Hemant Gupta, C.J.:— The petitioners are borrowers who have availed financial assistance from the respondent Banks to the tune of Rs. 14,84,98,67,873.34 (Rupees Fourteen Hundred Eighty Four Crores Ninety Eight Lakhs Sixty Seven Thousand Eight Hundred Seventy Three only). The Banks - secured creditors invoked the jurisdiction of Debts Recovery Tribunal constituted under section 19 of The Recovery of Debts and Bankruptcy Act, 1993 (for short the ‘Act’) as amended by Central Act No. 31 of 2016 and Central Act No. 44 of 2016.

2. An application under section 19 of the Act was presented before Debts Recovery Tribunal, Jabalpur (for short the ‘Tribunal’) on 6-4-2017. The learned Tribunal passed an order on 10-4-2017 inter alia to show cause within 30 days of service of summons as to why relief prayed for should not be granted. The defendants were directed to file written statement with a copy to be furnished to the applicants and to appear before the Registrar on 7-6-2017 failing which the application was ordered to be heard and decided in the absence of the respondents. On 7-6-2017, the Registrar noticed that the registered notice have been sent on 26-5-2017 and that 30 days period has not been completed. Thereafter, the application was ordered to be called for hearing on 5-7-2017, when the affidavit of service was filed. On 6-7-2017, the period of 30 days for filing of response was over and, therefore, case was ordered to be placed before the Presiding Officer. It is thereafter the Presiding Officer passed an order on 22-9-2017. The order reads as under:—

“Counsel for the Defendants seeks some more time for filing of written statement. Scrutiny of record reveals that despite availing sufficient opportunities, the Defendants have not filed any written statement till date. However, in the interest of justice, one more opportunity is granted for filing of written statement subject to deposit of Rs. 50 Crores by the Defendants in the loan account and deposit of Rs. 02 Crores in PM National Relief Fund.

Let the matter be put up on 18-10-2017 for filing of written statement.”

3. Aggrieved against the order passed, the petitioners earlier filed a petition before this Court being M.P. No. 1124/2017, Crest Steel and Power Private Limited v. Punjab National Bank, which was decided on 24-11-2017 with a liberty to the petitioners to avail the remedy of appeal in which the order, now impugned in the petition on 19-3-2018, was passed.

4. Learned Debt Recovery Appellate Tribunal (for short “the Appellate Tribunal”) found that the Tribunal may close or grant opportunity of filing written statement by imposing appropriate costs, but not harsh conditions. Consequently, the Appellate Tribunal considering the amendments carried out in the Act with effect from 4-11-2016, set aside the order dated 22-9-2017 of imposing cost of Rs. 50 Crores in the loan account and Rs. 2 Crores in the PM National Relief Fund but did not grant any further time for filing of written statement. The finding of the Appellate Tribunal is that after the expiry of 45 days, the Tribunal was not empowered to provide another opportunity to the petitioners to file written statement.

5. The argument of learned counsel for the petitioner is that in terms of the Supreme Court judgment reported as Kailash v. Nanhku, 2005 MPLJ Online (S.C.) 10 : (2005) 4 SCC 480, the condition of filing written statement in a time frame is not mandatory. Therefore, not permitting the petitioner to file written statement beyond 45 days is failure of justice, as the petitioner would not be able to contest the claim of the Bank in a fair and proper manner.

6. Learned counsel for the petitioner also argued that in terms of section 19(25), the Tribunal has jurisdiction to pass such order so as to prevent abuse of process or to secure the ends of justice. Therefore, even if the time limit to file written statement is prescribed, under sub-section (5) of section 19 of the Act, but Tribunal has inherent jurisdiction to extend the period of filing of written statement in terms of section 19(25) of the Act.

7. On the other hand, learned counsel for the Bank referred to Three Judge Bench judgment of the Supreme Court reported as New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited, (2015) 16 SCC 20 (for short ‘Hilli F), wherein the judgment in Kailash's case (supra) was found to be not correct view as the earlier Three Judges Bench judgment in the case reported as Dr. J.J. Merchant v. Shrinath Chaturvedi, (2002) 6 SCC 635 was not noticed by the Bench.

