Compromise & Settlement Before Debts Recovery Tribunal
Compromise & Settlement Before Debts Recovery Tribunal
Compromise & Settlement Before Debts Recovery Tribunal
G.S. Dubey*
A lot of loan cases having outstanding of ten lacs and above are filed by Banks before
Debts Recovery Tribunal. Naturally a good percentage of such cases are settled through
compromise/settlement with the borrower. As a practicing Chartered Accountant
we must know on what lines negotiations can be made with Banks.
For the purpose Debts Recovery Tribunal is used for providing an ultimate platform
to such negotiated settlement. These negotiated settlements either may be between
the parties to lis or with intervention or co-operation of the Presiding Officer of the
Tribunal.
Compromise is ordinarily a negotiated settlement. It is a settlement of difference by
mutual concessions. It is the mutual acts of the parties to settle the dispute between
them. It is the choice of the creditor/Financial Institution to accept a less amount for
recovery in full and final satisfaction of its claim to which neither Debt Recovery
Tribunal nor Recovery Officer can have objection. The commercial Prudence of lender
cannot be questioned by Debt Recovery Tribunal. When substantive dispute between
the parties has been settled, no technical plea can stand in the way of recording the
settlement. Section 63 of Indian Contract Act (Illustration B) –[ “A owes B 5000 rupees.
A pays to B, and B accepts in satisfaction of the whole debt, 2000 rupees paid at the
time and place at which the 5000 rupees were payable. The whole debt is discharged.”]
makes it clear that the creditor has an unfettered right to dispense with or remit
wholly or in part the performance of any promise or payment of any debt due to him.
Accordingly, refusal to record a compromise/satisfaction of claim by Tribunal on the
ground of considerable gap between the claim amount and agreed amount and
availability of mortgaged property, cannot be suppored.1
Further, grant of certain concessions in repayment of loan or in repayment time is
recorded on the principal as embodied in order XXIII of Code of Civil Procedure, 1908.
“ORDER XXIII : 1. Withdrawal of suit or abandonment of part of claim- (1) At any
time after the institution of a suit, the Plaintiff may as against all or any of the dependants
abandon his suit or abandon a part of his claim:
Provided that where the Plaintiff is a minor or other person to whom the provisions
contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the
claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an
affidavit of the next friend and also, if the minor or such other person is represented by a
pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his
opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied—
(a) that a suit must fail by a reason of some formal defect, or
* Former Manager, Law Central Bank of India. The author can be contacted at
[email protected]
(b) that there are sufficient grounds for allowing the Plaintiff to institute a fresh suit
for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit,
grant the Plaintiff permission to withdraw from such suit or such part of claim with
liberty to institute a fresh suit in respect of the subject matter of such suit or such part
of the claim.
(4) Where the Plaintiff, —
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in
sub-rule (3), he shall be liable for such costs as the Court may award and shall be
precluded from instituting any fresh suit in respect of such subject matter or such part
of the claim.
(5) Nothing in this rule shall be deemed to authorize the Court to permit one of several
plaintiffs to abandon a suit or part of a claim under sub-rule1, or to withdraw, under sub-
rule 3, any suit or part of a claim, without the consent of the other Plaintiffs.]
1A. When transposition of Defendants as Plaintiffs may be permitted: Where a suit
is withdrawn or abandoned by a Plaintiff under Rule 1, and a Defendant applies to be
transposed as a Plaintiff under Rule 10 of Order I, the Court shall, in considering such
application, have due regard to the question whether the Applicant has a substantial
question to be decided as against any of the other Defendants.]
2. Limitation law not affected by first suit –In any fresh suit instituted on permission
granted under the last preceding rule, the Plaintiff shall be bound by the law of limitation
in the same manner as if the first suit had not been instituted.
3. Compromise of suit – Where it is proved to the satisfaction of the Court that a suit has
been adjusted wholly or in part by any lawful agreement or compromise [in writing and
signed by the parties], or where the Defendant satisfies the Plaintiff in respect of the whole
or any part of the subject matter of the suit, the Court shall order such agreement, compromise
or satisfaction to be Recorded, and shall pass a decree in accordance therewith [so far as it
relates to the parties to the suit, whether or not the subject matter of the agreement,
compromise or satisfaction is the same as the subject matter of the suit]:
Provided that where it is alleged by one party and denied by the other than an adjustment
or satisfaction has been arrived at, the Court shall decide the question, but no adjournment
shall be granted for the purpose of deciding the question, unless the Court, for reasons
to be recorded, thinks fit to grant such adjournment.]
