Anjuli Palo ORDER
Anjuli Palo, J.
1. This civil revision under section 115 of the Code of Civil Procedure, 1908 (for short "CPC") has been filed by the applicants challenging the order dated 03.10.2018 passed by the XIIth Additional District Judge, Bhopal in Civil Suit No. 837-A/2014 whereby their application under Section 11 r/w 151 of CPC has been dismissed.
2. The respondent being proprietor of M/s. Nirman Sudha availed loan facility of Rs. 293.73 lacs from the applicants-Housing & Urban Development Corporation Limited [hereinafter referred to as the "HUDCO"] for the purpose of construction of project.
3. In the year 2014, the respondent as plaintiff filed a civil suit being C.S. No. 837-A/2014 arraying the applicants as defendants for recovery of Rs. 34,90,940 alleging that HDCO charged excessive rate of interest than the agreed rate mentioned in sanction letter. The aforesaid civil suit is pending adjudication before XIIth ADJ, Bhopal.
4. The respondent failed to adhere to the financial discipline in repaying the loan amount, therefore, the HUDCO classified the loan account of respondent as NPA w.e.f. February, 2015 with an outstanding amount of Rs. 39.21 lacs. Since the respondent could not pay the outstanding dues, the applicants filed Original Application No. 115/2015 under section 19 of the Recovery of Debts Due to Banks & Financial Instructions Act, 1993 for recovery of Rs. 41,04,137/- before the Debts Recovery Tribunal, Jabalpur [for brevity the "DRT"]. The DRT vide its judgment dated 16.3.2016 allowed the original application holding that HDCO is entitled to recovery of Rs. 41,04,137/- alongwith pendente lite and future interest at the rate of 12% p.a.
5. The respondent thereafter filed Misc. Application No. 45/2016 for setting aside ex parte judgment dated 16.3.2016 which was dismissed by the DRT on 08.8.2017.
6. During pendency of Civil Suit No. 837-A/2014, in September, 2018 the applicants/defendants filed an application under section 11 r/w 151 of CPC claiming dismissal of the suit on the ground that DRT has already passed judgment in favour of the applicants making them entitled to recover the amount from the respondent/plaintiff. The respondent filed its reply to aforesaid application u/s. 11 r/w 151 CPC. The trial Court by impugned order dated 03.10.2018 dismissed the application of the applicants holding that the Tribunal is not civil Court and, therefore, suit of the respondent/plaintiff is maintainable.
7. Learned counsel for the applicants/HUDCO submitted that trial Court erred in rejecting the application under section 11 r/w 151 CPC. The DRT has already passed judgment, and recovery certificate has also been issued in favour of the applicants and, therefore, nothing survives for adjudication in the civil suit filed by the respondent. It ought to have been appreciated that the subject matter of civil suit is directly and substantially covered with the issue involved in O.A. No. 115/2015. Section 34 of the Recovery of Debts & Bankruptcy Act, 1993 is having an overriding effect over other laws and, therefore, trial Court cannot take contrary view and hold that DRT is not a Civil Court.
8. Learned counsel for the caveator has opposed the contentions made by learned counsel for the applicants. He further submitted that principles of res judicata are not applicable in proceedings of DRT. Therefore, learned trial Court has rightly dismissed the application of the applicants holding that DRT is not the Court. Thus, the impugned order passed by the trial Court is just and proper.
9. Heard the learned counsel for the parties. Perused the record. It is admitted that loan was taken by the respondent from the applicants/HUDCO and not repaid by her. All the relevant documents have been signed by the respondent in favour of the HUDCO, but huge amount is still due against the respondent. All the relevant issues were properly adjudicated by the DRT. The judgment passed by the DRT has not been challenged by the respondent before any appellate forum. The judgment has been passed by the DRT under the special provision of law viz. Recovery of Debts Due and Bankruptcy Act, 1993. It is apparently clear that before DRT the counsel for the respondent appeared on number of times, but he did not file the written statement. Only thereafter the judgment dated 16.3.2016 has been passed against the respondent. In original application the main and substantial questions were same regarding the liability of the respondent for repayment of huge loan amount.
10. In this regard it is worth referring to decision of Delhi High court in the case of Standard Chartered Bank Vs. Sumit Bansal, wherein in paragraph 27 it has been observed as under:-
27. Likewise, the petitioner submits that proceedings before the DRT cannot be considered a "suit". Without going into the meaning of the term "suit", this Court finds that the principle of Section 10 is to avoid multiplicity of proceedings and conflicting findings being recorded by two for a that are equally competent to hear the issues. In this light, technical arguments like whether a proceeding can be termed a "suit" or not cannot be determinative of the dispute. In the present case, the following observations in Nagabhushana (supra) ought to be kept in mind in this regard:
"14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, "interest reipublicae ut sit finis litium" which means that it is in the interest of the State that there should be an end to litigation and the other principle is "nemodebet his veari, siconstet curiae quod sit pro un aeteademn cause" meaning W.P.(C)8592/2011 Page 21 thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.
15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation."
11. Similarly, in the case of Sunayana Malhotra and others Vs. ICICI Bank, MANU/DE/2588/2009 : 2009 (113) DRJ 31 the Delhi High Court held as under:-
11. I may however record that the possibility of a conflict in the judgment of this court in this suit and of the order of the DRT in the proceedings, if any, initiated by the defendant against the plaintiffs before the DRT cannot be ruled out. The relief claimed by the plaintiffs in this suit if granted would tantamount to holding the plaintiffs not liable for any claims of the defendant against the company. In the event of proceedings against the plaintiffs being initiated before the DRT, the DRT would also be called upon to decide whether the guarantees furnished by the plaintiffs stand discharged or not. It is this aspect which had bothered this court in even admitting the suit. However, I find Nahar Industrial Enterprises Ltd. to have dealt with this aspect of the matter also. It has in paras 44 & 45 of the judgment referred to judgment of this court in Cofex Exports Ltd. Vs. Canara Bank MANU/DE/0500/1997 : AIR 1997 Delhi 355. This court had held that finality shall attach to the findings arrived at and reached by each of the two within its respective jurisdictional competence; issues heard and decided by the DRT shall operate as res judicata and shall bind the parties in the suit-however the civil court shall be free to decide such issues as lie within its jurisdictional competence and if the civil court must decide an issue seized by it and within its competence and if there be an unavoidable conflict between the findings of civil court and the DRT, the findings of the civil court would override and supercede the findings of DRT. It thus appears that in such eventuality, if the civil court has decided the matter first, the finding of the civil court would be binding on the DRT.
12. In view of aforesaid fact situation and in the light of above decisions, this Court is of the opinion that the DRT is also a civil Court and its order would operate as res judicata. Hence, the impugned order is not sustainable. The trial Court ought to have allowed the application filed by the applicants under section 11 r/w 151 CPC and dismissed the suit filed by the respondent/plaintiff by holding that suit is barred by principles of res judicata and holding that suit.
13. In the result, the revision is allowed.
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