High Court Of Allahabad
Kirti Overseas & Ors. vs. Debt Recovery Appellate Tribunal & Ors.
Sections SCH. II, RULE 53, RULE 54, Art. 14, Recovery of Debts Due to Banks and Financial Institutions Act,1993, ss. 28, 29
G.P. Mathur & R.P. Misra, JJ.
Civil Misc. Writ Petn. No. 33688 of 2001
9th November, 2001
G.P. MATHUR, J. :
This petition under Art. 226 of the Constitution has been filed praying that a writ of mandamus be issued restraining the Debt Recovery Tribunal, Allahabad, from taking any action for recovery of Rs. 93,88,386 with interest from the petitioner in any manner whatsoever including by coercive measures in pursuance of the orders dt. 15th Oct., 1999, 19th June, 2001 and 6th Sept., 2001. A further prayer has been made that rr. 48 to 51 of the IT Rules (sic-Sch. II to the IT Act) be declared as null and void.
2. The petitioners were granted packing credit limit of Rs. 25 lacs and foreign bill purchase limit of the same amount by Union Bank of India. Dayal Bagh Marg, Agra (respondent No. 4) and an agreement was executed in that regard on 27th May, 1996. In order to ensure repayment of the loan, the petitioners created an equitable mortgage of three houses situated in Mathura City in favour of the respondent-bank. Subsequently the petitioners were sanctioned additional packing credit limit of Rs. 19 lacs and additional foreign bill purchase limit of Rs. 25 lacs. It appears that the petitioners did not repay the amount to the bank (respondent No. 4) and consequently it filed Original Application No. 3 of 1999 against the petitioners for the recovery of the amount before the Debt Recovery Tribunal, Jabalpur. They did not file their written statement and consequently the Tribunal proceeded ex parte against them. Ultimately by its order dt. 15th Oct., 1999, decreed the claim of the bank for a sum of Rs. 93,88,386 together with interest at the rate of 20 per cent per annum with quarterly rests with effect from 6th Jan., 1999, till the realisation of the outstanding dues. The order further provided that the bank may press into service its independent right for the sale of the hypothecated property without waiting for any order from the Tribunal and the defendants were debarred from transferring alienating or otherwise dealing with or disposing of the hypothecated/mortgaged properties without prior permission from the Tribunal. The petitioners challenged the aforesaid order of the Tribunal by filing a writ petition in the Jabalpur High Court but the same was dismissed as withdrawn by the order dt. 30th July, 2001, with liberty to file an appeal. The petitioners claim to have filed an appeal before the Debt Recovery Tribunal, Allahabad on 7th Sept., 2001, which has not yet been formally registered. The bank applied for issue of the recovery certificate and the Recovery Officer issued a certificate for attachment of the three houses which were mortgaged with the bank on 19th June, 2001. Thereafter an order has been passed on 6th Sept., 2001 sanctioning sale of the properties and issuance of sale proclamation. By the same order the Recovery Officer has fixed reserved price for the three houses which had been mortgaged and thereafter has issued certain procedural direction regarding affixation of copy of proclamation order. The sale proclamation has been published in some local newspapers and has also been announced by beat of drums on or near the property. The grievance of the petitioners is that the Recovery Officer, who is taking steps to recover the decretal amount, has not complied with the requirement of law and as such proceedings initiated by him and consequential orders passed in that regard are illegal.
