Mrs.B.Rajarajeshwari Vs The Presiding Officer On 11 January, 2017 PDF

Mrs.B.
Rajarajeshwari vs The Presiding Officer on 11 January, 2017
Madras High Court

Mrs.B.Rajarajeshwari vs The Presiding Officer on 11 January, 2017
IN the High Court of Judicature at Madras

Dated: 11.01.2017
C O R A M:
THE HONOURABLE MR. JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
Writ Petition No.25110 of 2016
Mrs.B.Rajarajeshwari ... Petitioner
Vs
1. The Presiding Officer

Debts Recovery Tribunal II
Spencer Towers
Chennai.
2. M/s. Tamilnad Mercantile Bank Ltd

rep. By its Manager
T.T.K.Road Branch
Royapettah
Chennai 600 014.
3. Mr.G.Radhakrishnan ... Respondents
Prayer: Petition filed

Article
under 226 of the Constitution of India praying for the issuance
For petitioner ... Mr.SP.Srinivasan
For respondents ... Mr.S.Sethuraman for R.2
O R D E R
(Order of the Court was made by S.Manikumar,J) The petitioner has availed Over Draft facility of
Rs.15 lakhs (Rupees Fifteen lakhs only) from Tamilnad Mercantile Bank Ltd., Royapettah, Chennai
600 014. Due to financial distress, she could not repay the loan amount. After her loan account was
classified as NPA, she had paid Rs.1 lakh (Rupees One lakh only), on 28.11.2011. Thereafter, on
08.02.2012, she moved an application under the SARFAESI Act, 2002, in S.A.No.30 of 2012, before
the Debts Recovery Tribunal, Madurai. An interim order was passed, directing the petitioner, to
deposit Rs.6 lakhs in two instalments. In compliance of the same, Rs.2,50,000/- and Rs.3,50,000/-
were deposited, on 09.12.2012 and 08.03.2012, respectively. The petitioner has submitted that
S.A.No.30 of 2012 was closed.
Indian Kanoon - http://indiankanoon.org/doc/76942312/ 1

2. The petitioner has filed S.A.No.18 of 2015, challenging sale notice, dated 19.12.2014 and that the
same is pending, on the file of the Debts Recovery Tribunal, Madurai. In S.A.No.18 of 2015, a
conditional order was passed, in I.A.No.114 of 2015, dated 23.01.2015, staying the sale auction
notice, dated 19.12.2014, by which, auction was to be held, on 27.01.2015. Pursuant to the
conditional stay order, petitioner deposited Rs.9 lakhs, in two instalments.
3. When the matter stood thus, the Debts Recovery Tribunal - II, Chennai, has issued a recovery
certificate, in D.R.C.No.122 of 2016, dated 02.02.2016, to the Recovery Officer, for a sum of
Rs.24,28,024.22, as hereunder, S.No.
Item of costs Amount (in Rs.)
1. Amount determined against the defendants 18,69,520.00
2. Interest @ 9% p.a (simple) on Rs.18,69.520.00 from 21/12/2012 to 1/12/2015 4,96,004.22
3. Application/Court fees 22,000.00
4. Advocate fees (as per cost memo Sr.No.10333) 40,500.00
5. Others (As per cost memo SR.No.10333) Nil TOTAL 24,28,024.22
4. According to the petitioner, as the interest of the Bank had already been secured by the
conditional order, in S.A.No.18 of 2015, on the file of the Debts Recovery Tribunal, Madurai,
issuance of Recovery Certificate, in D.R.C.No.122 of 2016, was not necessary. The petitioner has
further submitted that a sum of Rs.16 lakhs, deposited in the Tribunal, during the pendency of
S.A.No.30 of 2012 and S.A.No.18 of 2015, on the file of the Debts Recovery Tribunal, Madurai, has
not been taken note of, while issuing the Recovery Certificate in D.R.C.No.122 of 2016, dated
02.02.2016.
5. In such circumstances, the petitioner was constrained to file I.A.No.4869 of 2016, in

D.R.C.No.122 of 2016, in O.A.No.219 of 2014, on the file of the Debts Recovery Tribunal - II,
Chennai, to stay the proceedings of the Recovery Officer, based on the recovery certificate, issued in
D.R.C.No.122 of 2016, dated 02.02.2016, pending disposal of S.A.No.18 of 2015, on the file of the
Debts Recovery Tribunal, Madurai. She has also filed I.A.4870 of 2016, in D.R.C.No.122 of 2016,
before the Debts Recovery Tribunal - II, Chennai, with a prayer to withdraw the recovery certificate
issued in D.R.C.No.122 of 2016, dated 02.02.2016, pending disposal of S.A.No.16 of 2016, on the file
of the Debts Recovery Tribunal, Madurai.
6. The Tribunal, which considered the averments relating to the deposit of Rs.15 lakhs, in S.A.No.30
of 2012 and S.A.No.18 of 2015, on the file of the Debts Recovery Tribunal, Madurai and payment of
Rs.1 Lakh, not being taken note of, while issuing the recovery certificate, dated 02.02.2016, in
O.A.No.219 of 2014, vide order, dated 21.06.2016, rejected the M.A.SR.No.4870 of 2016, as
hereunder:-

"Counsel for the petitioner in M.A.SR.No.4870 of 2016 and Liaison Officer of applicant bank
present. Passed over and called again. M.A.Sr.No.4870 of 2016 is filed to recall DRC. But OA is
allowed by this Tribunal and DRC was issued as per the OA. DRC cannot be recalled. Hence, this
M.A.SR.No.4870 of 2016 is not maintainable and is rejected."
7. Being aggrieved by the same, the borrower/petitioner has filed the instant writ petition, to quash
the proceedings, stated supra.
8. While ordering notice to the respondents 2 and 3, a Hon'ble Division Bench of this Court, on
20.07.2016, has granted interim stay of further action, till 04.08.2016. Thereafter, interim stay has
been extended till 22.08.2016. Seeking for a direction to vacate the interim stay, Tamilnad
Mercantile Bank Limited, Chennai, has filed W.M.P.No.34917 of 2016 in W.P.No.25110 of 2016.
Based on the averments made in the supporting affidavit, filed to vacate the stay, Mr.S.Sethuraman,
learned counsel for the Bank submitted that as on 30.11.2012, a sum of Rs.18,69,520/- was the
outstanding amount payable by the writ petitioner. Hence O.A.No.16 of 2013 was filed before the
Debts Recovery Tribunal - I, Chennai, which was subsequently transmitted and renumbered as
O.A.No.219 of 2014, on the file of the Debts Recovery Tribunal II, Chennai. He further submitted
that S.A.No.30 of 2012 has been filed by the writ petitioner, when the mortgaged property was
sought to be sold, in which a conditional order, dated 08.02.2012 has been passed directing the writ
petitioner, to deposit Rs.6 lakhs, in two instalments.
9. Learned counsel for the Bank fairly submitted that the subsequent conditional order made in
S.A.No.18 of 2015, on the file of the Debts Recovery Tribunal, Madurai, directing the writ petitioner,
to deposit a sum of Rs.9 lakhs, has also been complied with. Learned counsel for the Bank also
submitted that a sum of Rs.15 lakhs, deposited in S.A.Nos.30 of 2012 and S.A.No.18 of 2015, on the
file of the Debts Recovery Tribunal, Madurai, respectively and a sum of Rs.1 lakh paid to the Bank,
would be duly accounted towards the discharge of the outstanding loan amount, payable by the
borrower.
10. Mr.S.Sethuraman, learned counsel for the Bank further submitted that an application under
Section 26 (2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, can be
filed only to correct clerical or arithmetic mistakes. He further submitted that the writ petitioner,
ought to have filed an application before the Debts Recovery Officer, Chennai, setting out the details
of payment/deposit made and had it been done, the Debts Recovery Officer, would have deducted
the above said amount and proceeded further.
11. Heard the learned counsel for the parties and perused the material on record.
12. Question called upon for decision is whether the Tribunal is right in stating that it has no power
to cancel the Debts Recovery Certificate once issued.
13. Secured property is at Madurai. When the writ petitioner filed S.A.No.30 of 2012, on the file of
the Debts Recovery Tribunal, Madurai, pursuant to the interim order, a sum of Rs.6 lakhs has been
deposited. Conditional order made in S.A.No.30 of 2012, dated 8/2/2012, on the file of the Debts

Recovery Tribunal, Madurai, which is enclosed in page No.2 of the typed set of papers filed by the
writ petitioner shows that by filing a caveat, Tamil Nadu Mercantile Bank Limited, Chennai has
strongly objected to grant of any interim order. After considering the submissions of the learned
counsel for the parties, on 8/2/2012, interim order has been granted.
14. From the perusal of the conditional order, dated 23.01.2015, in S.A.No.18 of 2015, it could be
deduced that the Bank has opposed the prayer sought for, by the borrower, for stay. Here again,
after hearing the arguments of the learned counsel for the parties, the Debts Recovery Tribunal,
Madurai has granted an interim order, directing the writ petitioner, to deposit a sum of Rs.9 lakhs,
to the credit of S.A.No.18 of 2015, which has been done.
15. On both the occasions, the respondent Bank has fully participated in the proceedings and only
after hearing the Bank, interim orders have been passed. Knowing fully well that a sum of Rs.15
lakhs has been deposited, to the credit of S.A.Nos.30 of 2012 and 18 of 2015, respectively and
payment of Rs.1 Lakh, the respondent Bank has not brought to the notice of the Debts Recovery
Tribunal - II, Chennai, when O.A.No.219 of 2014, on 01.12.2015, was allowed in the following
terms:-
a. The applicant Bank is entitled to recover a sum of Rs.18,69,520/- (Rupees Eighteen lakhs Sixty
nine thousand five hundred and twenty only) together with interest at 9% (simple) p.a., from the
date of OA till realisation with costs from defendants 1 and 2 and in default to sell the mortgaged
property described in the schedule to the OA.
b. The applicant bank is directed to file costs memo within two weeks of the receipt of this order.
c. Issue recovery certificate in favour of the applicant bank in terms of this final order.
16. Section 26 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, deals
with, "validity and amendment of the Recovery Certificate" and the same reads as hereunder:-
š6. Validity of certificate and amendment thereof:
(1) It shall not be open to the defendant to dispute before the Recovery Officer the correctness of the
amount specified in the certificate, and no objection to the certificate on any other ground shall also
be entertained by the Recovery Officer.
(2) Notwithstanding the issue of a certificate to a Recovery Officer, the Presiding Officer shall have
power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate by
sending intimation to the Recovery Officer.
(3) The Presiding Officer shall intimate to the Recovery Officer any order withdrawing or canceling a
certificate or any correction made by him under sub- section (2)."