8. The Act was enacted for establishment of Tribunal and Appellate Tribunals for expeditious adjudication and recovery of Debts due to Banks and Financial Institutions in the year 1993, consequent to the report of the Committee on the Financial System headed by Shri M. Narasimham. The three Judge Bench of the Hon'ble Supreme Court in a Judgment reported as Central Bank of India v. State of Kerala, (2009) 4 SCC 94, found that the primary object of the Act is to facilitate creation of special machinery for speedy recovery of the dues of Banks and Financial Institutions. The Act not only provides for establishment of the Tribunals and the Appellate Tribunals with the jurisdiction, powers and authority to make summary adjudication of applications made by banks or financial institutions and specifies the modes of recovery of the amount determined by the Tribunal or the Appellate Tribunal. The Tribunals and the Appellate Tribunals have also been freed from the shackles of procedure contained in the Code of Civil Procedure. Thus the Act has not only brought into existence special procedural mechanism for speedy recovery of the dues of Banks and Financial Institutions, but also made provision for ensuring that defaulting borrowers are not able to invoke the jurisdiction of civil Courts for frustrating the proceedings initiated by the Banks and Financial Institutions. The relevant extract from the Judgment reads as under:—

“92. An analysis of the abovenoted provisions makes it clear that the primary object of the DRT Act was to facilitate creation of special machinery for speedy recovery of the dues of banks and financial institutions. This is the reason why the DRT Act not only provides for establishment of the Tribunals and the Appellate Tribunals with the jurisdiction, powers and authority to make summary adjudication of applications made by banks or financial institutions and specifies the modes of recovery of the amount determined by the Tribunal or the Appellate Tribunal but also bars the jurisdiction of all Courts except the Supreme Court and the High Courts in relation to the matters specified in section 17. The Tribunals and the Appellate Tribunals have also been freed from the shackles of procedure contained in the Code of Civil Procedure. To put it differently, the DRT Act has not only brought into existence special procedural mechanism for speedy recovery of the dues of banks and financial institutions, but also made provision for ensuring that defaulting borrowers are not able to invoke the jurisdiction of civil Courts for frustrating the proceedings initiated by the banks and financial institutions.

93. The enactment of the Securitisation Act can be treated as one of the most radical legislative measures taken by the Government for ensuring that dues of secured creditors including banks, financial institutions are recovered from the defaulting borrowers without any obstruction. For the first time, the secured creditors have been empowered to take measures for recovery of their dues without the intervention of the Courts or tribunals.”

9. In another Judgment reported as Vishal N. Kalsaria v. Bank of India, 2016 MPLJ Online (S.C.) 7 : (2016) 3 SCC 762, the Court held that providing a smooth and efficient recovery procedure under the Act is to enable the banks to recover the non-performing assets as a laudable object, which needs to be ensured for the development of the economy of the country.

10. In an another Judgment reported as Pegasus Assets Reconstruction (P) Ltd. v. Haryana Concast Ltd., 2017 (1) M.P.L.J. (S.C.) 25 : (2016) 4 SCC 47, the Supreme Court again found that the avowed object of the Act is to provide for the establishment of tribunals for expeditious adjudication and recovery of debts due to Banks and Financial Institutions and for matters connected therewith or incidental thereto. The Act creates a special machinery for speedy recovery of dues of Banks and Financial Institutions. The Court observed as under:—

“21. The RDB Act is of 1993 i.e. later to the Companies Act. Its avowed object is to provide for the establishment of tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions and for matters connected therewith or incidental thereto. This Act creates a special machinery for speedy recovery of dues of banks and financial institutions which, by an amendment of 2004 now includes a registered securitisation company or reconstruction company envisaged under the SARFAESI Act. Section 18 bars the jurisdiction of ordinary Courts or authority in respect of matters falling within the jurisdiction of the Tribunal as specified in section 17. An Appellate Tribunal is provided under section 20. The power of the Tribunal extends to determining the debt due as well as its realisation. Section 34 confers overriding effect upon this Act over any other law in force.”

11. The experience of more than 20 years to speed up recovery of public dues, the Act was amended while enacting The Insolvency and Bankruptcy Code, 2016 published on 28th of May, 2016. The Act was also amended by another Central Act No. 44 of 2016 “The Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016.” The later Act has inter alia amended section 19 of the Act. The amended Act (section 31- B) gives priority to the dues of the secured creditors over all other debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or Local Authority.

