Inherent Powers of Recall: an analysis of Debts Recovery Tribunals’ Authority to Revisit their Orders

Introduction

It was held by the House of Lords in Board of Education v. Rice¹ that a person or a body determining a justiciable controversy between parties must give each party a fair opportunity to put forth his own case and to correct or contradict any relevant statement prejudicial to his view. One of the grundnorms upon which the Debts Recovery Tribunals (DRTs) and the Debts Recovery Appellate Tribunals (DRATs) are founded is the principle of providing equal hearing opportunity to both parties before making any interim or final order, in accordance with Section 19(20)² of the Recovery of Debts and Bankruptcy Act, 1993³ (RDB Act). However, more often than not, a situation arises when the summons is not effectively served on the debtors/defendants by the Court, or the Debts Recovery Tribunal (DRT) and the Debts Recovery Appellate Tribunal (DRAT) in this instance, as a result of which they are set ex parte, the case is heard in their absence, and an ex parte final order is passed thereafter. Another scenario, amongst others, that may arise is that the final order is passed by the DRT in lieu of an already existing moratorium instituted by the National Company Law Tribunal (NCLT) under the provisions of the Insolvency and Bankruptcy Code, 2016⁴ (IBC) in favour of the corporate debtor or the corporate guarantor, which is a procedural error that invalidates the very final order. In such instances, the defendants have no other remedy than to approach the very tribunal that passed the order i.e. the DRT or the DRAT, seeking that the final order must be recalled.

While a party can always seek to file an application to set aside an order passed against them ex parte, it must be noted that such petitions under Section 22(2)(g)⁵ of the RDB Act are specifically limited to instances of dismissal for default or ex parte orders. This article will accordingly examine how the recall application is instrumental in filling the above gap in the statute despite the absence of a corresponding enabling provision in the RDB Act. The same will be discussed in the light of the judgment of the Supreme Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal⁶, among other judgments that lay out the groundwork for the DRTs and the DRATs to exercise their inherent powers to entertain recall applications. The discussion will also present an alternative view of how the recall application is nothing but an application for procedural review which is maintainable under Section 22(2)(e)⁷ of the RDB Act and will explore the applicability of a limitation period to such applications before concluding.

“Recall” and “set aside” under the Recovery of Debts and Bankruptcy Act, 1993

According to P. Ramanatha Aiyar’s Major Law Lexicon⁸, the definition of setting aside a judgment is as follows: “The expression ‘set aside’ means that the interim order has come to an end, or has become inoperative.” The same was also held by the Supreme Court in Bileshwar Khan Udyog Khedut Shahkari Mandali Ltd. v. Union of India⁹. The term “setting aside” hence implies that the operation of the order has come to an end or has become inoperative. Section 22(2)(g) of the RDB Act, accordingly enables the DRT and the DRAT to set aside any order of dismissal of any application for default or any order passed by it ex parte. It can be seen herein that the filing of such an application is specifically restricted to those instances where an application has been dismissed for default, or when an order has been passed by the Tribunal ex parte, or when an order has been passed setting a party as an ex parte as a result of non-appearance. However, the said provision does not take into consideration the instances such as:

1. When the right to file to file the counter-affidavit or the proof affidavit is closed for default: After the bank files an application for recovery of monies before the DRT against the defendant, the defendant must file their written statement within 30 days in line with Section 19(5)¹⁰ of the RDB Act read with Rule 12¹¹ of the DRT (Procedure) Rules, 1993¹². When there arises an inordinate delay on the part of the defendant to file their counter within the said time-period, the DRT may close such an opportunity to prevent any further delay occurring in the adjudication process arising as a result of the same. Also, when either party fails to file their proof affidavit, the Tribunal proceeds to close the opportunity to file the same to move forward in the adjudication of the application.