17. In Sections 26 and 27 of the Recovery of Debts Due to the Bank and Financial Institutions Act,
1993, the Legislature has used the words, "withdrawing" or "cancelling", "correct any clerical or
arithmetic mistakes", "amend the certificate", as the case may be. Each word used in the Act, has a
definite meaning. Meaning of the words, "Withdrawal" and "Cancel", in the dictionaries, is as
follows:
Wharton's Law Lexicon:
Withdrawal: 1. The act of taking back or away; Black's Law Dictionary, 7th Edn., p.1595.
Stroud's Judicial Dictionary of Words and Phrases:
Cancel: To "cancel" a document, is to put an end to it.
Concise Oxford Dictionary:
Cancel means, Obliterate cross out, annul, make void, abolish, countermand, neutralize, balance,
make up for [Indra Kumari v Rajkumar Mahant 1973 Jab LJ 652, (1973) Mad LJ 529]
18. In ordinary parlance, "Amendment" means correction of an error. Ordinary meaning of the word
"amend", in Shorter Oxford Dictionary, is to make alterations. In some of the dictionaries, it is given
as meaning, "to alter, modify, rephrase, or add to or subtract from". In Words and Phrases, Second
Series, Vol.I, the word, "amend" has been treated as synonymous with correct, reform and rectify.
19. In Sajjan Singh v. State of Rajasthan reported in AIR 1965 SC 845 = 1965 (1) MLJ (SC) 57, the
Hon'ble Supreme Court held as follows:
"The dictionary meaning of the word, "amend" is to correct a fault or reform. .........It is well known
that the amendment of a law may in proper case include the deletion of anyone or more of the
provisions of the law and substitution in their place of new provisions."
20. In the light of the usage of the words, withdrawal, cancellation, amend, correct clerical or
arithmetical errors, at different places, in Recovery of Debts due to the Bank and Financial
Institution Act, 1993, this Court deems it fit to consider few judgments on the interpretation of
statutes.
(i) In the words of Tindal, C.J., in Sussex Peerage case [(1844) 11 Cl & F 85], If the words of the
statute are in themselves precise and unambiguous, then no more can be necessary than to expound
those words in their natural and ordinary sense. The words themselves so alone in such cases best
declare the intent of the lawgiver.
(ii) In Nairin v. University of St. Andrews reported in 1909 AC 147, the Hon'ble Apex Court held
that, Unless there is any ambiguity it would not be open to the Court to depart from the normal
rule of construction which is that the intention of the Legislature should be primarily gathered from

the words which are used. It is only when the words used are ambiguous that they would stand to be
examined and construed in the light of surrounding circumstances and constitutional principle and
practice.
(iii) In Ram Rattan v. Parma Nand reported in AIR 1946 PC 51, the Hon'ble Mr.S.R.Das, held as
follows:
The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the
words their ordinary, natural and grammatical meaning. If, however, such a reading leads to
absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if
no such alternative construction is possible, the Court must adopt the ordinary rule of literal
interpretation. In the present case, the literal construction leads to no apparent absurdity and
therefore, there can be no compelling reason for departing from that golden rule of construction.
(iv) In Poppatlal Shah v. State of Madras reported in AIR 1953 SC 274, the Hon'ble Supreme Court
held that, It is settled rule of construction that to ascertain the legislative intent all the constituent
parts of a statute are to be taken together and each word, phrase and sentence is to be considered in
the light of the general purpose and object of the Act itself.
(v) What is the spirit of law, Hon'ble Mr. Justice S.R.Das in Rananjaya Singh v. Baijnath Singh
reported in AIR 1954 SC 749, said that, The spirit of the law may well be an elusive and unsafe
guide and the supposed spirit can certainly not be given effect to in opposition to the plain language
of the Sections of the Act.
(vi) In Hari Prasad Shivashanker Shukla v. A.D.Divelkar reported in AIR 1957 SC 121, the Hon'ble
Apex Court held that, It is true that an artificial definition may include a meaning different from or
in excess of the ordinary acceptation of the word which is the subject of definition; but there must
then be compelling words to show that such a meaning different from or in excess of the ordinary
meaning is intended, Where, within the framework of the ordinary acceptation of the word, every
single requirement of the definition clause is fulfilled, it would be wrong to take the definition as
destroying the essential meaning of the word defined.
(vii) In Kanai Lal Sur v. Paramnidhi Sadhukhan reported in AIR 1957 SC 907, the Hon'ble Supreme
Court held that, it must always be borne in mind that the first and primary rule of construction is
that the intention of the Legislature must be found in the words used by the Legislature itself. If the
words used are capable of one construction only then it would not be open to the courts to adopt any
other hypothetical construction on the ground that such hypothetical construction is more
consistent with the alleged object and policy of the Act.
The words used in the material provisions of the statute must be interpreted in their plain
grammatical meaning and it is only when such words are capable of two constructions that the
question of giving effect to the policy or object of the Act can legitimately arise. When the material
words are capable of two constructions, one of which is likely to defeat or impair the policy of the
Act whilst the other construction is likely to assist the achievement of the said policy, then the courts

would prefer to adopt the latter construction.
It is only in such cases that it becomes relevant to consider the mischief and defect which the, Act
purports to remedy and correct.
(viii) In Attorney-General v. HRH Prince Ernest Augustus of Hanover reported in (1957) 1 All.ER
49, Lord Somervell of Harrow has explained the unambiguous, as unambiguous in context .
(ix) In The State of Bihar v. Hira Lal Kejriwal reported in AIR 1960 SC 47, the Hon'ble Supreme
Court, at Paragraph 6, held that, To ascertain the meaning of a section it is not permissible to omit
any part of it: the whole section should be read together and an attempt should be made to reconcile
both the parts. ......The first part gives life to that Order, and, therefore, the acts authorised under
that Order can be done subsequent to the coming into force of the Ordinance. ......The second part
appears to have been enacted for the purpose of avoiding this difficulty or, at any rate, to dispel the
ambiguity.
(x) In S.Gurmej Singh v. S.Pratap Singh reported in AIR 1960 SC 122, the Hon'ble Supreme Court,
at Paragraph 9, held as follows:
It is an elementary rule that construction of a section is to be made of all the parts together and not
of one part only by itself, and that phrases are to be construed according to the rules of grammar.
(xi) In State of W.B., v. Union of India reported in AIR 1963 SC 1241, the Hon'ble Apex Court held
that in considering the expression used by the Legislature, the Court should have regard to the aim,
object and scope of the statute to be read in its entirety.
(xii) In State of Uttar Pradesh v. Dr.Vijay Anand Maharaj reported in AIR 1963 SC 946, the Hon'ble
Supreme Court held as follows:
But it is said, relying upon certain passages in Maxwell on the Interpretation of Statutes, at p, 68,
and in Crawford on "Statutory Construction' at p. 492, that it is the duty of the Judge "to make such
construction of a statute as shall suppress the mischief and advance the remedy," and for that
purpose the more extended meaning could be attributed to the words so as to bring all matters fairly
within the scope of such a statute even though outside the letter, if within its spirit or reason. But
both Maxwell and Crawford administered a caution in resorting to such a construction. Maxwell
says at p.68 of his book:
"The construction must not, of course, be strained to include cases plainly omitted from the natural
meaning of the words."
Crawford says that a liberal construction does not justify an extension of the statute's scope beyond
the contemplation of the Legislature.

