A.No.157 of 2009 on me file of Debts Rec overy

Tribunal, Visaknapatnam and allow the Civil Revision

Petition in the interest of justice and pass…”

3. Briefly stated the facts of the case are that, the respondent

ICICI Bank Ltd., Visakhapatnam, filed O.A.No.157 of 2009,

before the Debts Recovery Tribunal Visakhapatnam (in short the

Tribunal) which was allowed against the defendants therein

(the present petitioner was defendant No.4) for realization of the

amount claimed in O.A., fixing liability of the defendants jointly,

severally and personally, and the recovery certificate was issued

vide Order of the Tribunal dated 22.03.2018.

4

4. The petitioner herein, filed Petition Diary No.1301/2023/

unnumbered M.A. in the said O.A. to set aside the Order dated,

22.03.2018 on the ground that it was an ex-parte order.

5. The Registry of the Tribunal raised objections to the

petition IR (MA) 101 of 2023 that “(1) condone delay petition not

filed. (2) This petition is non maintainable without delay

petition”.

6. The petitioner represented the same with an endorsement

which reads as follows:

“It is submitted that this petition is filed under

Sec.22(2)(g) of Recovery of Debts and Bankruptcy Act for

which no period of limitation is prescribed. Further,

provisions of Limitation Act, do not apply to this petition

as held by the Madras High Court in the Judgment

reported in 2008(2) Law Weekly (Page 103). The Hon‟ble

Supreme Court held that the provisions of Limitation Act

will apply only to Application filed under Section 19 of

the Act to Review Petitions filed under Sec.22(2)(e) of the

Act read with Rule 5.A of Debts Recovery (Procedure)

Rules, 1993. Hence, this petition is maintainable

without a separate petition for condonation of delay. In

such cases, the only aspect to be considered is, whether

reasonable grounds are set out in the petition to set

aside ex-parte order”.

5

7. The petitioner‟s endorsement was that the application was

filed under Section 22(2)(g) of the Recovery of Debts and

Bankruptcy Act (for short “the RDB Act”) for which no period of

limitation is prescribed. The Limitation Act also did not apply in

view of the judgments as mentioned in the endorsement (supra).

It was submitted that the petition was maintainable without a

separate petition for condonation of delay.

8. The matter was placed before the Tribunal which by Order

dated 01.08.2023 dismissed the Petition Diary No.1301 of

2023/unnumbered M.A. , finding no merit.

9. Learned counsel for the petitioner while challenging the

Order dated 01.08.2023 submits that the application to set

aside the ex-parte order is maintainable under Section 22(2)(g) of

the Act. For filing the said application there is no period of

limitation prescribed under the Act. The Limitation Act is also

not applicable. Consequently there is no requirement to file any

application under Section 5 of the Limitatio n Act or any

application under the RDB Act to condone the delay. He has

referred to the provisions of Sections 2, 19, 22(2)(g), and 24 of

RDB Act and placed reliance in the Judgment of the Madras

High Court in M/s.Tamil Nadu Merchantile Bank Limited

represented by its Manager, TTK Road Branch Vs M/s

6

G.Vijaya Lakshmi

1 and the Judgment of the Hon‟ble Supreme

Court in International Asset Reconstruction Company of

India Limited Vs. Official Liquidator

2.

10. He further submits that the Tribunal ought to have first

decided the objection with respect to the limitation and the

necessity of the application for condonation of delay. It was only

thereafter it should have proceeded to decide the application on

merits. He submits that the opportunity to argue the matter on

the merits of the application was thus denied to the petitioner.

11. We have considered the submission s advanced by the

learned counsel for the petitioner and perused the material on

record.

12. Now the points for consideration are:

(1) “Whether there is any period of limitation to file

application to set aside the ex-parte award of the

Tribunal? And Whether Section 24 of the RDB Act

applies to an application under Section 22(2)(g) of the

Act?

(2) Whether the petitioner‟s Petition Diary No.1301/

2023/unnumbered M.A. has been dismissed on merits,

without affording an opportunity of hearing to the

petitioner?

1

2008-2-L.W.1103

2

(2017) 16 SCC 137

7

13. Point No.1:

So far as, the first point is concerned, Section 24 of the

RDB Act, provides as under:-

“Limitation—The provisions of the Limitation Act,

1963 (36 of 1963), shall, as far as may be, apply to an

application made to a Tribunal”.

Section 2(b) of the RDB Act defines „application‟ as

under:-

„application‟ means an application made to a Tribunal

under section 19‟.

Section 19 of the RDB Act, provides for an application to

the Tribunal with respect to the matters mentioned therein. Here

an application under Section 22(2)(g) of the Act has been rejected.

This was an application to set aside the ex-parte award passed

on an application under Section 19 of the RDB Act.