2. When the order has been passed by the Tribunal in ignorance of an ongoing moratorium which has come into effect under Section 14¹³ of the Insolvency and Bankruptcy Code, 2016: When one of the defendants impleaded in the original application preferred by the applicant bank for recovery of monies under the RDB Act is ordered into the corporate insolvency resolution process (CIRP) under Section 7¹⁴ of the IBC, a moratorium prohibiting the institution or continuation of legal proceedings is simultaneously declared on the date of commencement of the CIRP. As can be made out above, no proceeding can continue against the said defendant in any court or tribunal while such an order is in place. However, there may arise an instance where such moratorium is not reported before the Tribunal due to inaction and default arising on the part of the parties. And the Tribunal accordingly proceeds to issue a final order in lieu of the ongoing moratorium.

This is where the recall application comes in to fill in the gap. While the meaning of the terms “set aside” and “recall” are analogous to each other, the reliefs which one can seek in a set aside application are specifically limited to the two scenarios stated in Section 22(2)(g) as stated earlier. On the contrary, the recall application is not confined solely to the two instances outlined in Section 22(2)(g), but also encompasses other scenarios which are not expressly covered by the said provision. P.R. Aiyar’s Law Lexicon¹⁵ puts the definition of the term “recall” as follows: “the expression ‘recall’ would be to revoke, cancel, vacate, or reverse a judgment for matters of fact. When a judgment is annulled by reason of errors of law, it is said to be reversed“. It can be made out from the above definition that the resultant effect of a recall application is the revocation, cancellation, vacation, or reversal of a judgment specifically for matters of fact. However, the RDB Act does not contain a provision for the filing of a recall application, as compared to a set aside petition.

Inherent powers: Powers which are vested in the court despite not being expressly granted under the legislation

By exploring the complexities ensuing because of orders being passed ex parte and in non-conformity with the established procedure under law among other reasons, this article delves into a crucial question: Whether the DRT and the DRAT inherently possess the authority to recall their orders? This inquiry becomes particularly significant in instances where the final order is passed in the above instances, raising questions of maintainability of a recall petition within the framework of the RDB Act and the DRT (Procedure) Rules, 1993 (the Procedure Rules).

Section 151¹⁶ of the Code of Civil Procedure, 1908¹⁷ (CPC) states that the inherent power is one which, though not expressly granted under a legislation, will be deemed to exist or be inherent in the Court so as to enable it to make such orders as necessary in order to meet the ends of justice or to prevent abuse of process of the Court. Section 22(2) of the RDB Act accordingly states that the DRT and the DRAT shall have the same powers as those vested in a civil court under the CPC while trying a suit in respect of the matters listed in the said provision. Furthermore, Section 19(25)¹⁸ of the RDB Act states that, “The Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.” It can be made out from the above that the Tribunal may make such orders or directions as it may deem fit and necessary to prevent the abuse of process and to secure the ends of justice. The judgments discussed hereafter will accordingly shed light upon how the aforesaid provisions enable the DRTs and the DRATs to invoke the inherent powers that are vested in them to recall their orders.

Ex debito justitiae¹⁹: Inherent powers of the Tribunal to recall its own order, as discussed by the Supreme Court in Grindlays Bank v. Central Government Industrial Tribunal²⁰

In Grindlays Bank Ltd. v. Central Government Industrial Tribunal²¹, the Supreme Court was seized with the question of whether the Central Governmental Industrial Tribunal (CGIT) had the power to set aside an ex parte award despite the Industrial Disputes Act, 1947²², not conferring any such powers upon the said tribunal. The above case involved an appeal against the judgment of the Calcutta High Court whereby it refrained from interfering with an order of the CGIT setting aside an ex parte award made by it. The facts of the case that led to the eventual appeal before the Supreme Court are as follows:

The Ministry of Labour vide an order dated 26-7-1975, referred an industrial dispute between Grindlays Bank Ltd., Calcutta, and their workmen to the CGIT. The CGIT fixed a hearing date on 28-5-1976, but the hearing was adjourned several times on one ground or the other. When the hearing of the reference was finally fixed for hearing on 9-12-1976, the counsel appearing on behalf of the Commercial Establishments Employees’ Association (the Association) (Respondent 3) which represented the employees (Respondents 5 to 17), sought an adjournment since the General Secretary of the Association had lost his father on 25-11-1976, and that he had to leave to perform the Shraddha ceremony which happened to fall on the same date as that of the hearing i.e. 9-12-1976. The Counsel for the Association also furnished a copy of a telegram in support of his prayer for adjournment.