[Explanation: An agreement or compromise which is void or voidable under the Indian
Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of
this rule.]
3 A Bar of suit –No suit shall lie to set aside a decree on the ground that the compromise
on which the decree is based was not lawful.
3B. No agreement or compromise to be entered in a representative suit without leave of
Court: (1) No agreement or compromise in a representative suit shall be entered into
without the leave of the Court expressly recorded in the proceedings; and any such agreement
or compromise entered into without the leave of the Court so recorded shall be void.
(2) Before granting such leave, the Court shall give notice in such manner as it may think
fit to such persons as may appear to it to be interested in the suit.
parties to abide by compromise. And therefore proper course would be first to dispose
application for setting-aside exparte order and then to record compromise settlement.4
Similarly, where Bank applied for striking out the names of guarantors from the
claim application on the basis of an out of Court settlement, the objection of Official
Liquidator of Borrower Company was turned out that Bank cannot proceed against
Official Liquidator and it was held that creditor has power to release one or more
guarantors in accordance with Indian Contract Act.5 Thus the law that can be inferred
is that even a guarantor can be released by Bank without releasing other loan parties.
A compromise can be for the adjustment of claim of Bank in whole or in part by any
lawful agreement. Where compromising borrower has satisfied Bank in respect of
any part of subject matter of claim, the Tribunal may record compromise to that extent
and may issue certificate in accordance with the term of compromise so far as it
relates to the parties in part or whole. No appeal lies to Appellate Tribunal where
order is passed with the consent of parties.
Where an assignment deed was executed by Bank but later on Bank filed a civil suit
for declaring the assignment deed void on ground of fraud undue influence etc. but
the other party Defendant moved Debt Recovery Tribunal for recording a compromise
on the basis of assignment deed it was held that in absence of findings of Civil Court
neither compromise can be recorded nor Original Application can be proceeded
with. Accordingly, the Original Application was directed to be closed.6
Where a Memorandum of Understanding was signed between the Bank and
Defendants but compromise petition on the basis of such Memorandum was not
presented in Court, it was held7 that Memorandum of Settlement does not amount to
novation of contract as envisaged under Section 62 of Indian Contract Act.
Memorandum of Settlement is only unconcluded settlement. Similarly when certificate
holder Bank presented a compromise unsigned by borrower, the same was rejected
by the Tribunal.8
In result, Recovery certificate cannot be issued against a non-signatory Defendant on
the basis of compromise entered between Bank and principal borrower. Similarly,
where borrower make payment of compromised amount but refused to adhere to
condition of withdrawal of all pending cases, the compromise cannot be recorded.9
Though Tribunal cannot force, interfere or put pressure upon the parties to enter with
a settlement of compromise the case still in a case Debt Recovery Tribunal finalized
the payable amount on the basis of internal correspondence of Bank on the application
of borrower for making compromise/One Time Settlement.10
Scheduled Commercial Banks have been advised by Reserve Bank of India to
invariably ensure that once a case is filed Govt./D.R.T. any settlement arrived at with
the borrower is subject to obtaining a consent decree from D.R.T. therefore Bank
generally obtains a consent decree with default clause. It means a repayment schedule
is provided to borrower for paying the installments as agreed under the compromise
and in case, the borrower fails to adhere to the time schedule, the whole amount as
claimed in recovery application on behalf of Bank is decreed. In effect such ‘consent
decree’ with ‘default clause’ provides for penalty because the claim amount becomes
payable in toto. Consent terms are independent contract by itself. Where the time for
making initial payment of Rs. two lacs by borrower was stipulated in compromise,
immediately after the execution of the amicable settlement but no time schedule was
fixed amongst the parties. In an appeal Debt Recovery Appellate Tribunal held11 that
period was necessarily stipulated by implication for payment of Rs. two lacs within
a reasonable time from the date of recording amicable settlement of dispute amongst
the parties. Although the compromise did not stipulate a particular time frame within
which payment would be made out yet it did not imply that borrower would never be
required to make payment at all in terms thereof. In such situation Debt Recovery
Tribunal is competent to put the borrower on terms for making payment within a