12. With this back ground, the relevant provisions of Act need to be extracted before the arguments raised by learned counsel for the parties are dealt with. The provisions read as under:—

“19. Application to the Tribunal.— (1) Where a bank or a financial institution has to recover any debt from any person, it may make 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

(aa) 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

(b) 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

(c) the cause of action, wholly or in part, arises:

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(4) On receipt of the application under sub-section (1) or sub-section (2), the Tribunal shall issue summons with following directions to the defendant—

(i) to show cause within thirty days of the service of the service of summons as to why the relief prayed for should not be granted;

(ii) direct the defendant to disclose the particulars of properties or assets other than properties and assets specified by the applicant under clauses (a) and (b) of sub-section (3A); and

(iii) to restrain the defendant from dealing with or disposing of such assets and properties disclosed under clause (c) of sub-section (3A) pending the hearing and disposal of the application for attachment of properties.

(4-A) Notwithstanding anything contained in section 65-A of the Transfer of Property Act, 1882 (4 of 1882), the defendant, on service of summons, shall not transfer by way of sale, lease or otherwise except in the ordinary course of his business any of the assets over which security interest is created and other properties and assets specified or disclosed under sub-section (3A), without the prior approval of the Tribunal:

Provided that the Tribunal shall not grant such approval without giving notice to the applicant bank or financial institution to show cause as to why approval prayed for should not be granted:

Provided further that defendant shall be liable to account for the sale proceeds realised by sale of secured assets in the ordinary course of business and deposit such sale proceeds in the account maintained with the bank or financial institution holding security interest over such assets.

(5) (i) The defendant shall within a period of thirty days from the date of service of summons, present a written statement of his defence including claim for set-off under sub-section (6) or a counter-claim under sub-section (8), if any, and such written statement shall be accompanied with original documents or true copies thereof with the leave of the Tribunal, relied on by the defendant in his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, the Presiding Officer may, in exceptional cases and in special circumstances to be recorded in writing, extend the said period by such further period not exceeding fifteen days to file the written statement of his defence;

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(24) The application made to the Tribunal under sub-section (1) or sub-section (2) shall be dealt with by it as expeditiously as possible and every effort shall be made by it to complete the proceedings in two hearings, and to dispose of the application finally within one hundred and eighty days from the date of receipt of the application.

(25) 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.”

13. A reading of the Act would show that it is a complete Code providing for a Forum for adjudication of claim of the secured creditors and also to the procedure to be followed by the Adjudicating Authorities under the Act. It also mandates to ensure that there is expeditious disposal of the claim of the secured creditors, as huge public money is locked up on account of defaults of borrowers. Sub-section (4) of section 19 of the Act provides for a show cause within thirty days of service of summons as to why relief prayed for should not be granted. In terms of sub-section (5), the defendant has to file written statement of his defence within a period of thirty days, including claim for set-off under sub-section (6) or a counter-claim under sub-section (8). The first proviso contemplates that the Presiding Officer in exceptional cases and in special circumstances can extend the period for filing of written statement, but not exceeding 15 days. In other words, the time prescribed for filing of written statement is normally thirty days, but can be extended in certain circumstances by another fifteen days. The argument of petitioners is that such provisions are directory relying upon Kailash ‘s case.

14. The Supreme Court in Kailash's case was seized of a matter of an election petition under section 80 of the Representation of People Act, 1951. Section 87 of the said Act contemplates that every petition shall be tried by the High Court as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (for short the ‘CPC’). In view of the said statutory provision, the Court held that the provisions of Order VIII Rule 1 711f the Civil Procedure Code, is not mandatory but directory. Relevant extract reads as under:—

“27. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the Civil Procedure Code or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State Of Bihar ., (1975) 1 SCC 774, are pertinent:—

“The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable……… Justice is the goal of jurisprudence— processual, as much as substantive.”

30. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.”

15. On the other hand, somewhat similar provision as are in the Act are also contained in section 13(2)(a) of the Consumer Protection Act, 1986 for filing of reply to the complaint. The said provision has been examined by the Supreme Court in the case reported as Dr. J.J. Merchant (supra). The Court held as under:—

“15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within stipulated time, the Court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version by the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to.