However, the CGIT refused to grant any further adjournment and went on to make an ex parte award. The Tribunal based its ex parte award on the statement recorded by the manager of Grindlays Bank which said that the Respondents 5 to 17 were employed as drivers by the officers in Grindlays Bank case²³ and were not employees of the bank itself. The Tribunal therefore held that they were not entitled to the benefits enjoyed by the drivers employed by the bank.

On 19-1-1977, the Association acting on behalf of the employees moved an application under Order 9 Rule 13²⁴ CPC seeking that the ex parte award passed on 9-12-1976, be set aside on the ground that they were prevented from appearing due to sufficient cause. The CGIT, vide its order dated 12-4-1977, allowed the said application and set aside the impugned ex parte award, having been satisfied that sufficient cause had been established within the meaning of Order 9 Rule 13 CPC. Grindlays Bank went on to challenge the order dated 12-4-1977, before the Calcutta High Court, which declined to interfere with the order passed by the CGIT. The bank thereafter preferred the present appeal under discussion before the Supreme Court.

The Supreme Court determined that two questions arose in the appeal: firstly, whether the Tribunal had any jurisdiction to set aside the ex parte award, and secondly, whether the Tribunal had become functus officio upon the expiry of 30 days from the date of publication of the ex parte award due to Section 20(3)²⁵ of the Industrial Disputes Act, 1947, and therefore, whether only the Central Government had the power to set aside the award under Section 17-A(1)²⁶ of the Industrial Disputes Act.

(a) Necessary implications and specific conferment as a prerequisite for the exercise of review powers under the statute; but not for setting aside and recalling orders

It was contended by Grindlays Bank that neither the Industrial Tribunals Act, nor the rules framed under it conferred any powers upon the Tribunal to set aside the ex parte award. The bank subsequently submitted that since the ex parte order dated 9-12-1976, passed by the CGIT was based on the statement of its manager, the order setting aside the ex parte award in fact, amounted to a review. Grindlays Bank accordingly relied upon the case of Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji²⁷, in this respect. The Supreme Court in the above case had held that, “It is well settled that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication.”

The Court in the present case thereafter went on to distinguish the usage of the expression “review” in two senses namely: “(1) a procedural review which is either inherent or implied in a court or tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on meritswhen the error sought to be corrected is one of law and is apparent on the face of the record.” The Court by laying out the above distinction hence clarified that it is only in the latter sense that it was held in Patel Narshi case²⁸ that no review lies on merits until a statute specifically provides for it. Therefore, it is implied that the terms “recall” and “setting aside” are equivalent to the power of procedural review (the former sense) which inheres in the Tribunal to enable it to set aside a palpably erroneous order which is passed under a misapprehension by it. The Court in the present case hence went on to hold that, “when a review is sought with regard to a procedural defect, the inadvertent error committed by the Tribunal ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or tribunal”.

(b) Inherent powers as an aid for the Tribunal to effectively discharge its quasi-judicial functions

While examining the nature of the inherent powers vested in the Industrial Tribunal, the Supreme Court observed that while the CGIT is not essentially a court, but has the trapping of a court, it exercises quasi-judicial functions. The Court further observed that when Section 11(1)²⁹ of the Industrial Disputes Act, 1947, expressly and clearly confers powers upon the Tribunal to regulate its own procedure, it must necessarily be endowed with all powers to adjudicate an existing dispute after affording both sides an equal opportunity to be heard. The Court thereafter went on to hold that where an award is made by the Tribunal without notice to a party, it is nothing but a nullity, and, in such circumstances, the Tribunal has not only the power but also the duty to set aside the ex parte award and to direct the matter to be heard afresh.