The fundamental and elementary rule of construction is that the words and phrases used by the
Legislature shall be given their ordinary meaning and shall be constructed according to the rules of
grammar. When the language is plain and unambiguous and admits of only one meaning, no
question of construction of a statute arises, for the Act speaks for itself. It is a well recognized rule of
construction that the meaning must be collected from the expressed intention of the Legislature.
(xiii) In Namamal v. Radhey Shyam reported in AIR 1970 Rajasthan 26, the Court held as follows:
It was observed by Pollock C. B. in Waugh v. Middleton, 1853-8 Ex 352 (356):-- "It must, however,
be conceded that where the grammatical construction is clear and manifest and without doubt, that
construction ought to prevail, unless there be some strong and obvious reason to the contrary. But
the rule adverted to is subject to this condition, that however plain the apparent grammatical
construction of a sentence may be, if it be properly clear from the contents of the same document
that the apparent grammatical construction cannot be the true one, then that which, upon the
whole, is the true meaning shall prevail, in spite of the grammatical construction of a particular part
of it." And substantially the same opinion is expressed by Lord Selborne in Caledonian Ry, v. North
British Ry. (1881) 6 AC 114 (222):-- "The mere literal construction of a statute ought not to prevail if
it is opposed to the intentions of the legislature as apparent by the statute, and if the words are
sufficiently flexible to admit of some other construction by which, that intention can be better
effectuated." Again Lord Fitzgerald in Bradlaugh v. Clarke, (1883) 8 AC 354 at p. 384 observed as
follows:-- "I apprehend it is a rule in the construction of statutes that in the first instance the
grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any
expressed intention or declared purpose of the statutes, or if it would involve any absurdity,
repugnance, or inconsistency, the grammatical sense must then be modified, extended, or abridged,
so far as to avoid such an inconvenience, but no further." 11. Maxwell in his book on Interpretation
of Statutes (11th Edition) at page 226 observes thus:--
"The rule of strict construction, however, whenever invoked, comes attended with qualifications and
other rules no less important, and it is by the light which each contributes that the meaning must be
determined. Among them is the rule that that sense of the words is to be adopted which best
harmonises with the context and promotes in the fullest manner the policy and object of the
legislature. The paramount object, in construing penal as well us other statutes, is to ascertain the
legislative intent and the rule of strict construction is not violated by permitting the words to have
their full meaning, or the more extensive of two meanings, when best effectuating the intention.
They are indeed frequently taken in the widest sense, sometimes even in a sense more wide than
etymologically belongs or is popularly attached to them, in order to carry out effectually the
legislative intent, or, to use Sir Edward Cole's words, to suppress the mischief and advance the
remedy.
(xiv) In Inland Revenue Commissioner v. Joiner reported in (1975) 3 All. ER 1050, it has been held
that normally a statutory provision consists of a general description of some factual situation and
the legal consequences ensuing from it. Whether the general description is wide or narrow, it will
have some limits. The question before a court of law in dealing with a statute is whether the factual
situation proved before it falls within the general description given in the statute. A real difficulty in

determining the right answer can be said to arise from an ambiguity in the statute. It is in this
sense that the words, ambiguity and ambiguous are widely used in judgments.
(xv) In Commissioner of Sales Tax v. M/s.Mangal Sen Shyamlal reported in 1975 (4) SCC 35 = AIR
1975 SC 1106, the Hon'ble Apex Court held that, "A statute is supposed to be an authentic repository
of the legislative will and the function of a court is to interpret it "according to the intent of them
that made it". From that function the court is. not to resile. It has to abide by the maxim, ut res
magis valiat quam pereat , lest the intention of the legislature may go in vain or be left to evaporate
into thin air."
(xvi) In C.I.T., Madras v. T.Sundram Iyengar (P) Ltd., reported in 1976 (1) SCC 77, the Hon'ble
Supreme Court held that, if the language of the statute is clear and unambiguous and if two
interpretations are not reasonably possible, it would be wrong to discard the plain meaning of the
words used, in order to meet a possible injustice.
(xvii) If the words are precise and unambiguous, then it should be accepted, as declaring the express
intention of the legislature. In Ku.Sonia Bhatia v. State of U.P., and others reported in 1981 (2) SCC
585 = AIR 1981 SC 1274, the Hon'ble Supreme Court held that a legislature does not waste words,
without any intention and every word that is used by the legislature must be given its due import
and significance.
(xviii) In A.R.Antulay v. Ramdas Sriniwas Nayak reported in 1984 (2) SCC 500, the Hon'ble
Supreme Court held that, It is a well established cannon of construction that the court should read
the section as it is and cannot rewrite it to suit its convenience; nor does any cannon of construction
permit the court to read the section in such manner as to render it to some extent otiose. (xix) In
Philips India Ltd., v. Labour Court reported in 1985 (3) SCC 103, the Hon'ble Apex Court, at
Paragraph 15, held as follows:
(15) No cannon of statutory construction is more firmly, established than that the statute must be
read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken
of as construction ex visceribus actus. This rule of statutory construction is so firmly established that
it is variously styled as 'elementary rule' (See Attorney General v. Bastow [(1957) 1 All.ER 497]) and
as a 'settled rule' (See Poppatlal Shall v. State of Madras [1953 SCR 667 : AIR 1953 SC 274]). The
only recognised exception to this well-laid principle is that it cannot be called in aid to alter the
meaning of what is of itself clear and explicit. Lord Coke laid down that: 'it is the most natural and
genuine exposition of a statute, to construe one part of a statute by another part of the same statute,
for that best expresseth meaning of the makers' (Quoted with approval in Punjab Breverages Pvt.
Ltd. v. Suresh Chand [(1978) 3 SCR 370 : (1978) 2 SCC 144 : 1978 SCC (L&S) 165]). (xx) In
Balasinor Nagrik Co-operative Bank Ltd., v. Babubhai Shankerlal Pandya reported in 1987 (1) SCC
606, the Supreme Court, at Paragraph 4, held as follows:
It is an elementary rule that construction of a section is to be made of all parts together. It is not
permissible to omit any part of it. For, the principle that the statute must be read as a whole is
equally applicable to different parts of the same section. .......It also provides for the manner of the

exercise of such power. .......... Sub-section (1) of Section 36 is made subject to the fulfilment of the
conditions prerequisite, (xxi) In Nyadar Singh v. Union of India reported in AIR 1988 SC 1979, the
Hon'ble Apex Court observed that ambiguity need not necessarily be a grammatical ambiguity, but
one of the appropriateness of the meaning in a particular context.
(xxii) It is a well settled law of interpretation that when the words of the statute are clear, plain or
unambiguous, ie., they are reasonably susceptible to only one meaning, the Courts are bound to give
effect to that meaning irrespective of consequences. Reference can be made to the decision of the
Apex Court in Nelson Motis v. Union of India reported in AIR 1992 SC 1981.
(xxiii) In M/s.Oswal Agro Mills Ltd., v. Collector of Central Excise and others reported in 1993 Supp
(3) SCC 716 = AIR 1993 SC 2288, the Apex Court held that, where the words of the statute are plain
and clear, there is no room for applying any of the principles of interpretation, which are merely
presumption in cases of ambiguity in the statute. The Court would interpret them as they stand.
(xxiv) In CIT v. Badhraja and Company reported in 1994 Supp (1) SCC 280, the Hon'ble Apex Court
held that, an object oriented approach, however, cannot be carried to the extent of doing violence to
the plain meaning of the Section used by rewriting the Section or substituting the words in the place
of actual words used by the legislature.
(xxv) In Dadi Jagannadham v. Jammulu Ramulu reported in (2001) 7 SCC 71, the Hon'ble Supreme
Court held that, ™3. We have considered the submissions made by the parties. The settled
principles of interpretation are that the court must proceed on the assumption that the legislature
did not make a mistake and that it did what it intended to do. The court must, as far as possible,
adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if
there is a defect or an omission in the words used by the legislature, the court would not go to its aid
to correct or make up the deficiency. The court could not add words to a statute or read words into it
which are not there, especially when the literal reading produces an intelligible result. The court
cannot aid the legislature s defective phrasing of an Act, or add and mend, and, by construction,
make up deficiencies which are there. (xxvi) In Institute of C.A. of India v. Ajit Kumar Iddya
reported in AIR 2003 Kant. 187, the Karnataka High Court held that, So far as the cardinal law of
interpretation is concerned, it is settled that if the language is simple and unambiguous, it is to be
read with the clear intention of the legislation. Otherwise also, any addition/subtraction of a word is
not permissible. In other words, it is not proper to use a sense, which is different from what the
word used ordinarily conveys. The duty of the Court is not to fill up the gap by stretching a word
used. It is also settled that a provision is to be read as a whole and while interpreting, the intention
and object of the legislation have to be looked upon. However, each case depends upon the facts of
its own. (xxvii) In Nasiruddin v. Sita Ram Agarwal reported in (2003) 2 SCC 577, the Supreme
Court held as follows:
›5. In a case where the statutory provision is plain and unambiguous, the court shall not interpret
the same in a different manner, only because of harsh consequences arising therefrom....

37. The court s jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is
well known that in a given case the court can iron out the fabric but it cannot change the texture of
the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision
is plain and unambiguous. It cannot add or subtract words to a statute or read something into it
which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there
exists a presumption that the legislature has not used any superfluous words. It is well settled that
the real intention of the legislation must be gathered from the language used. ......But the intention
of the legislature must be found out from the scheme of the Act. (xxviii) In Balram Kumawat v.
Union of India reported in 2003 (7) SCC 628, the Hon'ble Supreme Court held that, Contextual
reading is a well-known proposition of interpretation of statute. The classes of a statute should be
construed with reference to the context vis-a-vis the other provisions so as to make a consistent
enactment of the whole statute relating to the subject-matter. The rule of "ex visceribus actus"
should be resorted to in a situation of this nature. (xxix) In State of Gujarat v. Salimbhai
Abdulgaffar Shaikh reported in 2003 (8) SCC 50, the Hon'ble Supreme Court held that, Broadly
speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a Court by
submitting the question to a higher Court.......
........It is well settled principle that the intention of the legislature must be found by reading the
Statute as a whole. Every clause of Statute should be construed with reference to the context and
other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole
Statute. It is also the duty of the Court to find out the true intention of the legislature and to
ascertain the purpose of Statute and give full meaning to the same. The different provisions in the
Statute should not be interpreted in abstract but should be construed keeping in mind the whole
enactment and the dominant purpose that it may express. (xxx) In Indian Dental Association,
Kerala v. Union of India reported in 2004 (1) Kant. LJ 282, the Court held that, The cardinal rule
for the construction of Acts of Parliament is that they should be construed according to the intention
expressed in the Acts themselves. The object of all interpretation is to discover the intention of
Parliament, "but the intention of Parliament must be deduced from the language used", for it is
well-accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make
the law. If the words of the statute are themselves precise and unambiguous, then no more can be
necessary than to expound those words in their ordinary and natural sense. Where the laguage of an
Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in
that case the words of the statute speak the intention of the Legislature. Where the language is plain
and admits of but one meaning, the task of interpretation can hardly be said to arise. The decision in
a case calls for a full and fair application of particular statutory language to particular facts as found.
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from
a statute unless there are adequate grounds to justify the inference that the Legislature intended
something which it omitted to express. A construction which would leave without effect any part of
the language of a statute will normally be rejected. (xxxi) In Shri Ram Saha v. State reported in AIR
2004 SC 5080, the Hon'ble Apex Court held that in applying a purposive construction a word of
caution is necessary that the text of the statute is not to be sacrificed and the Court cannot rewrite
the statute on the assumption that whatever furthers the purpose of the Act must have been
sanctioned.

