Appeal before DRT (Debt Recovery Tribunal)
In this article, we will discuss the stay in proceedings and process of recovery of NPA.
Appeal to the Appellate Tribunal of DRT
Section 20 deals with an Appeal to an Appellate Tribunal at DRT
- Any person who is aggrieved by an order made, or deemed to have been made, by the Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.
- Not a single appeal shall lie to an Appellate Tribunal from the order made by the Tribunal with a consent of the parties.
- Every appeal made shall be filed within the period of 30 days from date on which the copy of an order made, or believed to have been made by the Tribunal is received by him & it shall be in the form & be accompanied by such a fee as may be prescribed: Provided that an Appellate Tribunal may entertain such an appeal after an expiry of the said period of 30 days in case it is satisfied that there was adequate cause for not filing it within the stipulated period.
- On receipt of the appeal made under section 181 of the Insolvency and Bankruptcy Code, 2016, the Appellate Tribunal (DRAT) may, after giving an opportunity of being heard to the parties to the appeal, pass such an order thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
- The Appellate Tribunal (DRAT) shall send A copy of every order made by it to the parties to an appeal & to the concerned Tribunal.
- The appeal that is filed before the Appellate Tribunal (DRAT) shall be dealt with by it as expeditiously as possible &endeavor shall be made by it to dispose of an appeal finally within 6 months from the date of the receipt of an appeal.
Section 21 provides that where the appeal is preferred by any person from whom the amount of the debt is due to the bank or a financial institution or a consortium of banks or the financial institutions, such an appeal shall not be entertained by an Appellate Tribunal except such a person has deposited with an Appellate Tribunal [50%] of the amount of the debt so due from him as determined by Tribunal Provided that an Appellate Tribunal may, for the reasons to be recorded in writing, reduce an amount to be deposited by such an amount which shall not be less than 25% of the amount of such a debt so due to being deposited under this section.
Powers of the Tribunal (DRT) and the Appellate Tribunal
Section 22 deals with the procedure & powers of a Tribunal & the Appellate Tribunal. Sub-section (1) provides that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice.
The proceedings before the Debt Recovery Appellate Tribunal (DRAT) is governed by Debt Recovery Appellate Tribunal (Procedures) Rules, 1993. In addition, Section 22 of the Act permits the Tribunal and the Appellate Tribunal to regulate their own procedure including the places at which they shall have their settings. Sub-section (2) provides that 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 a Code of the Civil Procedure, 1908, while trying the suit, in respect of the following matters, namely:
- Summoning& enforcing an attendance of any person & examining him on the Path;
- Requiring the discovery & production of documents;
- Receiving the evidence on affidavits;
- Issuing commissions for an examination of witnesses or the documents;
- Reviewing its decisions;
- Dismissing an application for default or deciding it ex parte;
- Setting aside any order of dismissal of an application for the default or any order which is passed by it ex parte;
- Any other matter which may be prescribed. Sub-section (3) provides that 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, 1860 and the Tribunal or the Appellate Tribunal shall be deemed to be a civil court for all the purposes of Section 195 & Chapter XXVI of Code of Criminal Procedure, 1973. Sub-section (4) provides that [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 a Tribunal (DRT) or Appellate Tribunal (DRAT).Section 22A provides that the Central Government may, for the purpose of this Act, by rules, lay down uniform procedure consistent with the provisions of this Act for conducting proceedings before the (DRT) Tribunals & (DRAT) Appellate Tribunals.
Right to Legal Representation and Presenting Officers
Section 23(1) provides that a Bank or a Financial Institution making an application to a Tribunal or an appeal to an Appellate Tribunal may authorize one or more legal practitioners or any of its officers to act as the (P.O) Presenting Officers & every person so authorized by it may present its event before the Tribunal or the Appellate Tribunal. Sub-section (2) states that the defendant may either appear in person or authorize one or more legal practitioners or any of his or its officers to present his or its case before the Tribunal or the Appellate Tribunal.
Section 24 states that the provisions of the Limitation Act, 1963, shall, as far as may be, apply to an application made to a Tribunal.
Recovery of Debt Determined by Tribunal
Modes of recovery of debts Section 25 states that the Recovery Officer shall, on receipt of copy of the certificate may proceed to recover the amount of debt specified in certificate by 1 or more of the following modes, namely:—
- Attachment and sale of the movable or immovable property of the defendant; [(a) taking possession of property over which security interest is created or any other property of the defendant and appointing receiver for such property and to sell the same; ]
- Arrest of a defendant & his detention in the prison;
- Appointing the receiver for the management of the movable or immovable properties of a defendant;
- Any other mode of the recovery as may be prescribed by the Central Government. (C.G)
Other Modes of Recovery
Section 28 prescribes the other modes of recovery.