(c) The doctrine of “functus officio”

The second issue framed by the Supreme in the present case was whether the Tribunal had become functus officio upon the expiry of 30 days from the date of publication of the ex parte award due to Section 20(3)³⁰ of the Industrial Disputes Act, 1947, and therefore, whether only the Central Government had the power to set aside the award under Section 17-A(1) of the Industrial Disputes Act. To give a backdrop into the forming of the aforesaid issue, Section 20(3) states that the proceedings before the Labour Tribunal start on the date the dispute is referred for adjudication, and are considered to be ended on the date the award becomes enforceable under Section 17-A. Section 17-A accordingly states that an award shall become enforceable on the expiry of thirty days from the date of its publication under Section 17³¹.

To give insight into the meaning of the doctrine “functus officio”, the same was clearly elucidated upon and explained by the Supreme Court of Canada in Canadian Broadcasting Corpn. v. R.³², as follows: “Does the doctrine of functus officio — the notion that once a court has performed its function, it has exhausted its authority — preclude that court from revisiting a publication ban that it had ordered or a sealing order put in place in the course of criminal proceedings? … In its contemporary guise, functus officio indicates that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision.” P.R. Aiyar’s Law Lexicon³³ further defines functus officio as, “A term applied to something which once has had a life and power, but which has become of no virtue whatsoever. Thus, when an agent has completed the business which he was entrusted his agency is functus officio.” Therefore, the aforesaid ruling and definition imply that the decision of a court which is susceptible of appeal, once rendered, preclude the Court from revisiting it since it has, in essence, become functus officio.

Now, coming back to the present case, as regards the contention of Grindlays Bank that the CGIT had become functus officio, and therefore had no jurisdiction to set aside the award, the Court held that the said contention did not commend to it for the following reason. According to the wording of Section 20(3) of the Industrial Tribunals Act, Tribunal proceedings are considered to be ongoing until the award is enforceable 30 days after its publication under Section 17-A. The Court thus held that the Tribunal had in no way become functus officio, and continued to have jurisdiction over the dispute until the award became enforceable. In the present case, the ex parte award was passed on 9-12-1976, and was thereafter published on 25-12-1976. The said ex parte order was challenged by the aggrieved Association on 19-12-1977, before the 30-day period ended on 25-1-1977. The Court further pointed out that the jurisdiction of the Tribunal had to be determined from the set aside application’s filing date, and not from the date on which it passed the impugned order dated 12-4-1977. The Court thus held that the ex parte award does not carry any finality since it is always subject to being set aside upon sufficient cause being shown. The appeal was subsequently dismissed by the Supreme Court with costs.

However, one may question the relevance of the Grindlays Bank case³⁴ to the inherent powers of the DRT and the DRAT to recall its own orders. The significance of highlighting Grindlays Bank lies in its role in establishing the legal groundwork that influenced the evolution of jurisprudence related to the topic at hand. The cases of Sunita Devi case³⁵, Asit Kumar Kar case³⁶, and Radnik Exports case³⁷, which will be discussed next, will further elucidate how the DRT and the DRAT derive their inherent powers under the RDB Act.

Inherent powers of quasi-judicial tribunals to recall their own orders: as discussed by the Supreme Court in other cases

In Sunitadevi Singhania Hospital Trust. v. Union of India³⁸, set aside the order of the Central Excise and Service Tax Appellate Tribunal (CESTAT) which had dismissed an application for rectification of mistake — effectively an application for recall — and had also refused to condone the delay in filing the said application. The Supreme Court, affirming its judgment in Grindlays Bank case³⁹, reiterated that the Industrial Tribunal had an inherent power to set aside the ex parte award subject to the condition that the same had not been published in the Gazette. The Court thereafter went on to hold in Sunitadevi case⁴⁰ that the CESTAT had failed to notice that it had sufficient powers to recall its own order if sufficient cause was shown. Consequently, the appeal was allowed and the impugned judgment of the CESTAT was set aside.