(xxxii) In State of Jharkhand v. Govind Singh reported in (2005) 10 SCC 437, the Hon'ble Supreme
Court held that, ™2. It is said that a statute is an edict of the legislature. The elementary principle of
interpreting or construing a statute is to gather the mens or sententia legis of the legislature.
13. Interpretation postulates the search for the true meaning of the words used in the statute as a
medium of expression to communicate a particular thought. The task is not easy as the language
is often misunderstood even in ordinary conversation or correspondence. The tragedy is that
although in the matter of correspondence or conversation the person who has spoken the words or
used the language can be approached for clarification, the legislature cannot be approached as the
legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is
concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or
repeal the law so made and can also declare its meaning, but that can be done only by making
another law or statute after undertaking the whole process of law-making.
14. Statute being an edict of the legislature, it is necessary that it is expressed in clear and
unambiguous language.....
15. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the
intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take
upon itself the task of amending or altering the statutory provisions. In that situation the judges
should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial
valour. They have to remember that there is a line, though thin, which separates adjudication from
legislation. That line should not be crossed or erased. This can be vouchsafed by an alert
recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so .
(See Frankfurter: Some Reflections on the Reading of Statutes in Essays on Jurisprudence,
Columbia Law Review, p. 51.)
16. It is true that this Court in interpreting the Constitution enjoys a freedom which is not available
in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock
said in Duport Steels Ltd. v. Sirs [(1980 (1) All.ER 529] (All ER at p. 542c-d):
It endangers continued public confidence in the political impartiality of the judiciary, which is
essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide
their own preferred amendments to statutes which experience of their operation has shown to have
had consequences that members of the court before whom the matter comes consider to be injurious
to the public interest.
19. In D.R. Venkatachalam v. Dy. Transport Commr. [1977 (2) SCC 273] it was observed that courts
must avoid the danger of a priori determination of the meaning of a provision based on their own
preconceived notions of ideological structure or scheme into which the provision to be interpreted is
somewhat fitted. They are not entitled to usurp legislative function under the disguise of
interpretation. (xxxiii) In A.N.Roy Commissioner of Police v. Suresh Sham Singh reported in AIR
2006 SC 2677, the Hon'ble Apex Court held that, It is now well settled principle of law that, the
Court cannot change the scope of legislation or intention, when the language of the statute is plain

and unambiguous. Narrow and pedantic construction may not always be given effect to. Courts
should avoid a construction, which would reduce the legislation to futility. It is also well settled that
every statute is to be interpreted without any violence to its language. It is also trite that when an
expression is capable of more than one meaning, the Court would attempt to resolve the ambiguity
in a manner consistent with the purpose of the provision, having regard to the great consequences of
the alternative constructions. (xxxiv) In Adamji Lookmanji & Co. v. State of Maharastra reported
in AIR 2007 Bom. 56, the Bombay High Court held that, when the words of statute are clear, plain
or unambiguous, and reasonably susceptible to only meaning, Courts are bound to give effect to that
meaning irrespective of the consequences. The intention of the legislature is primarily to be
gathered from the language used. Attention should be paid to what has been said in the statute, as
also to what has not been said.
(xxxv) In State of Haryana v. Suresh reported in 2007 (3) KLT 213, the Hon'ble Supreme Court held
that, One of the basic principles of Interpretation of Statutes is to construe them according to
plain, literal and grammatical meaning of the words. If that is contrary, to or inconsistent with any
express intention or declared purpose of the Statute, or if it would involve any absurdity,
repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged,
so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not
mean what they say lies heavily on the party who alleges it must advance something which clearly
shows that the grammatical construction would be repugnant to the intention of the Act or lead to
some manifest absurdity. (xxxvi) In Sanjay Singh v. U.P. Public Service Commission reported in
(2007) 3 SCC 720, the Supreme Court held that, It is well settled that courts will not add words to a
statute or read into the statute words not in it. Even if the courts come to the conclusion that there is
any omission in the words used, it cannot make up the deficiency, where the wording as it exists is
clear and unambiguous. While the courts can adopt a construction which will carry out the obvious
intention of the legislative or the rule-making authority, it cannot set at naught the legislative intent
clearly expressed in a statute or the rules. (xxxvii) In T.N.State Electricity Board v. Central
Electricity Regulatory Commission reported in 2007 (7) SCC 636, the Hon'ble Supreme Court held
that, Resort can be had to the legislative intent for the purpose of interpreting a provision of law,
when the language employed by the legislature is doubtful or susceptible of meanings more than
one. However, when the language is plain and explicit and does not admit of any doubtful
interpretation, the Supreme Court cannot, by reference to an assumed legislative intent expand the
meaning of an expression employed by the legislature and therein include such category of persons
as the legislature has not chosen to do. (xxxviii) In Visitor Amu v. K.S.Misra reported in 2007 (8)
SCC 594, the Hon'ble Supreme Court held that, It is well settled principle of interpretation of the
statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the
language, which will render a part of the statute devoid of any meaning or application. The Courts
always presume that the legislature inserted every part thereof for a purpose and the legislative
intent is that every of the statute should have effect. The legislature is deemed not to waste its words
or to say anything in vain and a construction which attributes redundancy to the legislature will not
be accepted except for compelling reasons. It is not a sound principle of construction to brush aside
words in a statute as being in apposite surplusage, if they can have appropriate application in
circumstances conceivably within the contemplation of the statute. (xxxix) Hon'ble Justice Sinha in
New India Assurance Co. Ltd., v. Nusli Nerille Wadia reported in 2008 (3) SCC 279, states that,

With a view to read the provisions of the Act in a proper and effective manner, we are of the
opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be
avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court
must place itself in the chair of a reasonable legislator/ author. So done, the rules of purposive
construction have to be resorted to which would require the construction of the Act in such a
manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary
under the statutory scheme to fulfill its constitutional obligations.
(XL) In Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., reported in (2008) 4 SCC 755, the
Hon'ble Supreme Court, at Paragraph 52 held as follows:
2. No doubt ordinarily the literal rule of interpretation should be followed, and hence the court
should neither add nor delete words in a statute. However, in exceptional cases this can be done
where not doing so would deprive certain existing words in a statute of all meaning, or some part of
the statute may become absurd. (XLi) In Ansal Properties & Industries Ltd. v. State of Haryana,
reported in (2009) 3 SCC 553, the Hon'ble Supreme Court held that, œ0. In Ganga Prasad Verma
(Dr.) v. State of Bihar [1995 Supp (1) SCC 192], it has been held that: (SCC p. 195, para 5) . Where
the language of the Act is clear and explicit, the court must give effect to it, whatever may be the
consequences, for in that case the words of the statute speak the intention of the legislature. (XLii)
In Mohd. Shahabuddin v. State of Bihar, reported in (2010) 4 SCC 653, the Hon'ble Supreme Court
held that, ™79. Even otherwise, it is a well-settled principle in law that the court cannot read
anything into a statutory provision which is plain and unambiguous. The language employed in a
statute is a determinative factor of the legislative intent. If the language of the enactment is clear
and unambiguous, it would not be proper for the courts to add any words thereto and evolve some
legislative intent, not found in the statute. Reference in this regard may be made to a recent decision
of this Court in Ansal Properties & Industries Ltd. v. State of Haryana [2009 (3) SCC 553]
180. Further, it is a well-established principle of statutory interpretation that the legislature is

specially precise and careful in its choice of language. Thus, if a statutory provision is enacted by the
legislature, which prescribes a condition at one place but not at some other place in the same
provision, the only reasonable interpretation which can be resorted to by the courts is that such was
the intention of the legislature and that the provision was consciously enacted in that manner. In
such cases, it will be wrong to presume that such omission was inadvertent or that by incorporating
the condition at one place in the provision the legislature also intended the condition to be applied
at some other place in that provision. (XLiii) In Satheedevi v. Prasanna reported in (2010) 5 SCC
622, the Hon'ble Supreme Court held as follows:
™2. Before proceeding further, we may notice two well-recognised rules of interpretation of
statutes. The first and primary rule of construction is that the intention of the legislature must be
found in the words used by the legislature itself. If the words used are capable of one construction,
only then it would not be open to the courts to adopt any other hypothetical construction on the
ground that such hypothetical construction is more consistent with the alleged object and policy of
the Act. The words used in the material provisions of the statute must be interpreted in their plain
grammatical meaning and it is only when such words are capable of two constructions that the