particular time frame. Similarly where parties agreed to settle for a certain sum but
other terms of the settlement regarding mode, manner and extent of installment and
time schedule, etc., Debt Recovery Tribunal will be well within powers to decree for
settled amount with installments and interest, as thought fit in accordance with
Order XX Rule 11 of the Code of Civil Procedure.12
Where One Time Settlement sanction letter issued by Financial Institution contained
a clause—
“In case Society does not honour the settlement within the agreed time frame, it
shall pay interest @ 15 % p.a. for delayed payment and IFCI shall have the right to
revoke the settlement and revert to provisions of the Loan Agreement”
Question arose whether Financial Institution is entitled to revoke the One Time
Settlement or is entitled only for interest. In view of the fact that even after breach
Financial Institution claimed only in between interest and also accepted part payment;
it was held that Financial Institution cannot revoke One Time Settlement and will be
entitled only for interest.13
The time for depositing the amount stipulated by parties becomes the time allowed by
Court and thus gives jurisdiction to extend time to Tribunal in appropriate cases in
order to prevent manifest in justice.14
Where a settlement is entered but there is failure of borrower in adhering to time
schedule as prescribed in the compromise and the Bank does not intimate to the
borrower that because of non-payment of entire balance within time-frame, the
settlement stands cancelled, it was held 15 that impliedly the time-frame for payment
was not made the essence of contract. Instesd of recovering the full amount the Tribunal
may order for recovery of compromised amount.
A certificate issued on the basis of award of ‘Lok Adalat’ can be modified by Debt
Recovery Tribunal by issuing a certificate for full amount in case the borrower fails to
make repayment in compliance with the terms of compromise before ‘Lok Adalat’.16
When a winding up petition at the instance of Bank is pending the compromise can
be entered only with the permission of Company Court.17
Compromise during execution is valid in law.
Despite having powers to enter into compromise, the recovery through compromise
was not sufficient, Reserve Bank of India took a kind of policy initiative to remove the
bad loan accounts from the books of Banks and consequently started launching of
one time settlement schemes thereby providing guidelines to public sector Banks for
setting these old bad loan accounts. However, Reserve Bank of India can not force to
make compromise as it is relinquishment of right and liabilities between the contending
and contracting parties but with the introduction of One Time Settlement schemes,
the borrowers are classified and policy to enter into compromise being streamlined
and declared, cases often come-up for enforcement of such One Time Settlement.
Reserve Bank of India is floating One Time Settlement for nationalized Bank at irregular
Chartered Accountant Practice Journal v February, 2014 39
intervals with the purpose of converting of book debts into liquid assets. The same is
not taken by Reserve Bank of India simply for the sole purpose of reducing the
outstanding balance of debts of the borrowers or for giving relief to them by waiving
a portion of their debts so that they may liquidate their reduced outstanding balance
at their pleasure. There has been no policy decision of the Government to waive a
certain percentage of debts of the borrower so as to reschedule the outstanding balance
of the borrowers by virtue of such Reserve Bank of India scheme for which the borrower
will be entitled to liquidate its debts on such reduced balance at any length of time
only by paying interest at the prime lending rate on diminishing balance.
Rather Reserve Bank of India scheme was introduced by giving incentive to the
borrowers by treating their outstanding balance of debts as on the date of happening
of an event so as to encourage them to liquidate the same within a particular time
frame. The compromises or One Time Settlement arrived at by Banks before Debt
Recovery Tribunal are different than the compromise before Civil Court. Both are
distinct. RBI has its role in One Time Settlement. Accordingly it issues necessary
guidelines to nationalized Banks for entering into One Time Settlement or compromise.
Guidelines of RBI issued for regulating One Time Settlement/compromise determine
the policies of Nationalized Banks.
The legal sanctity, behind these, Reserve Bank of India One Time Settlement schemes,
was enunciated as under by Punjab & Hariyana High Court.18
A. The One Time Settlement Schemes issued by Reserve Bank of India do not have
any statutory roots. Therefore, such schemes do not confer any statutory right on a
borrower to seek their enforcement by issuance of a mandamus nor it creates any
corresponding legal duty on the Financial Institution.