- Where the certificate has been issued to a Recovery Officer under the act, the Recovery Officer may, without prejudice to modes of recovery specified in it, recover an amount of the debt by any 1 or more of modes provided under this section.
- If any amount is due from any person to a defendant, a Recovery Officer may require such a person to deduct from the said amount, an amount of debt due from the defendant under this Act & such person will comply with any such requisition & shall pay a sum so deducted to credit of the Recovery Officer:Provided that nothing shall apply to any part of the amount exempt from the attachment in the execution of the decree of a civil court under the Code of Civil Procedure, 1908.
- A Recovery Officer may, at any time or from time to time, by the notice in writing, require any person from whom money is due or may become due to the defendant or to any person who holds or may subsequently hold money for or on account of a defendant, to pay to the Recovery Officer either forthwith upon any amount of money becoming due or being held or within the time specified in the notice (which is not being before the money becomes due or is held) so much of the money as is sufficient to pay an amount of the debt due from defendant or the whole of the amount of money when it is equal to or less than that amount.
- The notice may be issued to any person who holds or who may subsequently hold any money for or on account of the defendant jointly with any other person & for a purpose of the shares of the joint holders in such amount shall be assumed, until the contrary is proved, to be equal.
- The copy of the notice shall be forwarded to a defendant at his last address known to the Recovery Officer and in the event of the joint account to all the joint holders at their last addresses known to a Recovery Officer.
- Same as otherwise provided, every or all the person to whom the notice is issued shall be bound to comply with such notice, & in particular, where any such notice is issued to the post office, bank, financial institution, or an insurer, it shall not be necessary for any passbook, deposit receipt, policy or any other document which is to be produced for a purpose of any entry, endorsement or is likely to be made before the payment is made notwithstanding by any rule, practice or requirement to the contrary.
- Any claim with regards to any property in relation to which the notice has been issued arising after the date of the notice shall be void as against any demand contained in such a notice.
- Where the person to whom the notice is sent objects to it by the statement on oath that the sum demanded or the part thereof isn’t due to the defendant or that he doesn’t hold any amount of money for or on account of a defendant, then, nothing contained in the Act shall be believed to require such person to pay any amount of the money or part thereof, as the case may be, but in case it is discovered that such a statement was false in any material particular, then such a person shall be personally liable to Recovery Officer to the extent of his own liability to a defendant on the date of the notice, or to the extent of a defendant’s liability for any amount or sum due under this Act, whichever is less.
- A Recovery Officer may, at any time or from time to time alter or revoke any such notice or may extend the time for making such a payment in pursuance of such notice.
- The Recovery Officer shall grant the receipt for any amount paid in the compliance with the notice issued &a person so paying shall be completely discharged from his liability to the defendant to an extent of the amount of money so paid.
- Any person who is discharging any liability to the defendant after a receipt of a notice under this subsection shall be personally liable to Recovery Officer to the extent of his own liability to the defendant so discharged or to the extent of defendant’s liability for any debt due under this Act, whichever is less.
- If a person to whom the notice under is sent fails to make a payment in fulfillment thereof to the Recovery Officer, he shall be deemed to be the defendant in default in respect of an amount specified in the notice & further proceedings may be taken against him for the realization of an amount as if it was the debt due from him, in a manner provided in the act& the notice shall have the same effect as an attachment of the debt by Recovery Officer in exercise of his powers.
- A Recovery Officer may apply to the court in whose custody there is a money belonging to the defendant for payment to him of an entire amount of such a money, or if it’s more than an amount of debt due, an amount of money sufficient to discharge the amount of debt so due. [(4A) The Recovery Officer may, by an order, at any stage of execution of the certificate of recovery, require any person, & in case of the company, any of its officers against whom or which the certificate of recovery is issued, to declare on the affidavit the particulars of its assets.]
- The Recovery Officer may recover any amount of debt due from a defendant by sale of his movable the certificate
Validity of Certificate and Amendment There of
Section 26 deals with a Validity of the certificate & amendment thereof.
- It shall not be open to the defendant to dispute before the Recovery Officer for the correctness of the amount of money specified in the certificate, & no objection to a certificate (NOC) on any other ground shall also be entertained by the Recovery Officer.
- Notwithstanding the issue of the certificate to a Recovery Officer, the (P.O) Presiding Officer shall have the power to withdraw a certificate or correct any clerical or arithmetical mistake in a certificate by sending an intimation to the Recovery Officer.
- The (P.O) Presiding Officer shall intimate to the Recovery Officer any order withdrawing or canceling the certificate or any of the correction made by him.