question of giving effect to the policy or object of the Act can legitimately arise Kanai Lal Sur v.
Paramnidhi Sadhukhan [AIR 1957 SC 907]
13. The other important rule of interpretation is that the court cannot rewrite, recast or reframe the
legislation because it has no power to do so. The court cannot add words to a statute or read words
which are not there in it. Even if there is a defect or an omission in the statute, the court cannot
correct the defect or supply the omission - Union of India v. Deoki Nandan Aggarwal [1992 Supp (1)
SCC 323] and Shyam Kishori Devi v. Patna Municipal Corpn. [AIR 1966 SC 1678] (XLiv) In Sri
Jeyaram Educational Trust & Ors., v. A.G.Syed Mohideen & Ors. reported in 2010 CIJ 273 SC (1),
the Hon'ble Supreme Court held that, "6. It is now well settled that a provision of a statute should
have to be read as it is, in a natural manner, plain and straight, without adding, substituting or
omitting any words. While doing so, the words used in the provision should be assigned and
ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or
ascribing the natural and normal meaning to the words on such reading, leads to ambiguity,
vagueness, uncertainty, or absurdity which were not obviously intended by the Legislature or the
Lawmaker, a court should open its interpretation tool kit containing the settled rules of construction
and interpretation, to arrive at the true meaning of the provision. While using the tools of
interpretation, the court should remember that it is not the author of the Statute who is empowered
to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter
cannot alter or amend the law. It can only interpret the provision, to make it meaningful and
workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The
purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make
it what the legislature intended it to be."
21. As per Chapter IV of sub-Section (20) of Section 19 of the Recovery of Debts due to the Bank and
Financial Institution Act, 1993, the Tribunal may, after giving the applicant and the defendant an
opportunity of being heard, pass such interim or final order, including the order for payment of
interest from the date on or before which payment of the amount is found due up to the date of
realization or actual payment, on the application as it thinks fit to meet the ends of justice. Thus, the
Tribunal, while passing final orders, is bound to consider the actual payments made by the
defendant, towards the outstanding loan amount.
22. Sub-Section (20A) of Section 19 of the said Act, states that where it is proved to the satisfaction
of the Tribunal that the claim of the applicant has been adjusted wholly or in part, by any lawful
agreement or compromise in writing and signed by the parties or where the defendant has repaid or
agreed to repay the claim of the applicant, the Tribunal shall pass orders recording such agreement,
compromise or satisfaction of the claim. Tribunal is mandated to consider, as to whether, the claim
of the applicant has been adjusted wholly or in part. In the case on hand, bank has contended that
the claim in O.A.No.219 of 2014, was made, after adjusting the payment of Rs.1 Lakh and deposit of
Rs.6 Lakhs in S.A.No.30 of 2012.
23. Section 19(22) states that the Presiding Officer shall issue a certificate under his signature, on
the basis of the order of the Tribunal to the Recovery Officer for recovery of the amount of debt
specified in the certificate. Sub-Section (25) of the said 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. Latter portion of the mandate, "to secure
ends of justice", should not be lost sight of, by the Tribunal or the Court.
24. Section 22 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993, deals with
the procedure and powers of the Tribunal and the Appellate Tribunal. Sub-Section (2) of the said
Act, states that the Tribunal and the Appellate Tribunal shall have, for the purposes of discharging
their functions under the 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.
the validity of the Recovery Certificate and amendment thereof. Sub-Section (2) of the said section
states that notwithstanding the issue of a certificate to a Recovery Officer, the Presiding Officer shall
have power to withdraw the certificate or correct any clerical or arithmetical mistake in the
certificate by sending intimation to the Recovery Officer. Section 26(3) states that the Presiding
Officer shall intimate to the Recovery Officer any order withdrawing or canceling a certificate or any
correction made by him under sub-section (2).
26. At this juncture, this Court deems it fit to consider Section 152 of the Civil Procedure Code, deals
with amendment of judgments, decrees or orders and it states that clerical or arithmetical mistakes
in judgments, decrees or orders or errors, arising therein from any accidental slip or omission may
at any time be corrected by the Court, either of its own motion or on the application of any of the
parties. The Tribunal is conferred with the powers of the Civil Court to correct clerical or
arithmetical mistake, in the certificate issued. Sections 26 and 27 of Recovery of Debts Due to Bank
and Financial Institutions Act, 1993, also provides for withdrawal or cancellation of the Recovery
Certificate, as the case may be. As the provisions are similar, we deem it fit to consider, some of the
decisions, dealing with clerical or arithmetical mistakes, rendered under Section 152 of the Civil

Procedure Code, "Section 152 empowers the court to rectify the clerical or arithmetical mistake or
accidental slip and omission in the decree, orders or judgements and it is based on two principles (1)
the act of the court should not prejudice any party (2) the court has a duty to see that its record is
true. Bishnu Charan v. Dhai Bisuial, AIR 1977 Ori. 68 and Puthan v. Poomulli. AIR 1970 Kant. 57
and Somann v. Apputy: AIR 1988 Ker. 212.
The principle underlying the provisions contained in Sections 151 and 152 are entirely different from
the principle on the basis of which power of review is conferred on courts. Every court is constituted
for the purpose of doing justice according to law and must be deemed to possess as a necessary
corollary and has inherent in its very constitution of such powers as may be necessary to do the right
and to undo the wrong in the course of administration of justice. This is the recognised principle
underlying the provisions contained in Section 151 of the Code (J.M.D. Syndicate v. I.T. Commr.,
New Delhi, AIR 1977 (SC) 1348). Section 152 of the Code is again based on two important principles.
The first is that an act of the court shall prejudice no party, and the other, that courts have a duty to
see that their records are true and they represent the correct state of affairs (Tulsipur Sugar Co. v.
State of U.P., AIR 1970 (SC) 70 : 1970 Lab IC 3 : (1969)2 Lab W 662 : (1970)1 SCJ 137 : (1970)1
SCA43 : (1970)1 UmNP 851 : 1971(1) CR 420).
This is a corrective provision in decree and order by the Court. So where arithmetical and clerical
error in judgement has crept in and consequently the decree as passed exceeds claims made in the
plaint, the Court can suo motu correct such error even when appeal or cross objections have not
been filed by Defendants. Vijaya Bank v. S. Bhathija, AIR 1994 Kant 123 (para 24) (DB).
Power of rectification, is not a power to give second thought but it refers to removal of clerical or
arithmetical errors or accidental slips. This power is vested irrespective of application of provision of
Section 152, CPC. Jayalakshmi Coelho u. Oswald Joseph Coelho, AIR 2001 (SC) 1084 : 2001(3) JT
356 : 2001(2) Scale 277 : (2001) 4 SCC 181 : 2001(2) Supreme 209 : 2001(2) SCJ 174: 2001(4) SRJ
81 (28.2.2001)."
27. Though Section 152 CPC does not provide for withdrawal of a judgment or decree or order, as
the case may be, Recovery of Dues due to Banks and Financial Institutions Act, 1993, even provides
for withdrawal or cancellation of the certificate of recovery, issued to the Recovery Officer. Power to
correct clerical or arithmetical mistake, is provided both in Section 152 of the Code of Civil
Procedure, 1903, as well as, in the Recovery of Debts due to the Bank and Financial Institution Act,
1993. Both the provisions are extracted hereunder, side by side:
Section 152 CPC Section 26 of the RDBI Act
152. Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments,

decrees or orders or errors arising therein from any accidental slip or omission may at any time be
corrected by the Court either of its own motion or on the application of any of the parties.
26. Validity of certificate and amendment thereof. (1) It shall not be open to the defendant to
dispute before the Recovery Officer the correctness of the amount specified in the certificate, and no

objection to the certificate on any other ground shall also be entertained by the Recovery Officer. (2)
Notwithstanding the issue of a certificate to a Recovery Officer, the Presiding Officer shall have
sending intimation to the Recovery Officer. (3) The Presiding Officer shall intimate to the Recovery
Officer any order withdrawing or canceling a certificate or any correction made by him under sub-
section (2).
28. Though Section 152 of Code of Civil Procedure, empowers the Court to correct any mistake,
provided therefor, either on its own motion or on the application of any of the parties, Section 26 of
the Recovery of Debts Due to Bank and Financial Institutions Act, 1993, does not enable such
correction, clerical or arithmetic mistake, by the Recovery Officer, at the instance of the defendant.
On the contra, it specifically bars the defendant to dispute before the Recovery Officer, the
correctness of the amount specified in the certificate.
29. However, as per sub-Section (2) of Section 26 of the Act, notwithstanding the issue of a
certificate to the Recovery Officer, the Presiding Officer shall have power to withdraw the certificate
or correct any clerical or arithmetical mistake, in the certificate by sending an intimation to the
Recovery Officer. Once a certificate is issued by the Presiding Officer, he may not, at all instances,
verify the same, and make necessary corrections, if any, clerical or arithmetic, as the case may be.
Therefore, while issuing a recovery certificate, if any, clerical or arithmetic mistake, crept in, the
legislature has provided an opportunity to the defendant, to approach the Presiding Officer, to
rectify the same. Has the legislature, restricted only to correct arithmetical or clerical error and not
empowered the Presiding Officer, to withdraw or cancel the recovery certificate, issued by the
Tribunal?
30. The opening sentence of Sub-Section (2) of Section 26 starts with a notwithstanding clause. At
this juncture, we also deem it fit to consider the effect of notwithstanding clause and on that aspect,
few decisions are considered.
(i) In State of West Bengal v. Union of India reported in [1964] 1 SCR 371, it is observed as under:
"The Court must ascertain the intention of the legislature by directing its attention not merely to the
clauses to be construed but to the entire statute; it must compare the clause with the other parts of
the law and the setting in which the clause to be interpreted occurs."
(ii) In Union of India v. I.C.Lala reported in AIR 1973 SC 2204, the Hon'ble Supreme Court held that
non obstante clause does not mean that the whole of the said provision of law has to be made
applicable or the whole of the other law has to be made inapplicable. It is the duty of the Court to
avoid the conflict and construe the provisions to that they are harmonious.
(iii) In Union of India v. G.M.Kokil reported in AIR 1984 SC 1022, the Supreme Court, at Paragraph
10, held as follows:

It is well-known that a non-obstante clause is a legislative device which is usually employed to give
over-riding effect to certain provision over some contrary provision that may be found either in the
same enactment or some other enactment, that is to say, to avoid the operation and effect of all
contrary provisions.
(iv) In Chandavarkar Sita Ratna Rao v. Ashalata S.Guram reported in 1986 (4) SCC 447, at
Paragraph 67, the Hon'ble Supreme Court held as follows:
ž7. A clause beginning with the expression "notwithstanding any thing contained in this Act or in
some particular provision in the Act or in some particular Act or in any law for the time being in
force, or in any contract" is more often than not appended to a section in the beginning with a view
to give the enacting part of the section in case of conflict an overriding effect over the provision of
the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite
of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or
document mentioned the enactment following it will have its full operation or that the provisions
embraced in the non-obstante clause would not be an impediment for an operation of the
enactment. See in this connection the observations of this Court in The South India Corporation (P)
Ltd., v. The Secretary, Board of Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215-[1964] 4 SCR
280.
(v) In Vishin N.Kanchandani v. Vidya Lachmandas Khanchandani reported in AIR 2000 SC 2747, at
Paragraph 11, held that, There is no doubt that by non-obstante clause the Legislature devices
means which are usually applied to give overriding effect to certain provisions over some contrary
provisions that may be found either in the same enactment or some other statute. In other words
such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is
equivalent to showing that the Act shall be no impediment to measure intended. To attract the
applicability of the phrase, the whole of the section, the scheme of the Act and the objects and
reasons for which such an enactment is made has to be kept in mind.
(vi) In ICICI Bank Ltd., v. SIDCO Leathers Ltd., reported in 2006 (10) SCC 452, the Hon'ble
Supreme Court, at Paragraphs 34, 38, 46 and 49, held as follows:
"34. Section 529-A of the Companies Act no doubt contains a non-obstante clause but in construing
the provisions thereof, it is necessary to determine the purport and object for which the same was
enacted.
......
36. The non-obstante nature of a provision although may be of wide amplitude, the interpretative
process thereof must be kept confined to the legislative policy.......
37. A non-obstante clause must be given effect to, to the extent the Parliament intended and not
beyond the same.

38. Section 529-A of the Companies Act does not ex facie contain a provision (on the aspect of
priority) amongst the secured creditors and, hence, it would not be proper to read thereinto things,
which the Parliament did not comprehend."
(vii) The Hon'ble Supreme Court in Central Bank of India v. State of Kerla reported in 2009 (4) SCC
94, at Paragraphs 103 to 107, the Hon'ble Supreme Court considered as follows:
"103. A non obstante clause is generally incorporated in a statute to give overriding effect to a
particular section or the statute as a whole. While interpreting non obstante clause, the Court is
required to find out the extent to which the legislature intended to do so and the context in which
the non obstante clause is used. This rule of interpretation has been applied in several decisions.
104. In State Bank of West Bengal v. Union of India [(1964) 1 SCR 371], it was observed that:
68. ......the Court must ascertain the intention of the legislature by directing its attention not merely
to the clauses to be construed but to the entire statute; it must compare the clause with the other
parts of the law and the setting in which the clause to be interpreted occurs."
105. In Madhav Rao Jivaji Rao Scindia v. Union of India and another [(1971) 1 SCC 85],
Hidayatullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to
exclude every consideration arising from other provisions of the same statute or other statute but
"for that reason alone we must determine the scope" of that provision strictly. When the section
containing the said clause does not refer to any particular provisions which it intends to override but
refers to the provisions of the statute generally, it is not permissible to hold that it excludes the
whole Act and stands all alone by itself. A search has, therefore, to be made with a view to
determining which provision answers the description and which does not.
106. In R.S.Raghunath v. State of Karnataka and another [(1992) 1 SCC 335], a three-Judge Bench
referred to the earlier judgments in Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369],
Dominion of India v. Shrinbai A. Irani [AIR 1954 SC 596], Union of India v. G.M.Kokil [1984
(Supp.) SCC 196], Chandravarkar Sita Ratna Rao v. Ashalata S.Guram [(1986) 4 SCC 447] and
observed:
".........The non-obstante clause is appended to a provision with a view to give the enacting part of
the provision an overriding effect in case of a conflict. But the non-obstante clause need not
necessarily and always be co-extensive with the operative part so as to have the effect of cutting
down the clear terms of an enactment and if the words of the enactment are clear and are capable of
a clear interpretation on a plain and grammatical construction of the words the non-obstante clause
cannot cut down the construction and restrict the scope of its operation. In such cases the
non-obstante clause has to be read as clarifying the whole position and must be understood to have
been incorporated in the enactment by the legislature by way of abundant caution and not by way of
limiting the ambit and scope of the Special Rules."

107. In A.G.Varadarajulu v. State of Tamil Nadu [(1998) 4 SCC 231], this Court relied on Aswini
Kumar Ghose's case. The Court while interpreting non obstante clause contained in Section 21-A of
Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held :-
"It is well settled that while dealing with a non obstante clause under which the legislature wants to
give overriding effect to a section, the court must try to find out the extent to which the legislature
had intended to give one provision overriding effect over another provision. Such intention of the
legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar
Ghose v. Arabinda Bose [AIR 1952 SC 369], Patanjali Sastri, J. observed:
"The enacting part of a statute must, where it is clear, be taken to control the non obstante clause
where both cannot be read harmoniously;"
validity of the certificate and amendment thereof. When the heading of Section 27 of the Act, deals
with validity and speaks about withdrawal or cancellation or correction either clerical or arithmetic,
as the case may be, with an obligation, on the part of the Presiding Officer, to intimate the Recovery
Officer, we deem it fit to consider few decisions on interpretation of statutes, as to how heading,
given by the legislature, has to be understood,
(i) In Refugee Co-operative Housing Society Ltd., New Delhi v. Harbans Singh Bhasin reported in
AIR 1982 Del. 335, the Court that, Headings prefixed to a section may be read along with the
enacting provisions of the section to resolve any doubt-heading cannot prevail when intention of the
Legislature can be gathered by reference to other sections.
(ii) In Raichurmatham Prabhakar v. Rawatmal Dugar reported in AIR 2004 SC 3625, the Hon'ble
Supreme Court held that, The view is now settled that the Headings or Titles pre-fixed to sections
or group of sections can be referred to in construing an Act of the Legislature. But conflicting
opinions have been expressed on the question as to what weight should be attached to the Headings
or Titles. According to one view, the Headings might be treated as preambles to the provisions
following them so as to be regard as giving the key to opening the mind of the draftsman of the
clauses arranged thereunder. According to the other view, resort to Heading can only be taken when
the enacting words are ambiguous. They cannot control the meaning of plain words but they may
explain ambibuities. (Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, v.
2004, pp. 152, 155). It is permissible to assign the heading or Title of a section a limited role to play
in the construction of statutes. They may be taken as very broad and general indicators of the nature
of the subject-matter dealt with thereunder. The Heading or Title may also be taken as a condensed
name assigned to indicate collectively the characteristics of the subject-matter dealt with by the
enactment underneath; though the name would always be brief having its own limitations. In case of
conflict between the plain language of the provision and the meaning of the Heading or Title, the
Heading or Title would not control the meaning which is clearly and plainly discernible from the
language of the provision thereunder.

(iii) In Mahesh Housing Co-operative Society Ltd., v. State of West Bengal reported in 2004 (1) CHN
10, the Court held that, That the headings constitute an important part of the Act and may be read
not only as explaining the sections, which immediately follow them, but the headings may be read as
preamble to a statute and may be looked for that purpose to explain the enactment. The same can be
considered as key to the construction of section, which follow them.
32. Reverting to the facts on hand, final order in O.A.No.219 of 2014, has been passed by the
Tribunal on 01.12.2015. In S.A.No.30 of 2012, conditional order has been passed on 08.02.2012.
Deposits have been made on 09.02.2012 and 08.03.2012 respectively, against the OD account of the
petitioner. Thus, the conditional order and deposit have been made prior to the final order in
O.A.No.212 of 2014, dated 01.12.2015. Likewise, in S.A.No.18 of 2015, conditional order to deposit
Rs.9 Lakhs has been ordered on 23.01.2015 and deposit has been made on 24.01.2015 and
07.02.2015 respectively. Even taking it for granted that the petitioner has failed to bring it to the
notice of the Tribunal, deposits have been made in the Over Draft Account, bank cannot feign
ignorance of the same, and blame the petitioner for not bringing it to the notice of the Tribunal,
which passed final orders in O.A.No.219 of 2014 on 01.12.2015. Had the bank brought to the notice
of the Tribunal, the deposits made to the OD account, the Tribunal could have passed appropriate
orders. At this juncture, it is to be noted that Mr.S.Seethuraman, learned counsel appearing for the
2nd respondent-Bank submitted a sum of Rs.6,00,000/- (Rupees six lakhs only), deposited prior to
the filing of O.A.No.219 of 2014, has already been adjusted towards the loan account. Question is
whether the bank has brought the same to the notice of the Tribunal, when final order in O.A.No.219
of 2014, was passed. Absolutely, there are no details, in the final order.
33. Section 26 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, deals with
validity of certificate and amendment thereof.
"26. Validity of certificate and amendment thereof. (1) It shall not be open to the defendant to
dispute before the Recovery Officer the correctness of the amount specified in the certificate, and no
objection to the certificate on any other ground shall also be entertained by the Recovery Officer.
(2) Notwithstanding the issue of a certificate to a Recovery Officer, the Presiding Officer shall have
sending intimation to the Recovery Officer.
(3) The Presiding Officer shall intimate to the Recovery Officer any order withdrawing or canceling a
certificate or any correction made by him under sub- section (2)."
34. Section 26(1) of the Act states that, "it shall not be open to the defendant to dispute before the
Recovery Officer the correctness of the amount specified in the certificate, and no objection to the
certificate on any other ground shall also be entertained by the Recovery Officer." As per Section
26(3) the Presiding Officer shall intimate to the Recovery Officer any order withdrawing or
cancelling a certificate or any correction made by him, under sub-section (2). When statute does not
enable the defendant to question the amount specified, before the recovery officer, contention of the
bank that the borrower should have filed an application before the Recovery Officer, cannot be