In Asit Kumar Kar v. State of W.B.⁴¹, the Supreme Court laid out the difference between a review petition and a recall petition. It was held as follows: “While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.” It can hence be implied that a review petition is applicable in those instances where there is an error apparent on the face of the record, while a recall application lies in those instances where an order was passed without giving a sufficient hearing opportunity to the other party.

The aforesaid cases of Sunitadevi case⁴² and Asit Kumar Kar case⁴³ were consequently followed by the DRAT, Delhi, in Standard Chartered Bank v. Radnik Exports⁴⁴. The Tribunal in the said case upheld the order of the DRT-II, Delhi, whereby it had recalled the ex parte order dated 31-12-2009. While arriving upon its judgment in the above case, the Tribunal had followed Sunitadevi case⁴⁵ to state that the Tribunal has inherent powers to recall its own order if sufficient case is shown therefor. The DRAT also went on to reiterate the following observation of the Supreme Court in Sunita Devi case⁴⁶: “the principles of natural justice envisage that a mistake committed by the Tribunal would attract the ancillary and/or incidental power of the Tribunal necessary to discharge its functions effectively for the purposes of doing justice between the parties”. The Tribunal also followed the judgment of the Supreme Court in Asit Kumar Kar case⁴⁷ to conclude that the respondents had not sought for review of the order, and had only asked to recall the order dated 31-12-2009 for the reason that it was made without giving them a hearing opportunity. The Tribunal subsequently went on to hold that, “In view of the law laid out in the above cases, it is clear that the DRT is vested with inherent powers to recall any order if sufficient reasons exist for that.” Subsequently, the Tribunal, after being satisfied that the application filed by Radnik Exports before the DRT-II was one for recall, went on to uphold the order of the said tribunal. The aforesaid section thus draws out how the jurisprudence with respect to the inherent powers of the DRTs and the DRATs culminated with Grindlays Bank case⁴⁸, and evolved thereafter with Sunitadevi case⁴⁹, Asit Kumar Kar case⁵⁰, and consequently Radnik Exports case⁵¹.

Presumption of service and unanswered summons: Exploring Section 27 of the General Clauses Act, 1897

Section 27⁵² of the General Clauses Act, 1897⁵³, stipulates that the service of any document required or authorised by a Central Act or Regulation, when sent by properly addressed, prepaid, registered post, is deemed effective. This presumption holds unless proven otherwise. The aforesaid provision is relevant since, while the party may claim in his/her/their recall application that the summons was not effectively served, the bank may raise the defence of Section 27 to claim that the presumption of service exists.

While Section 27 states that the addressee is presumed to be served when the letter is properly addressed, prepaid, and posted by registered post, there may arise an instance where the addressed may not be served because he/she may have shifted to a new address, or because the letter may have been delivered to wrong person instead of the intended recipient. The following case sheds light on how the addressee can rebut the presumption under Section 27 by providing evidence to prove the contrary.

In Sharp Industries v. Bank of Maharashtra⁵⁴, Sharp Industries had preferred an appeal before the DRAT, Allahabad Bench, against the dismissal of a securitisation application (SA) filed against the sale notices issued by the bank. Sharp Industries had preferred the SA on the ground that Rules 8(5)⁵⁵ & (6)⁵⁶ and 9(1)⁵⁷ & (2)⁵⁸ of the Security Interest (Enforcement) Rules, 2002⁵⁹, were not followed by the bank. Rule 8(5) outlines the procedure for the sale of immovable property, while Rule 8(6) mandates that the Bank must serve to the borrower a notice of thirty days for sale of the immovable secured assets. Furthermore, Rule 9(1) states that no sale of immovable property under the said rules shall take place before the expiry of thirty days from the date on which the sale notice had been published in the newspapers. Rule 9(2) accordingly states that the sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid for purchase to the authorised officer of the bank.