It is not in dispute that a decree for Rs. 93,88,386 together with interest at the rate of 20 per cent per annum with quarterly rests w.e.f. 6th Jan., 1999 till the realisation of the outstanding dues has been passed against the defendants (writ petitioners) by the Debt Recovery Tribunal, Jabalpur by the judgment and order dt. 15th Oct., 1999. It is averred in para 14 of the writ petition that the petitioners have filed an appeal against the judgment and decree of the Tribunal before the Debt Recovery Appellate Tribunal, Allahabad on 7th Sept., 2001 and have also moved an application for staying the execution of the decree but the appeal has not yet been formally registered. There is no averment in the writ petition that the petitioners have deposited seventy-five per cent of the amount of debt as determined by the Tribunal and in view of s. 21 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as RDB Act), the appeal cannot be entertained by the Appellate Tribunal and this must be the reason for not registering the appeal. Thus there is no impediment in the way of bank to execute the decree and recover the amount. The bank has applied for initiating action for sale of the mortgaged properties and in that connection various orders have been passed by the Recovery Officer which have been impugned in the writ petition. Sub-s. (1) of s. 30 of the Act provides that notwithstanding anything contained in s. 29, any person aggrieved by an order of the Recovery Officer made under the Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal. Therefore, the petitioners have a right to prefer an appeal against the impugned orders before the Tribunal and in view of availability of this alternative remedy of appeal, the present writ petition under Art. 226 of the Constitution is not maintainable and the same is liable to be dismissed on this ground alone. Sri Ravi Kant, learned senior counsel has submitted that the petitioners have also sought declaration that the rr. 48 to 51 of the IT Rules (sicâSch. II to IT Act) which lay down procedures for attachment and sale, are unconstitutional and as this relief cannot be granted by the Tribunal, the writ petition cannot be dismissed on the ground of alternative remedy and the same is maintainable. The attack to the validity of the aforesaid rules may, therefore, be briefly examined. Sub-s. (5) of s. 28 of the RDB Act provides that the Recovery Officer may recover any amount of debt due from the defendant by distraint and sale of his movable property in the manner laid down in the Third Schedule to the IT Act. Sec. 29 of the RDB Act provides that the provisions of Second and
Third Schedules to the IT Act, 1961, and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time shall, as far as possible, apply with necessarymodifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of to the IT Act. The proviso to the section lays down that any reference under the said provisions and the rules to the “assessee” shall be construed as a reference to the defendant under this Act. Rules 53 and 54 of the IT Rules (sic-Sch. II to the IT Act) read as follows : (a) the property to be sold; “53. A proclamation of sale of immovable property shall be drawn up after notice to the defaulter, and shall state the time and place of sale, and shall specify, as fairly and accurately as possible : (b) the revenue, if any, assessed upon the property or any part thereof; (c) the amount for the recovery of which the sale is ordered; (cc) the reserve price, if any, below which the property may not be sold; and (d) any other thing which the TRO considers it material for a purchaser to know, in order to judge the nature and value of the property. 54(1) Every proclamation for the sale of immovable property shall be made at some place on or near such property by beat of drum or other customary mode, and a copy of the proclamation shall be affixed on a conspicuous part of the property and also upon a conspicuous part of the office of TRO. (2) Where the TRO so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both; and the cost of such publication shall be deemed to be costs of the sale. (3) Where the property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the TRO, otherwise be given.” Sri Ravi Kant has submitted that the aforesaid rules do not envisage affording of an opportunity of hearing to the defaulter or judgment debtor while as rr. 54 and 66 of Order XXI, CPC specifically provide for giving notice to the judgment debtor before settling or drawing up proclamation of sale and on account of the said reasons the rules are likely to cause a serious injury to the judgment debtor (defendant) and consequently they are ultra vires. He has submitted that the provisions of Order XXI r. 66(2), CPC have been held to be mandatory in Deshbandu Gupta vs. N.L. Anand (1994) 1 SCC 131 and also that a sale without notice is nullity. Learned counsel has further submitted that the object of the sale is to fetch the best price for the property so that the decree may be satisfied but sub-r. (2) of r. 54 gives a discretion to the Recovery Officer to publish the proclamation of sale in the Official Gazette or in a local newspaper and he may chose not to make any such publication which is bound to effect the price fetched for sale of the property on account of want of proper publicity. According to the learned counsel casting of such wide discretion upon the Recovery Officer, who is not a very senior or responsible officer, is wholly arbitrary and thus, the impugned rules are violative of Art. 14 of the Constitution of India.