accepted.
35. As per sub-Section (2) of Section 26 of the Recovery of Debts Due to Bank and Financial
Institutions Act, 1993, notwithstanding the issue of a certificate to a Recovery Officer, the Presiding
Officer shall have the power to withdraw the certificate or correct any clerical or arithmetical
mistake in the certificate by sending intimation to the Recovery Officer. There are three instances in
Section 26(2) of the Act, where the Presiding Officer can exercise his jurisdiction. He can, (i)
withdraw the certificate, (ii) correct any clerical error, and (iii) correct any arithmetical error.
36. In Section 26(2) of the Act, the word "or" is used twice, "withdraw the certificate or correct any
clerical or arithmetical mistake". There could be a clerical error, while issuing a recovery certificate.
There is a possibility of an arithmetical error. Both need not be present. If Section 26(2) of the Act,
is read as a whole, we find no reason to read the word "or" as "and", that only on the happening of
both, a recovery certificate could be corrected by the Presiding Officer.
37. In Section 26 of Recovery of Debts due to Banks and Financial Institutions Act, 1993,
Legislature, has consciously used the words withdrawing or cancelling. Though under what
circumstances, a recovery certificate could be withdrawn, is not specifically mentioned in Section
26(2) of the Act, a bare reading of Section 26(2) of the Recovery of Debts Due to Bank and Financial
Institutions Act, 1993, makes it clear that power is conferred on the presiding officer to withdraw a
certificate or correct any clerical or arithmetical error. In sub-section (3) of Section 26 of the Act,
cancellation is also mentioned.
38. Reading of Section 27(2) makes it clear that where a certificate for recovery of amount has been
issued, the Presiding Officer, shall keep the Recovery Officer informed of any amount paid or time
granted for payment, subsequent to the issue of such certificate to the Recovery Officer. As per sub
section (4) of Section 27 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993,
where a certificate for the recovery of debt has been received by the Recovery Officer and
subsequently the amount of the outstanding demand is reduced or enhanced, as a result of an
appeal, the Presiding Officer shall, when the order which was the subject-matter of such appeal has
become final and conclusive, amend the certificate or withdraw it, as the case may be.
Circumstances under which a certificate of recovery, be amended or withdrawn, have been
mentioned in sub section (4) of section 27 of the Act.
39. In W.P.No.29923 of 2011, dated 12.09.2012 [U.Kirubanandam v. State Bank of India], the
question called upon for consideration was whether after obtaining a recovery certificate, under the
Recovery of Debts due to the Bank and Financial Institution Act, 1993, the secured creditor can take
recourse to SARFAESI Act, 2002, by issuing a notice, under Section 13(2) of the Act. Answering the
question in the affirmative and while considering the powers of the Presiding Officer, to amend or
modify the amount or to even cancel the recovery certificate, a Hon'ble Division Bench, observed as
hereunder:
"18. Coming to the main contention of the learned counsel for the petitioner, we have already
pointed out that the petitioner questions the right of the Bank to proceed under the SARFAESI Act,

2002, after having obtained a Certificate of Recovery under the 1993 Act. The counsel for the
petitioner contends that once a Certificate of Recovery is issued under the 1993 Act, it is the
Recovery Officer, who is empowered by Section 25 of the 1993 Act, to proceed to recover the amount
by any one or more of the modes mentioned in Clauses (a), (b) or (c) of Section 25. The modes of
recovery prescribed in these Clauses are (i) attachment and sale of the properties of the defendant
(ii) arrest of the defendant and his detention in prison and (iii) appointment of Receiver for the
management of the properties.
19. Apart from the 3 modes mentioned in Section 25, the 1993 Act also prescribes several other
modes in Section 28. But nevertheless, the 1993 Act, retains intact, the powers of the Presiding
Officer of the Tribunal at any time either to withdraw the Certificate in terms of Section 26(2) or to
modify the amount specified in the Certificate. Therefore, it is clear that the power of the Recovery
Officer to recover the money is subject to the power of the Presiding Officer of the Tribunal to
amend the Certificate of Recovery or even cancel it. Similarly the power of the Recovery Officer to
take any one of the modes of recovery prescribed in Section 25 or 28, is subject to any payments
made by any person, including a garnishee or even the borrower or the guarantor. The issuance of a
Certificate of Recovery does not result in obliteration of the mortgage in the property or the
destruction of any of the rights that flow out of the mortgage."
40. Thus, from the above judgment, it could be deduced that in a given case, where the secured
property is sold by the Bank, invoking SARFAESI Act, 2002 and if the borrower or the guarantor, as
the case may be, has not challenged the sale of the secured asset, in the manner known to law, and if
the sale amount is appropriated by the bank, towards the outstanding amount, the defendant can
always approach the Presiding Officer, under Section 26(2) to seek for modification of the amount
specified in the recovery certificate.
41. The Presiding Officer is empowered to act, even suo motu under Section 26 of the RDBI Act,
1993. The power conferred on the Presiding Officer, under Sections 26 and 27 of the Act, 1993 and
the desirability of exercising such power, in appropriate cases, in our considered view, is the
legislative intent and that is why, Sections 26 and 27 have been incorporated in Recovery of Debts
due to Bank and Financial Institution Act, 1993. An arithmetical mistake is a mistake of calculation.
A clerical mistake is a mistake in writing or typing and there could be a mistake in the full
description of the disputed property, repayment not taken note of and there may be other cases. The
above are only illustrative.
42. Section 26 of the Recovery of Debts Due to the Bank and Financial Institutions Act, 1993, is
based on the laudable principle that an act of the Tribunal shall prejudice no party and that the
Presiding officer has a duty to see that the records are true and represent the correct state of affairs.
Procedural laws are primarily meant to do justice between the parties. If there are mistakes, capable
of being rectified, the Presiding Officer should rectify the mistakes and do justice between the
parties. In our considered view that Section 26 of the said Act, clearly gives power to the Presiding
Officer, to correct clerical or arithmetical mistakes in the recovery certificate, either of its own
motion or on the application of any of the parties to the lis, and therefore, it is not necessary that the
aggrieved party should file an appeal or review for effecting the correction.

43. Going through the statutory provisions and the decisions, on interpretation of statutes, we are of
the considered view that there cannot be any ambiguity that the Legislature has used the words,
withdraw or correct clerical or arithmetical error or cancel a recovery certificate. Reading of the
statute in entirety, and having regard to the literal and grammatical meaning of the words, used in
Sections 26 and 27 of the RDBI Act, 1993, the legislative intend that, (i) the act of the Court, in the
case on the Tribunal should not prejudice any party, (ii) Court/Tribunal, has a duty to see that its
reflects proper and true record, the context in which, Sections 26 and 27 of the RDBI Act, are carved
out, under the heading validity and amendment of the Recovery Certificate by the Presiding Officer,
principles of interpretation that legislature does not waste the words or say invain, and other
decisions, we are of the considered view that, the Presiding Officer, has failed to advert to the above
and exercise his jurisdiction.
44. Under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, the
defendant can claim set off, or make a counter claim. In the case on hand, the petitioner/defendant
has made a deposit of Rs.6.00 Lakhs pursuant to a conditional order in S.A.No.30/2012 and before
this Court, it is the admitted case of the bank that the amount deposited in OD Account, has been
appropriated, towards the outstanding amount. If that be the case, even if the petitioner/defendant
had failed to raise any additional averment, in the reply to O.A.No.212/2014 or claimed set off, we
are of the view that it is the duty of the bank, to bring it to the notice of the Tribunal, before the final
determination of the amount due and payable by the petitioner/defendant.
45. Validity of the certificate issued under sub section (7) of Section 19 of the Recovery of Debts due
to Banks and Financial Institutions Act, 1993, depends upon the amount determined by the
Tribunal. On the facts and circumstances of the case, the bank has contended that the Tribunal has
not committed any clerical or arithmetical mitake, and therefore, there is no need to withdraw or
cancel the recovery certificate issued. But, as observed earlier, when the bank, had obtained a final
order in O.A.No.219 of 2014, dated 01.12.2015, by not disclosing the credit of Rs.6.00 Lakhs, in the
OD account, and obtained an order for the entire amount of Rs.18,69,520/- is claimed in
O.A.No.219/2014. When the defendant/petitioner has brought to the notice of the Presiding Officer,
by filing an application in M.A.Sr.No.4870 of 2016, then, we are of the considered view that in the
light of section 26 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, the
Presiding Officer, who issued the certificate is duty bound to consider as to whether the Recovery
Certificate is valid or not, keeping in mind that Section 26 of the Act, deals with "validity of
certificate and amendment thereof". If all the certificates issued by the Presiding Officer, are to be
construed as valid, then there is no reason as to why the legislature, has used the word, "validity" in
section 26(2) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, and as to
why, the legislature has empowered the Presiding Officer to withdraw, or make corrections if there
is any clerical or arithmetical mistake and even to cancel the recovery certificate.
46. If the Tribunal which passed the order has to be construed as a functus officio, then there is no
need to confer powers on the Presiding Officer of the Tribunal to withdraw, or cancel or correct
clerical and arithmetical mistakes. Courts or Tribunal, may sometimes err, if the facts, are not
correctly putforth by the contesting parties, on the claim made, rights inter se, disputed, as the case
may be. Situations warranting, total withdrawal or cancellation or corrections, either clerical or