B. There is no provision made by Section 21 and Section 35-A of the Act, which may
empower a Chief General Manager to issue One Time Settlement Scheme. Therefore,
for this reason also it lacks statutory content.
C. The Courts can, however, in deserving cases in the interest of justice and to balance
equities may issue mandamus. However, it has to be strictly to avoid injustice to the
parties as an exception and not in a routine manner.
Similarly, Division Bench of Allahbad High Court 19 held that the guidelines for
recovery of N.P.A. did not confer a right on a party to get One Time Settlement and the
guidelines are purely administrative instructions which are not enforceable in law.
But Debt Recovery Appellate Tribunal Chennai took a different view on the basis of
Supreme Court verdict 20 by holding that guidelines having been issued under
Section 35A are binding upon the Banks.21 The view taken by Allahabad and Punjab
High Court appears on sound footings as Reserve Bank of India guidelines for One
Time Settlement cannot have the binding statutory force. These guidelines are directory
in nature and their implementation depends upon co-operation of third agency i.e.
borrower. Therefore their character is essentially directory; Further the interpretation/
application of such guidelines will ultimately depend upon the Banks who have to
implement them on the basis of ground realities. Moreover, being financial in nature,
it is ultimately the Bank itself which has to implement such guidelines in its larger
interest but with all restrictions and pre-cautions which cannot be spelt out.
High Court 22 of Orissa also upheld the view that it is for Bank to consider/settle the
matter because writ of mandamus can be granted only in a case where there is statutory
duty imposed upon the officer concerned and failure to perform the duty.
Finally Apex Court quashing the issue of mandamus directing Bank to declare the
account as NPA and to apply Reserve Bank of India guidelines, held Reserve Bank of
India guidelines are purely executive instructions having no statutory force.23
Therefore DRT/DRAT are unable to direct Bank to quantify amount in the account
for One Time Settlement and any such use of the forum of DRT will be illegal.24 Still it
is noticeable that in terms of Reserve Bank of India Circular DBOD . BP. BC. No. 112/
21.04; 048/2009-10 dated June 21, 2010 the officer/authority sanctioning a
compromise /One Time Settlement should append a certificate that the compromise
settlement is in conformity with Reserve Bank of India guidelines.
Where numbers of chances were given to borrower/defendant and ultimately Bank
informed that One Time Settlement stand rejected, it was held that borrower is not
serious and not entitled for revival of One Time Settlement.25
In a case Defendants’ offer of Rs.26.50 lacs in a special drive sitting before Debt
Recovery Tribunal was received by Bank without any protest and a finding of settlement
was recorded but Bank objected that its assistant manager who received cheque and
letter at special drive never agreed for the lesser amount than claim amount. Debt
Recovery Appellate Tribunal Chennai held 26 if really the Bank was not inclined to
accept the amount they should not have received. The Defendant is liable to be
discharged from liability.
Having received without raising objection for full and final settlement shows that
there was compromise upon the liability and the settlement was upheld. Where
borrower entered into compromise with Bank for a sum of Rs. 62 lacs and paid
Rs. 30.50 lacs, meanwhile revised Reserve Bank of India guidelines on One Time
Settlement came and Defendant claimed its benefit but Bank refused.
Debt Recovery Appellate Tribunal held that the Bank was duty bound to settle the
matter by applying the revised Reserve Bank of India guidelines, a refund of Rs. 16
lacs was ordered.27 Thus Reserve Bank of India guidelines were enforced to the
detriment of Bank’s interest. Where Bank issued letter rescinding/cancelling the One
Time Settlement but could not support the fact of service of the letter of the borrower,
it was held that the same was not capable of being enforced and accordingly, borrower
having been found prevented by formidable odds and difficulties beyond the control
in observing the compliance of the commitment under One Time Settlement, the
payments made by borrower beyond time were allowed under One Time Settlement 28
Interpreting the scope of Reserve Bank of India guidelines Andhra Pradesh High Court29
declared the guidelines cover only cases where Court cases are pending and in case
the Banks obtained decrees, the same have no application.
