RECOVERY OF DEBT WITHOUT INTERVENTION OF

COURTS

Banking Law
Submitted to: Mr. Saurabh Arora
Submitted By: Saurabh Kumar Gangwar (B)
Registration no.: 1901092
B.A. L.LB. (Hons.)
9th Semester

Dr. Bhim Rao Ambedkar National Law University, Sonepat

Introduction

India's banking industry has played a critical role in the country's attempt to achieve fast
economic growth but the road to this was not really easy and smooth. A bank performs various
functions, out of which providing credit to the client is one of the primary and major function of
the banks. However, credit is a fragile plant that thrives under favourable conditions but withers
quickly amid adversity and it carries the seed of its own demise. As a result, when
banks/financial institutions lend, they first ensure that the loan is returned when due and, second,
that it is utilised for authorised reasons.

However, loan recovery is one of the most challenging challenges that these institution address,
regardless of whether the loan is short-term, medium-term, or long-term, or to whom the loan is
given. The then existing legal framework relating to commercial transactions was not able to not
keep up with evolving business practises and banking sector reforms. This resulted in a slow
pace of recovery of defaulting loans which escalated the levels of non-performing assets of banks
and financial institutions and were becoming a big hurdle to rapid development.

Existing Legal framework for Recovery of Debts

Indian legal system provides various legal provisions for the recovery of debts, these include:

1. Suit under CPC; Summary suits can be filed by the lender under Order XXXVII of the
Code of Civil Procedure, 1908
2. Criminal complaint under Section 138 of NI Act,1881 (Negotiable Instruments Act) for
dishonour of any cheque issued by borrower to the bank in discharge of legally
enforceable liability.
3. Arbitration under the Arbitration & Conciliation Act, 1996 for the recovery of amount
due as specified in the Arbitration Agreement /clause in the loan instruments, in
circumstances where RDDBFI Act is inapplicable.
4. OA by Banks and FI's before the DRT for a loan above Rs. 20 lakhs, under RDDBFI
ACT, 1993.
5. Enforcement of Security Interest under SARFAESI ACT, 2002
Out of the following measures, we will discuss the recovery of debts under the DRT Act and
SARFAESI Act as it provides for the banks and Financial Institutions to proceed without the
intervention of courts.

RDDBFI Act, 1993 (“Recover of Debts due to Banks and Financial

Institutions”)

Prior to ratification of the RDDBFI Act, banks and FI’s faced significant difficulties in
recovering debts from borrowers because the courts were overburdened with a large number of
regular cases, preventing the courts from giving priority to bank and financial institution
recovery matters.

“The Government of India formed a committee headed by Mr T. Tiwari in 1981, and this
committee proposed a quasi-judicial setup exclusively for banks and financial institutions,
which, by using a summary procedure, can quickly dispose-off recovery cases filed by banks and
financial institutions against borrowers. In 1991, a committee chaired by Mr.Narasimham backed
the Mr T. Tiwari Committee's findings and proposed the formation of quasi-judicial debt
collection agencies to expedite debt recovery. As a result, the Government of India adopted the
RDDBFI Act. Through the enactment of RDDBFI Act, quasi-judicial bodies, i.e., the DRT (Debt
Recovery Tribunal) and DRAT (Debt Recovery Appellate Tribunal) were established, and a
system for debt collection was established.

The first DRT was established in Calcutta on 27th April 1994.” Presently there are 39 DRT’s and
5 DRAT in India.

Constitutionality of Act

The Act's constitutionality was contested in the case of “Union of India & Anr. Vs. Delhi High
Court Bar Association & Ors.”1 The Act's constitutionality was challenged on the grounds that
it was irrational, violated Article 14 of the Constitution, and exceeded the legislative competence
of Parliament.

The Supreme Court ruled that “while Articles 323A and 323B specifically enable the legislature
to enact laws for the establishment of tribunals, the power of the parliament to enact a law

1
Union of India v. Delhi High Court Bar Assn., (2002) 4 SCC 275
constituting a tribunal such as a banking tribunal is not taken away in relation to the matter
specified therein.” It was observed that, in exercising its legislative competence, the parliament
can offer a mechanism for recovering payments owed to banks and financial institutions,
therefore upholding the Act's legitimacy.