arithmetical to be made, depends upon facts of each case. But, it cannot be contended that no power
is conferred on the Presiding Officer, to withdraw or cancel or correct clerical or arithmetical error.
Legislature, has consciously incorporated Sections 26 and 27 in the Recovery of Debts due to Banks
and Financial Institutions Act, 1993, similar to Section 152 of the Civil Procedure Code, 1903.
47. Logic and reasoning of the legislature that a litigant should not be put in a disadvantages
situation by the act of court, and that the order should reflect the correct state of affairs, as
interpreted by the Courts in matters, under Section 152 of the Code of Civil Procedure, equally
applies to Sections 26(2) and (3) of the Recovery of Debts Due to the Bank and Financial
Institutions Act, 1993.
48. On the facts and circumstances of the instant case, called upon to decide, as to whether the
Presiding Officer, has jurisdiction and power to withdraw or cancel the recovery certificate, for the
reasons to be recorded in writing, we are of the view that payment of Rs.6.00 Lakhs, made to the
credit of the loan OD account, ought to have been considered. O.A.No.16 of 2013, has been filed on
the file of the Debts Recovery Tribunal-I, Chennai, on the basis of the amount mentioned in section
13(2) notice, ie., Rs.18,69,520/-. Final order of the Tribunal in O.A.No.219/2014, does not reflect the
same. The petitioner should not suffer an order of the Tribunal, for which Recovery Certificate is
issued by the Presiding Officer, and that the defendant/petitioner, should not be driven to the
appellate forum.
49. Keeping in mind, the legislature intend, as to why, Section 152 CPC, has been enacted in the
Code of Civil Procedure, 1903 and if a similar provision is incorporated in Section 26(2) of Recovery
of Debts due to Banks and Financial Institutions Act, 1993, in our considered view, the Presiding
Officer, ought to have considered, the averments made in I.A.No.4869 of 2016. Legislature, may add
a new section, or incorporate an existing provision from any other statute, simpliciter or with some
change, when, special statutes are enacted. The Presiding Officer of the Debt Recovery Tribunal,
cannot say that he has no powers to withdraw or cancel, or correct any clerical or arithmetical, after
issuing the Recovery Certificate, and that the bank cannot contend that the defendant/petitioner
should approach the Recovery Officer.
50. When the Presiding Officer of the Debts Recovery Tribunal - II, Chennai has issued a recovery
certificate, in favour of the applicant in terms of the final order, directing Rs.18,69,520/- together
with interest at 9% (simple) p.a., from the date of original application till realisation with costs from
the defendants 1 and 2 and in default to sell the mortgaged property described in the Schedule to the
OA, the Debts Recovery Officer does not have any jurisdiction or powers, to alter the decree and
recovery certificate issued by the Presiding Officer.
51. The Debts Recovery Officer, is only an Officer, to execute the decree/Recovery Certificate issued
by the Presiding Officer. He cannot sit on an appeal over the Recovery Certificate, issued by the
Presiding Officer. In such a view of the matter, when the writ petitioner filed M.A.Sr.No.4870 of
2016, to withdraw the Recovery Certificate in D.R.C.No.122 of 2016, dated 02.02.2016, pending
disposal of S.A.No.18 of 2015 on the file of the Debts Recovery Tribunal, Madurai and
M.A.Sr.No.4869 of 2016, has been filed to stay the proceedings of the Recovery Officer, pending

disposal of S.A.No.18 of 2015, on the file of the Debts Recovery Tribunal, Madurai, the Tribunal
ought to have considered the averments of the writ petitioner, set out in the supporting affidavits, on
the prayer sought for.
52. At this juncture, it is relevant to extract paragraph 5 of the affidavits, which reads thus,
Therefore, as on date, I have deposited Rs.16,00,000/- (Rupees Sixteen lakhs), as regards the
schedule mentioned property, as against Rs.24,28,024.22 claimed by the Bank in DRC No.122 of
2016, dated ---. Whereas, this amount deposited has not been considered by the first respondent
Bank and suppressed the same. I have not cheated or deceived anyone. I have paid Rs.16,00,000/-.
But the Bank is not ready and willing to account this Rs.16,00,000/- as against my original loan
amount or deduct it from the principal amount. If this is done, then I am not a defaulter as such.
Therefore, the very Recovery Certificate obtained by it in DRC No.122 of 2016 is tainted with malice
and ingenuine.
53. When the writ petitioner has categorically stated that both Rs.15 lakhs, deposited in S.A.No.30 of
2012 and S.A.No.18 of 2015 respectively and Rs.1 lakh had already been paid to the Bank, can be
given credit by the Bank, as against the loan amount and be deducted, from the principal amount,
the Debts Recovery Tribunal - II, Chennai, while passing orders in M.A.Sr.Nos.4870 of 2010 in
D.R.C.No.122 of 2016, ought to have considered the same. Payment of Rs.1 lakh and deposit of Rs.6
lakhs, against the OD Account of the writ petitioner, totalling a sum of Rs.7 lakhs, have been done
prior to the filing of the Original Application. The Tribunal, ought to have considered plea for
adjustment of the amount, if not done by the Bank. The Tribunal, ought to have considered as to
whether a sum of Rs.9 lakhs deposited in S.A.No.18 of 2015, has to be deducted, towards the claim
amount or not.
54. As per Section 26 (1) of the Act, it shall not be open to the writ petitioner/first defendant to
dispute before the Recovery Officer, the correctness of the amount specified in the certificate and
that therefore, Miscellaneous Application Sr.No.4870 of 2016 filed by the writ petitioner, falls
within Section 26 (2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.
According to the writ petitioner, she has suffered a recovery certificate for an amount, more than
what she has paid/deposited and she has also accepted for adjusting the same towards the loan
amount and in such circumstances, ought not to have been denied the benefit of rectification of
recovery certificate issued earlier. The Tribunal is not right in stating that once recovery certificate is
issued,it cannot be corrected. Having held that the power is conferred on the Tribunal, under
Section 26 of the Act, which has failed to exercise its jurisdiction, we are inclined to set aside the
order impugned in this writ petition.
55. Accordingly, proceedings of the Debts Recovery Tribunal - II, Chennai, dated 21.06.2016, made
in M.A.SR.No.4870 of 2016, is set aside. Writ petition is allowed. Tribunal is also at liberty to issue
notice to the Bank. Tribunal is directed to consider and pass a detailed speaking order and issue a
fresh recovery certificate, after considering what has been discussed above. No costs. Consequently,
the connected Miscellaneous Petition is closed.
(S.M.K.,J) (M.G.R.,J)
11th January 2017

mvs/skm/asr
Index: yes
website: yes
To
1. The Presiding Officer

Debts Recovery Tribunal II
Spencer Towers
Chennai.
2. The Manager
M/s. Tamilnad Mercantile Bank Ltd
T.T.K.Road Branch
Royapettah
Chennai 600 014.
S.MANIKUMAR, J.
a n d
M.GOVINDARAJ, J.
skm
Writ Petition No.25110 of 2016

11.01.2017
http://www.judis.nic.in

Mrs.B.Rajarajeshwari Vs The Presiding Officer On 11 January, 2017 PDF

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Mrs.B.

Rajarajeshwari vs The Presiding Officer on 11 January, 2017

Madras High Court

IN the High Court of Judicature at Madras

Writ Petition No.25110 of 2016

Mrs.B.Rajarajeshwari ... Petitioner

1. The Presiding Officer

2. M/s. Tamilnad Mercantile Bank Ltd

3. Mr.G.Radhakrishnan ... Respondents

Prayer: Petition filed

For petitioner ... Mr.SP.Srinivasan

For respondents ... Mr.S.Sethuraman for R.2

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Item of costs Amount (in Rs.)

1. Amount determined against the defendants 18,69,520.00

2. Interest @ 9% p.a (simple) on Rs.18,69.520.00 from 21/12/2012 to 1/12/2015 4,96,004.22

3. Application/Court fees 22,000.00

4. Advocate fees (as per cost memo Sr.No.10333) 40,500.00

5. Others (As per cost memo SR.No.10333) Nil TOTAL 24,28,024.22

5. In such circumstances, the petitioner was constrained to file I.A.No.4869 of 2016, in

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š6. Validity of certificate and amendment thereof:

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Wharton's Law Lexicon:

Stroud's Judicial Dictionary of Words and Phrases:

Cancel: To "cancel" a document, is to put an end to it.

Concise Oxford Dictionary:

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would prefer to adopt the latter construction.

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180. Further, it is a well-established principle of statutory interpretation that the legislature is

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(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;

(h) any other matter which may be prescribed.

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Section 152 CPC Section 26 of the RDBI Act

152. Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments,

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1. The Presiding Officer

Writ Petition No.25110 of 2016