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17. In view of the aforesaid provisions, the Commission can certainly refer to Order 7, Rule 14 which provides that where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in the Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof to be filed with the plaint. It appears that this mandatory requirement is not followed and thereafter, there is complaint of delay in disposal. Similarly, in case of written statement under Order 8, Rule 1-A, the defendant is required to produce the documents relied upon by him when written submission is presented. The Commission can always insist on production of all documents relied upon by the parties along with the complaint and the defence version.

18. Further, in the present case, the complainant's case is based upon the negligence of the Doctors in giving treatment to the deceased. Whether there was negligence or not on the part of the concerned Doctors would depend upon facts alleged and in such a case there is no question of complicated question of law involved. However, it has been pointed out by the learned senior counsel that recording of evidence of experts including doctors relied upon by the complainant would consume much time and therefore also the complainant should approach the Civil Court. As against this, learned counsel for the complainant submitted that under the Act, the Commission is required to follow summary procedure. It may or may not examine the doctors or experts. It may only rely upon the statements given by such doctors or experts.

20. In any case, for avoiding the delay the District Forum or Commissions can evolve a procedure of levying heavy cost where adjournment is sought by a party on one or the other ground. This would have its own impact on disposing the complaints, appeals or revisions within the stipulated or reasonable time. For avoiding delay in disposal of cases, the procedure and the time limit prescribed under the Act and the Rules is required to be strictly adhered and followed. If there is proper mind set to do so on the part of all concerned, delay in disposal to a large extent could be avoided.”

16. The aforesaid judgment was followed Hilli Multipurpose Cold Storage Private Limited, [‘Hilli I’]. It was held that in no case period beyond 45 days can be granted to the opposite party for filing its version of the case. The relevant extract reads as under:—

“12. The whole issue centres round the period within which the opponent has to give his version to the District Forum in pursuance of a complaint, which is admitted under section 12 of the Act. Upon receipt of a complaint by the District Forum, if the complaint is admitted under section 12 of the Act, a copy of the complaint is to be served upon the opposite party and as per provisions of section 13 of the Act, the opposite party has to give his version of the case within a period of 30 days from the date of receipt of the copy of the complaint. There is a further provision in section 13(2)(a) that the District Forum may extend the period, not exceeding 15 days, to the opposite party for giving his version. The relevant section of the Act reads as under:

“13. Procedure on admission of complaint.— (1)

(2) The District Forum shall, if the complaint admitted by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,—

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(b) ***”

Thus, upon plain reading of the aforestated section, one can find that the opposite party is given 30 days' time for giving his version and the said period for filing or giving the version can be extended by the District Forum, but the extension should not exceed 15 days. Thus, an upper cap of 45 days has been imposed by the Act for filing version of the opposite party.

13. The question arose in J.J. Merchant, (2002) 6 SCC 635, whether the Forum can grant time beyond 45 days to the opposite party for filing its version. After considering the aforestated section in the light of the object with which the Act has been enacted, a three-Judge Bench of this Court came to the conclusion that in no case period beyond 45 days can be granted to the opposite party for filing its version of the case.

14. Without discussing the aforestated three-Judge Bench judgment in detail, we now turn to another judgment which has been referred to by the referring Bench. The other judgment which has been referred to is Kailash, 2005 MPLJ Online (S.C.) 10 : (2005) 4 SCC 480, which pertains to Election law. The issue involved in the said case was whether time-limit of 90 days, as prescribed by the proviso to Rule 1 of Order 8 of the Civil Procedure Code, is mandatory or directory in nature. The said issue had arisen in an election matter where the written statement was not filed by the concerned candidate within the period prescribed under the relevant Election law and the issue was whether in the election trial, delay caused in filing the written statement could have been condoned. After considering the provisions of Order 8, Rule 1 of the Code of Civil Procedure, 1908 and several other judgments pertaining to grant of time or additional time for filing written statement or reply, in the interest of justice, this Court came to the conclusion that the provisions of Order 8, Rule 1, Civil Procedure Code are not mandatory but directory in nature and therefore, in the interest of justice, further time for filing reply can be granted, if the circumstances are such that require grant of further time for filing the reply.

15. The judgment delivered in Kailash, 2005 MPLJ Online (S.C.) 10 : (2005) 4 SCC 480, is later in point of time and while considering the said judgment, judgment delivered in J.J. Merchant, (2002) 6 SCC 635, had also been considered by this Court.