Pecuniary Jurisdiction

For any debts worth more than sum of Rs. 20 Lakhs, an application for the recovery of debt can
be made to the tribunal. Banks and FI’s can use the standard remedy and approach Civil Courts,
for smaller sums.2

Jurisdiction of Tribunal

Section 17 of the RDDBFI Act gives the tribunal jurisdiction, power, and authority to entertain
and decide applications from secured creditors for recovery of debts owed to such secured
creditors. The DRT and DRAT's jurisdictional powers and authority are structured in such a way
that civil courts do not directly intervene on the principal issue on which DRTs must rule.
Furthermore, section 17A gives DRAT overall superintendence and control, as well as appellate
jurisdiction over DRT. 3

Section 18 of the Act prohibits all other Courts from hearing debt related matters, with the
exception of the Supreme Court and High Court, whose power is derived from Articles 226 and
227 of the Indian Constitution. The basic line is that only the High Court and the Supreme Court
may grant redress against a DRAT verdict.

While the DRT procedure was intended to relieve the burden on lower courts, the lower courts
do play a part in the DRT process since the judicial powers placed on the DRT and DRAT under
the RDDBFI Act are extremely limited. In the case of “Standard Chartered Bank vs.
Dharmindar Bhoi and others”4, the Supreme Court emphasised in its decision that the DRT
and DRAT can only adjudicate on topics within their scope as established in section 17 of this
Act. For example, DRTs and DRATs do not have authority over property succession rights,

2
Recovery of dues by banks, available at: https://www.legalindia.com/recovery-of-dues-by-banks/ (last visited on
Nov 29, 2023).
3
Ibid.
4
Standard Chartered Bank v. Dharminder Bhohi, (2013) 15 SCC 341
monitoring and enforcing KYC rules, or issuing receipts. Thus, disputes on such topics
necessitate decisions from civil courts, which have greater authority than DRTs and DRATs.

Application to Tribunal

Under section 19, “the bank or financial institution for the recovery of any debt can file an
application to the tribunal within the local limits of whose jurisdiction:

a) The branch or any other office of the bank or financial institution is maintaining an account in
which debt claimed is outstanding, for the time being; or

b) The defendant, or each of the defendants where there are more than one, at the time of
making the application, actually and voluntarily resides, or carries on business, or personally
works for gain; or

c) Any of the defendants, where there are more than one, at the time of making the application,
actually and voluntarily resides, or carries on business, or personally works for gain; or

d) The cause of action, wholly or in part, arises”

Right to Appeal

Under Section 20, an appeal to the order of tribunal may lie to the appellate tribunal i.e, the
DRAT by the aggrieved person within period of 30 days from date on which the copy of order
made by the DRT is received by borrower. Such appeal shall only be entertained on the
submission of 50% of amount of the debt by the borrower which can be reduced to 25% by the
tribunal but cannot be waived.

SARFAESI Act, 2002(“Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest”)

Even after the RDDBFI Act was passed, issues such as a lack of liquidity, an asset-liability
mismatch, and long-term asset blockage continued. Banks were unable to recover their dues to
the level predicted even after the establishment of DRTs.

“To overcome those gaps, the federal government formed different committees, such as the
Narasimham Committee I (1991) and the Narasimham Committee II (1998) and Andhyarujina
Committee constituted under the chairmanship of Sri T.R. Andhyarujina, to investigate banking
sector reforms. These committees evaluated the need for changes to the legal framework and the
creation of new securitization legislation that permits banks and financial institutions to take
control of assets and sell them without the need for judicial intervention. In the year finally, the
SARFAESI ACT was approved in 2002.”

Object of the Act

“The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002”, was enacted to regulate securitization and reconstruction of financial assets, as well
as the enforcement of security interests created in favour of secured creditors.5

The Act specifies three possible techniques for recovering NPAs:

a) Securitization

(b) Asset Reconstruction; and

(c) Enforcing security without the intervention of the court.