Similarly, Bombay High Court 30 while interpreting clause (C) of One Time Settlement
held that Reserve Bank of India scheme does not apply to cases wherein decrees/orders
have already been made and have become final. Whether Bank can withdraw a One
Time Settlement on finding suppression of material facts as the affidavit submitted by
borrower before Bank was not correct and because borrower repeatedly sought extension
of time, discussing the obligations of Bank, Delhi High Court 31 held fairness in such
cases demanded by defaulting or recalcitrant borrowers from Banks or Financial
Institutions is not a ‘one way street’ resulting in decline of the request of borrower.
On same lines where Bank shows its inability to accept the compromise proposal,
being in violation of Reserve Bank of India guideline, any imposition of settlement
cannot be permissible.32
But breach of terms of settlement cannot be viewed with the same rigidness and
where last installment was delayed by seven months the request of borrower for
regularization was granted on the ground that when Bank has received all payments
smilingly, it can not keep the securities and can not claim further amounts.33 Similarly
when borrower sought time from Bank but no reply was sent to borrower and borrower
made a belated payment about one year which was accepted by Bank, it was held
that after so many months of acceptance of amount Bank cannot repudiate the
One Time Settlement and a simple interest of 14 % was allowed.34
Where Defendant deposits some amount in Bank with the purpose of smooth
settlement under no-lien account by the direction of the Tribunal but compromise is
not materialized, the amount will be returnable.35
The time frame of scheme is of essence for any settlement/compromise. Since there
was no formal recording of One Time Settlement by Debt Recovery Tribunal in form of
consent decree then there is no impediment on Debt Recovery Tribunal to proceed
with claim case and to issue Recovery Certificate.36
When no recovery proceedings are going on before Recovery Officer any order
amending Recovery Certificate cannot be sent to Recovery Officer for compliance.
Thus it can be concluded that One Time Settlement schemes have played a vital and
pivotal role in settlement of chronic loan defaulters’ account. No doubt different
interpretations at different times have been by Courts, still the concept can be said to
have been stabilized.
Endnotes
1. Small Industries Development Bank of India v. Skylark Ropelines and Amusement Pvt. Ltd. and
Others 2007(1)Bank CLR 340 (DRT Kol.)
2. Allahabad Bank v. M/S Das Medical Agencies and Others 2005 (1) Bank CLR 781 (DRT Kol.)
3. State Bank of Travancore v. Indian Standard Casting Co. (P) Ltd. MANU/DR/0043/2006
4. State Bank of India, Bangalore v. M/S Vandana Electronics Pvt. Ltd. Bangalore and Others MANU/
DC/0012/2005
5. United Bank of India v. Sen and Pandit Pvt Ltd. (now in Liquidation) and Others 2009 (3) Bank
CLR 406 (DRT Kol.)
6. N.S. Suhas and Another v. Manager, Canara Bank, Bangalore MANU/DC/0022/2006
7. United Bank of India v. Ramdas Mahadev Prasad and Others 2004(1) Bank CLR 8 (S.C.)
8. UCO Bank v. Subodh Kumar Chakraborty 2009(1) Bank CLR 743 (DRT Kol.)
9. Allahabad Bank v. M/S Alex Enterprises and Others 2009(2) Bank CLR 666 (DRAT All)
10. Punjab and Sind Bank etc. v. M/S Vinay Rubbers and Others etc 2009 (1) Bank CLR 677 (DRT Del)
11. United Bank of India v. Guwahati Television Production and Others 2008 (3) Bank CLR 32
(DRAT KOL)
12. Allahbad Bank v. Suman Tea and Plywood Industries Pvt. Ltd. and Others 2003 (3) Bank CLR 115
(DRAT Cal.)
13. IFCI Ltd. v. Shri Tuljabhavani Shetkari Sakhar Karkhana Ltd. 2005 (1) Bank CLR 639 (DRT Mumbai)
14. Indian Bank, Chennai v. M/S Imran Leather Corporation and Others 2002 (1) Bank CLR 529
(DRAT Chennai
15. M/S Anoop Engineering Workshop and Others v. United Bank of India and Another 2008 (3)
(DRAT Kol.)
16. State Bank of India v. M/S RAC Package Industries and Others MANU/DC/0023/2006
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