In order to assail the validity of the rules, learned counsel for the petitioners has taken support of and has sought to draw a similarity with the provisions of CPC. In our opinion, the whole premises of the argument of Sri Ravi Kant is wrong. Prior to the enactment of RDB Act, the normal remedy for the recovery of debts due to banks and financial institutions was to institute a suit in the civil Court, which was tried and decided in accordance with the procedure laid down in CPC and the decree passed by the Courts was also executed in accordance with the procedure contained in Order XXI, CPC thereof. The procedure of suit was a long and cumbersome process. Often it took years and decades to recover the amount. The funds are advanced out of State and public money and therefore, the recovery thereof should be so expeditious that fresh advances may be made available to others who have not yet got any financial assistance from the State agency. The existing procedure for recovery of debts due to banks and financial institutions had blocked a significant portion of their funds in unproductive assets, the value of which also deteriorated with the passage of time. Several committees were appointed by the Government to suggest ways and means by which dues to the banks and financial institutions could be recovered expeditiously. It was with that end in view that the RDB Act, 1993 was enacted. The preamble of the Act reads as follows : “An Act 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 brief scrutiny of the provisions of the Act would show that it lays a great emphasis on time schedule so as to meet its objectives of expeditious adjudication and detailed procedure for trial of suits and execution of decrees provided under CPC has been given a go-bye. Sub-s. (4) of s. 19 of the Act provides that on receipt of the application from a bank or financial institution for the recovery of the amount, the Tribunal shall issue summons requiring the defendant to show cause within thirty days of the service of summons as to why the relief prayed for should not be granted. Sub-s. (24) of the same section lays down that the application made to the Tribunal under sub-s. (1) or sub-s. (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application finally within one hundred and eight days from the date of receipt of the application. Sub-s. (3) of s. 20 lays down that every appeal under sub-s. (1) shall be filed within a period of forty-five days from the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him. The period prescribed here is less than the period of limitation prescribed for filing an appeal in the High Court. Sub-s. (6) of s. 20 enjoins that the appeal filed before the appellate Tribunal shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months. Thus, a time schedule has been fixed for conducting the proceedings including that before the appellate Tribunal. Sub-s. (1) of s. 22 specifically provides that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the CPC but shall be guided by the principles of natural justice and, they shall have powers to regulate their own procedure. Chapter V deals with recovery of debt determined by Tribunal and a complete procedure for recovery of the debts has been provided in ss. 25 to 30.
The legislature has consciously and deliberately provided a different mode for recovery of the debts which is very much different from the provisions of Order XXI, CPC. Sec. 21 of the Act which enjoins that an appeal shall not be entertained by the Tribunal unless the person preferring the appeal has deposited seventy-five per cent of the amount of debt due from him as determined by the Tribunal is a very stringent provision and obviously its object is that once a decree is passed by the Tribunal, the defendant may not be able to delay or defeat the interest of the bank or financial institutions in getting their dues by filing an appeal and securing a stay order. Sub-r. (2) of r. 54 of the IT Rules (sic-Sch. II to IT Act) casts a discretion on the Recovery Officer to publish the sale proclamation in the Official Gazette or in a local newspaper. This provision is similar to sub-r. (2) of r. 67 of Order XXI, CPC with the only difference that here the discretion is with the Court and thus there is no major difference between the two provisions. It is common knowledge that publication in Official Gazette is a very time-taking process and the publication in a reputed newspaper also takes time. Therefore, a discretion has been left with the Recovery Officer whether to publish the sale proclamation in the aforesaid manner or not having regard to the time constraint. The provisions of the Act referred to above clearly show that in order to achieve the object for which the Act has been enacted, namely, expeditious recovery of the dues of banks and financial institutions, the Parliament has not only fixed a time schedule but also made a departure from the normal provision of CPC. Therefore, the contention of the petitioners that provisions of IT Rules are ultra vires the Constitution, cannot be accepted. For the reasons discussed above, the writ petition lacks merit and is dismissed summarily at the admission stage.
[Citation : 258 ITR 567]