14. In International Asset Reconstruction Company of

India Limited Vs. Official Liquidator

3, the Hon‟ble Apex

Court held that Section 24 of the RDB Act, manifestly makes the

provisions of the Limitation Act applicable only to an original

“application” made under Section 19 only. The definition of

“application” under Rule 2(b) cannot be extended beyond what

3

(2017) 16 SCC 137

8

the Act provides for and then make Section 24 of the RDB Act

applicable to an appeal under Section 30(1) of the Act. The

Hon‟ble Apex Court held that any such interpretation shall be

completely contrary to the legislative intent.

15. It is apt to refer paras 1, 11 and 13 of International

Asset Reconstruction Company of India Limited Vs. Official

Liquidator

4 (supra) as under :

“1. Leave granted. A Common question of Law arising

for consideration in both appeals is whether Section 5 of

the Limitation Act, 1963(hereinafter referred to as “the

Limitation Act”), can be invoked to condone the prescribed

period of 30 days, under Section 30(1) of the Recovery of

Debts and Bankruptcy Act, 1993 (hereinafter referred as

“the RBD Act), for preferring an appeal before the

Tribunal, against an order of the Recovery Officer.”

11. An “application” is defined under Section 2(b) of the

RDB Act as one made under Section 19 of the Act. The

latter provision in Chapter IV deals with institution of

original recovery proceedings before a Tribunal. An appeal

lies against the order of the Tribunal under Section 20

before the Appellate Tribunal within 45 days, which may

be condoned for sufficient cause under the proviso to

Section 20(3) of the Act. The Tribunal issues a recovery

certificate under Section 19(22) to the Recovery Officer

who then proceeds under Chapter V for recovery of the

certificate amount in the manner prescribed. A person

aggrieved by an order of the Recovery Officer can prefer

an appeal before the Tribunal under Rule 4, by an

application in the prescribed Form III. Rule 2(c) defines an

“application” to include a memo of appeal under Section

30(1). The appeal is to be preferred before the Tribunal, as

distinct from the Appellate Tribunal, within 30 days.

Section 24 of the RDB Act, therefore, manifestly makes the

provisions of the Limitation Act applicable only to such an

4

(2017) 16 SCC 137

9

original “application” made under Section 19 only. The

definition of an “application” under Rule 2(c) cannot be

extended to read it in conjunction with Section 2(b) of the

Act extending the meaning thereof beyond what the Act

provides for and then make Section 24 of the RDB Act

applicable to an appeal under Section 30(1) of the Act. Any

such interpretation shall be completely contrary to the

legislative intent, extending the Rules beyond what the Act

provides for and limits. Had the intention been otherwise,

nothing prevented the legislature from providing so

specifically.

13. “The RDB Act is a special Law. The proceedings are

before a statutory Tribunal. The scheme of the Act

manifestly provides that the legislature has provided for

application of the Limitation Act to original proceedings

before the Tribunal under Section 19 only. The Appellate

Tribunal has been conferred the power to condone delay

beyond 45 days under Section 20(3) of the Act. The

proceedings before the Recovery Officer are not before a

Tribunal. Section 24 is limited in its application to

proceedings before the Tribunal originating under Section

19 only. The exclusion of any provision for extension of

time by the Tribunal in preferring an appeal under Section

30 of the Act makes it manifest that the legislative intent

for exclusion was express. The application of Section 5 of

the Limitation Act by resort to Section 29(2) of the

Limitation Act, 1963 therefore does not arise. The

prescribed period of 30 days under Section 30(1) of the

RDB Act for preferring an appeal against the order of the

Recovery Officer therefore cannot be condoned by

application of Section 5 of the Limitation Act.”

16. In view of the Law laid down in International Asset

Reconstruction Company of India Limited Vs. Official

Liquidator

5 (supra), the application under Section 24 of the

RDB Act means „original application under Section 19‟. An

application under Section 22(2)(g) of the RDB Act is not an

application under Section 19 of RDB Act.

5

(2017) 16 SCC 137

10

17. In M/s.Tamil Nadu Merchantile Bank Limited the

Madras High Court held that the provisions of the Limitation Act

do not apply to application under Section 22(2)(g) of the RDB

Act.

18. From the aforesaid legal provisions as also Judgments

mentioned above, there is no dispute that the provisions of the

Limitation Act are not applicable to any application, except the

original application under Section 19 of RBD Act.

19. Learned counsel for the petitioner submitted that once the

Limitation Act does not apply there would be no question of

filing any application seeking condonation of delay in filing the

application under Section 22(2)(g) of the RDB Act. He may be

right in his submission but then an application for setting aside

the ex-parte award/order would not be maintainable at all, after

the period for filing such an application under Section 22(2)(g).

Then after the expiry of limitation period, no such application

would lie even along with application for condonation of delay as

Section 5 of the Limitation Act does not apply.