Constitutionality of Act

In the case of “Mardia Chemicals Ltd. Vs Union of India”, 6 constitutionality of SARFAESI

was challenged, namely “Sections 13, 15, 17, and 34”, on the grounds that they are excessive and
arbitrary. The Supreme Court in its judgement upheld the constitutionality of SARFAESI.

Pecuniary Jurisdiction

“The provisions of SARFEASI Act applies to NPA loan accounts of value exceeding Rs. 1 Lakh
and the NPA loan account is more than a twentieth of principle and interest. Such NPAs should
be backed by securities charged to the banks by way of hypothecation, mortgage or assignment
and the secured assets.”7

5
SARFAESI ACT, 2002- Applicability, Objectives, Process, Documentation, available at:
https://cleartax.in/s/sarfaesi-act-2002 (last visited on Nov 26, 2023).
6
Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311
7
Ibid.
Recovery Process under SARFAESI

On the account of the borrowers failure of due payment of loan, bank declares the loan account
as NPA and send notice to the borrower under Section 13(2). On receiving such NPA notice
from bank, the borrower has 60 days to discharge his liabilities. In case borrower fails to do so,
the secured creditor proceeds under Section 13(4) of the Act for the enforcement of Security
Interest.

“The secured creditor may take one or more recourse mentioned in under section 13(4) namely,

i. To take possession of the secured assets of the borrower including the right to transfer
by way of lease, assignment or sale for releasing the secured asset. When it comes to
taking possession of the property, there are two things like taking symbolic possession
and taking actual possession
ii. To take over the management of the business of the borrower including the right to
transfer by way of lease, assignment or sale for releasing the secured asset.
iii. Appoint the manager, to manage the secured asset whose possession has been taken
iv. Requiring money from any person who has acquired any of the secured assets from the
borrower and from whom any money is due to the borrower, to pay to the secured
creditor, by notice in writing”

The Secured creditor under Section 14 may request by writing to the jurisdictional Chief
Metropolitan Magistrate or District Magistrate to take possession thereof. Such Magistrate may
then take control of the asset and deliver it to the secured creditor. And may use or cause the use
of such force as he deems necessary.

Remedy to Aggrieved Borrower

“Any individual who is aggrieved by any measure taken under section 13(4) by the secured
creditor may file an application with the tribunal within 45 days of the date such measures were
adopted under Section 17 of the Act. If the tribunal concludes, after reviewing, that the measures
under section 13(4) are in violation of the Act, it may declare the measures invalid and return the
borrower's possession of the secured asset.”
Right to Appeal

Any Individual aggrieved by the order of DRT may approach the DRAT under Section 18 of the
act provided that no appeal shall lie unless the borrower has deposited 50% of the amount of debt
owed by the borrower.

RDDBFI and SARFAESI Complimentary

In the case of “Transcore vs. UOI”8, it was held that RDDBFI Act, 2016 and SARFAESI Act
are complementary to each other. The withdrawal of an action pending before the tribunal under
RDDBFI, 1993 is not a prerequisite for resorting to SARFAESI. The SARFAESI Act of 2002 is
an extra remedy that is not inconsistent with the DRT Act of 1993, and hence the theory of
election does not apply.

8
(2008) SCC 125(73) SCL (11)135
Conclusion

The rising NPAs and debt issues are hurting the banking industry and the economy as a whole
and the enactment of new laws have provided a relief to both judiciary and secured creditors for
the recovery of the same but it can be seen that no law dealing with the recovery of loans is
complete in itself; for example, money recovery suit filed under CPC in the Civil Court takes
long to be decided because of the already plethora of cases within courts, and laws dealing
specifically with recovery suits, such as the RDDBFI Act 1993, are only competent to deal with
unsecured loans; for secured loans, the remedy under it is inadequate. Similarly, proceedings
under the SARFAESI Act, 2002 deals specifically with the secured loan, and there are numerous
complications under the Act for obtaining possession without the intervention of the court. Also
secured creditors are compelled to file application before the Chief Metropolitan Magistrate or
District Magistrate for the possession of assets which is a time-consuming process. Thus, all of
the aforementioned remedies are incomplete in themselves and reliant on each-other at various
levels.