It was argued by Sharp Industries that the sale notice dated 16-8-2018 was never served to them or other guarantors. The sale notices had been sent to an earlier address of Sharp Industries and was returned with the remark “left”. Sharp Industries had also conveyed the new address to the bank via an email dated 13-11-2017. The bank in reply contended that the sale notices were sent by registered post to the borrower and the guarantor at their new address as well, but did not adduce any evidence before the Tribunal to reflect the same. It was subsequently observed by the Tribunal that although the presumption can be drawn under Section 27 of the General Clauses Act, it can only be done if it is not returned unserved or not rebutted by the addressees. After perusing the record of the postal authorities filed by Sharp Industries before the Tribunal, it was seen that the notices sent by the bank to the guarantors were also not served by the bank as no one was available at the address. The letter dated 11-5-2020 issued by the postal authority was also filed by Sharp Industries. After noting that the Bank had failed to rebut the said documents, the Tribunal concluded that the sale notices sent by the bank were received back as unserved, and hence, held that the bank had failed to effectively serve the notice on the borrower, which is the mandatory requirement under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002⁶⁰. The appeal was consequently allowed by the DRAT, and the impugned order was thereby quashed.

An alternate view on recall applications under the RDB Act: Viewing recall as procedural review within the ambit of Rule 5-A⁶¹ of the Procedure Rules

While the DRAT, Delhi, in Radnik Exports case⁶², followed the judgment of Asit Kumar case⁶³ and drew the distinction between the terms “review” and “recall”, the author is of the opinion that tribunal did not consider the ruling of the Supreme Court in Grindlays Bank case⁶⁴ judgment whereby the Court had distinguished the usage of the expression “review” in two senses namely procedural review and a review on merits, as explained earlier. Furthermore, it was held by the Allahabad High Court in Khan Enterprises v. NCLT⁶⁵, that “as far as the power to recall is concerned, it is nothing but a procedural review which can be availed only if there is any procedural defect in passing the order or if the order has been obtained by playing fraud in any manner”. It can therefore be implied that since the power to recall amounts to procedural review, which is one of the modes of review prescribed by the Supreme Court in Grindlays Bank case⁶⁶, the power of the DRTs and the DRATs to entertain the recall application is already implicit in Section 22(2)(e) of the RDB Act and Rule 5-A of the Procedure Rules which provide for the party to file an application for review.

Rules of limitation with respect to filing recall applications before the DRT and the DRAT: Is there one?

In Radnik Exports case⁶⁷, the bank had contended that the review application filed by Radnik Exports was time-barred since it was filed four months after the passing of the impugned order. The bank further relied upon Rule 5-A of the Procedure Rules to point out that the period of limitation for filing a review application is only 60 days. After holding the said review application to be a recall application upon relying on the distinction drawn by the Supreme Court in Asit Kumar case⁶⁸ between review and recall application, the DRAT held that the said contention of the bank with regard to limitation is untenable. It can therefore be implied herein that there is no rule of limitation as on date, when it comes to filing a recall application before the DRTs and the DRATs.

Conclusion

In summary, the present article has navigated the intricate landscape of recall applications with the framework of the RDB Act and the Procedure Rules. By analysing the Grindlays Bank⁶⁹ judgment and the judgments that came thereafter, we can see how the jurisprudence has evolved over time to affirm the inherent powers vested in the DRTs and the DRATs to recall their own orders. In conclusion, the inherent powers of the DRTs and the DRATs to recall their orders are not only rooted in the statutory provisions of the RDB Act, but also find their basis in the jurisprudence that has evolved over time. As the legal landscape continues to evolve, it is essential that the principles discussed in the present article are revisited and refined to ensure that they align with the advancing needs of our judiciary.