20. The question therefore arises if the RDB Act lays down any

prescribed period within which an application to set aside an ex-

parte order is to be filed or such application can be preferred, at

11

any time. In our view, it cannot be, that because, period if not

prescribed by the statute, the applicant is at liberty to file the

application under Section 22(2)(g) at any point of time.

21. We may refer to Section 22 of the RDB Act, which reads as

under:

“22. (1) The Tribunal and the Appellate Tribunal shall

not be bound 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 purposes 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 and enforcing the attendance of any

person and examining him on 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

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section 195 and Chapter XXVI of the Code of Criminal

Procedure, 1973 (2 of 1974)”.

[(4) For the purpose of proof of any entry in the „bankers

books‟, the provisions of the Bankers‟ Books Evidence

Act, 1891 (18 of 1891) shall apply to all the proceedings

before the Tribunal or Appellate Tribunal.]

22. Section 22(2) thus, provides that the Tribunal shall have

for the purposes 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, inter alia, setting aside an order of dismissal of any

application for default or any order passed by it exparte. The

period of limitation within which the civil court can entertain an

application for setting aside an order passed ex-parte is 30 days.

The civil Court can entertain such an application even after the

period of 30 days, if it is accompanied by an application under

Section 5 of the Limitation Act for condonation of delay. But in

our view when it comes to the Tribunal which enjoys the same

power as of the civil court in the matter of setting aside an

ex-parte order, the period of limitation within which such power

can be exercised, shall be 30 days as is applicable to the civil

Court. So far as the power of the civil court beyond the period of

limitation, by virtue of the applicability of the Limitation Act is

concerned, the same cannot be exercised by the Tribunal, in

view of the specific provision of Section 24 of RDB Act, which

13

makes applicable the provisions of the Limitation Act only in

relation to an application under Section 19, which has been

interpreted by the Hon‟ble Apex Court as an original application.

23. The intention of the Legislature is to give finality to the

orders passed by the Tribunal in the main O.A. subject to filing

of appeal within the specified period. If the order is passed

ex-parte, the remedy is to file appeal or to apply for setting aside

the ex-parte order, but that is to be done within the period of

limitation.

24. Consequently, we hold that the period of limitation for

filing an application to set aside an exparte order shall be 30

days from the time limitation period starts to run. But after

expiry of such period of 30 days, the application under Section

22(2)(g) cannot be maintained being barred by Limitation and

there being no provision for condonation of delay.

Point No.2:

25. The next submission of the learned counsel for the

petitioner is that the petitioner was not heard on the merits of

the application, though the same has been rejected on merits.

26. We find that the opportunity of hearing was there to the

petitioner, to argue on the merits of the application. On perusal

14

of the order, we find that the Tribunal recorded that the

defendants there in, including the present petitioner, appeared

in O.A. Requested time to file written statement. For filing of the

written statement, the matter was adjourned on so many dates.

But, in spite, thereof, they did not file the written statement. The

opportunity to file written statement was closed. The case was

fixed for evidence on 26.05.2012. On 26.05.2012, the learned

counsel appearing for the petitioners i.e., defendant Nos. 1, 2

and 4 requested time to file petition to reopen the matter, for

filing written statement. On 24.08.2022 that order was recalled.

Thereafter, defendant No.1 filed written statement and

defendant Nos. 2 and 4 adopted the written statemen t of the

defendant No.1. The written statements so filed were taken on

record subject to the condition of imposing costs. But the order

of payment of cost was not complied, in spite of time having

been granted on various dates 17.10.2012, 26.12.2012 and

08.03.2013. Consequently, after giving number of opportunities,

the Tribunal passed order that the written statements so filed by

the defendants shall be ignored as the conditional order to take

the written statement on record was not complied. The order

was also passed to proceed ex-parte against defendant Nos. 1, 2

and 4. On 22.03.2018 the final order was passed in O.A. Against

the said order dated 22.03.2018, unnumbered petition „Petition

15

Diary No.1301/2023/unnumbered M.A.‟ was filed after almost

five (5) years for setting aside.

27. The Tribunal has also recorded that the defendant No.4

had knowledge of the case, was served with summons and had

been given sufficient time, which has not been disputed .

By following the principles of Law laid down by the Hon‟ble Apex

court in the case M/s Jhon Impex (Pvt) Ltd. And another

Vs.Athul Kapur and others, in which the Hon‟ble Apex Court

also referred to the case of Sunil Poddar & Others Vs.Union

Bank of India (2008) 2 SCC 326 , the Tribunal rejected the

application under Section 22(2)(g) of the petitioner.