16. In the aforestated circumstances, we have now to consider whether in a case under the provisions of the Act, where a complaint has been filed and the opposite party has not filed its version to the case within 30 days or within extended period of 45 days, which at the most could have been granted by the District Forum, the version given by the opposite party can be accepted.

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29. In view of the aforestated legal position, we are of the view that the law laid down by a three-Judge Bench of this Court in the case of Dr. J.J. Merchant, (2002) 6 SCC 635, should prevail. The Reference is answered accordingly.”

17. We may point out that in terms of HUH I (supra), the Civil Appeal was placed before a Bench after reference was answered. The question arose before the Bench as to when the period of thirty days and additional period of fifteen days will commence. It was found that the Consumer Protection Act, 1986 does not specify as to from which date the period of thirty days is to commence, therefore, the matter has been referred for opinion of the Larger Bench in the case reported as Civil Appeal No(s). 10941-10942 of 2013, New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited, decided on 18th of January, 2017 (for short ‘Hilli II’). It was held as under:—

“19. By necessary implication, it prima facie appears to us the ADJUDICATORY BODY need not necessarily stipulate that the period of 30 days limitation should commence from the date of receipt of the notice. If the period of 30 days is to be mandatorily reckoned from the date of the receipt of the notice by the opposite party, the Parliament would have made it explicit.

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28. In the above-mentioned background, we are of the view that a Constitution bench is not really required to examine any question as was stated in the order of reference dated 11-2-2016, particularly, in view of the factual error which we have already indicated earlier which crept in the reference order. However, the question : what is the commencing point of the limitation of 30 days stipulated in section 13 of the Act is required to be decided authoritatively. The declaration made in J.J. Merchant's case that the said period is to be reckoned from the date of the receipt of the notice by the opposite party or a complaint under the Act requires in our humble opinion, a more critical analysis.”

18. Therefore, the question which is pending for consideration is as to when the period of thirty days is to commence for filing of written statement in a complaint filed under the Consumer Protection Act, 1986, but in respect of the Act in question, sub-section (4) of section 19 mandates that the defendant is required show cause within thirty days from the service of summons as to why relief should not be granted whereas sub-section (5) of section 19 of the Act contemplates that defendant shall file written statement within thirty days. The proviso contemplates additional fifteen days for filing written statement but in exceptional cases and in special circumstances. Therefore, the Act has specified the period from which the time of thirty days will commence. Since the Act is a complete Code in respect of substantive rights and the procedure, therefore, the principle laid down in Kailash's case (supra) would not be applicable wherein Civil Procedure Code is made applicable to the trial of an election petition under the Representation of People Act. The Court held as under:—

“33. As stated earlier, Order 8, Rule 1 is a provision contained in the Civil Procedure Code and hence belongs to the domain of procedural law. Another feature noticeable in the language of Order 8, Rule 1 is that although it appoints a time within which the written statement has to be presented and also restricts the power of the Court by employing language couched in a negative way that the extension of time appointed for filing the written statement was not to be later than 90 days from the date of service of summons yet it does not in itself provide for penal consequences to follow if the time schedule, as laid down, is not observed. From these two features certain consequences follow.”

19. Therefore, not only there was earlier Larger Bench judgment in Dr. J.J. Merchant's case (supra), but later Three Judges Bench while considering somewhat similar provisions contained in the Consumer Protection Act, 1986, held that the time fixed for filing written statement cannot be extended. Therefore, in view of the order passed by the Supreme Court in Hilli I (supra), the period of thirty days is mandatory keeping in view the object of the Act for expeditious disposal of the claim of the secured creditors. The intention for expeditious disposal is implicit, when sub-section (24) of section 19 mandates the Tribunal to conclude the proceedings within two hearings.

20. Therefore, keeping in view the object and purpose of the statute, we find that written statement was required to be filed within thirty days, which could in exceptional cases or in special circumstances be extended by the Tribunal by another fifteen days. In the present case, the petitioners' were informed by show-cause notice that they have to file their written statement within thirty days. The claim of the Bank is for recovery of over Rs. 1400 Crores. Therefore, the provisions of the Act have to be assigned the meaning which is keeping in view the objective of the Act rather than to frustrate the object.

21. Therefore, we find that the petitioners have lost their right to file written statement, having failed to do so within thirty days and also in the additional fifteen days.

22. Accordingly, the petition stands dismissed.

Petition dismissed.