28. In Sunil Poddar & Others Vs.Union Bank of India

(2008) 2 SCC 326 , the Hon‟ble Apex Court considering the

amended provisions of Order 9 Rule 13 CPC held as under :

“23. It is, therefore, clear that the legal position under

the amended Code is not whether the defendant was

actually served with the summons in accordance with

the procedure laid down and in the manner prescribed

in Order 5 of the Code, but whether (i) he had notice of

the date of hearing of the suit; and (ii) whether he had

sufficient time to appear and answer the claim of the

plaintiff. Once these two conditions are satisfied, an ex

parte decree cannot be set aside even if it is established

that there was irregularity in service of summons. If the

court is convinced that the defendant had otherwise

knowledge of the proceedings and he could have

appeared and answered the plaintiff's claim, he cannot

put forward a ground of non-service of summons for

setting aside ex parte decree passed against him by

16

invoking Rule 13 of Order 9 of the Code. Since the said

provision applies to the Debts Recovery Tribunals and

the Appellate Tribunals under the Act in view of Section

22(2)(g) of the Act, both the Tribunals were right in

observing that the ground raised by the appellants

could not be upheld. It is not even contended by the

appellants that though they had knowledge of the

proceedings before DRT, they had no sufficient time to

appear and answer the claim of the plaintiff Bank and

on that ground, ex parte order deserves to be set aside.”

29. In the present case, the petitioner was served with

summons and appeared before the Tribunal. So, the law as in

Sunil Poddar & Others Vs.Union Bank of India (2008) 2 SCC

326 (Supra) applies with greater force.

30. On specific quarry made to the learned counsel for the

petitioner, as to on what ground, the petition under Section

22(2)(g) was filed, to set aside the ex-parte order, he submits

that the copy of the final order dated 22.03.2018 was not served

in terms of Section 19(21) of RDB Act. He submits that it was

the duty of the Tribunal to serve final order under Section

19(21).

31. Section 19(21) of the RDB Act reads as under:

“The Tribunal shall send a copy of every order passed

by it to the applicant and the defendant”.

32. Section 19(21) thus provides that the Tribunal shall send

copy of every order passed by it to the defendants as well.

17

33. However, we are of the considered view that even if the

copy of the final order and recovery certificate was not sent to

the petitioner/defendant No.4, that cannot be a reason or cause

for not preferring the application under Section 22(2)(g) before

the Tribunal. The petitioner had the summons and had

appeared in the case. If the copy of the final order was not sent

to the petitioner that would not prevent the applicant from filing

application to set aside ex-parte order. The reason is obvious for

filing application to set aside the ex-parte order copy of the final

order would not be required. It is not that only after service of

the copy of the order the application would be maintained or

copy of the order was required to be annexed to an application

to set aside ex-parte order. We are of the view that an

application to set aside ex-parte order is to show the sufficient

cause for non appearance on the date fixed, which has nothing

to do with the merits of the ex-parte order. It is not a case of

filing of appeal against the final order where the grounds on the

merit are to be raised in memo of appeal.

34. We are not convinced with the submission advanced that

the petitioner was not afforded opportunity of hearing. The order

was passed with due opportunity of hearing to the petitioner.

35. On point No.1 we hold as under :

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i) that the period of Limitation for filing an application under

Section 22(2)(g) of RDB Act to set aside an ex-parte order before

the Tribunal shall be 30 days, as within such period the

application is maintainable by the Civil Court. It follows from

Section 22(2) of RDB Act itself, which confers the same powers

on the Tribunal as on the civil Court in respect of inter alia, an

application under section 22(2)(g).

ii) that there would however be no power with the Tribunal to

entertain such an application beyond 30 days period from the

start of the Limitation period, as in view of Section 24 of the

RDB Act, the provisions of Section 5 of the Limitation Act does

not apply.

36. On point No.2 we hold that the impugned order has been

passed with due opportunity of hearing to the petitioner.

37. We do not find any illegality in the order impugned. The

civil revision petition has no merit.

38. In the result, the Civil Revision Petition is dismissed.

39. Learned counsel for the petitioner at this stage submits

that against the final order of the Tribunal, dated 22.03.2018,

the petitioner has the remedy to file the appeal under Section 20

19

of the RDB Act. Be that as it may, it is for the petitioner to

choose the remedy, if the Law so permits, subject to the

provisions of the RBD Act and the Law of Limitation.

40. No order as to costs.

Consequently, miscellaneous petitions, if any, pending

shall stand closed.

_______________________________

JUSTICE RAVI NATH TILHARI

________________________________________

JUSTICE DUPPALA VENKATA RAMANA

Date: 26.09.2023

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THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

AND

THE HON’BLE SRI JUSTICE DUPPALA VENKATA RAMANA

CIVIL REVISION PETITION No. 2320 of 2023

(Per Hon‟ble Sri Justice Ravi Nath Tilhari)

Date: 26.09.2023

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