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2001 DIGILAW 630 (CAL)

D. T. M. Construction Pvt. Ltd. v. United Bank of India

2001-09-26

P.K.Samanta

body2001
JUDGMENT P. K. Samanta, J.: This is an application under Article 227 of the Constitution of India against an order dated 30.8.2001 passed by the Recovery Officer under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Without going into much details of this case, it appears that the proceeding before the Tribunal was decreed ex parte against which a miscellaneous application was filed by the debtor /petitioners for recalling of the same. While the said miscellaneous application is pending, the certificate holder put the said decree into execution before the Recovery Officer wherein the debtor-petitioners prayed for stay of all further proceedings before the Recovery Officer in execution of the decree passed by the Tribunal, which was rejected by the impugned order. In support of the said order it was strenuously argued that under section 30 of the said Act the impugned order being appealable, the petition under Article 227 of the Constitution of India is not maintainable. There is no dispute whatsoever that an alternative remedy is not an absolute bar to exercise the jurisdiction under Articles 226 and 227 of the Constitution of India. Such is the observation also made by the Supreme Court in a very recent unreported decision in the case of Punjab National Bank vs. O.C. Krishnan, dated 13.8.2001. Accordingly, I am also of the opinion that this petition under Article 227 of the Constitution of India is maintainable particularly when the Recovery Officer having had the knowledge of the aforesaid miscellaneous application pending before the Tribunal proceeded to recover the certificate amount in execution of the decree so passed, while the miscellaneous application as above is pending before the Tribunal. However, the said miscellaneous application being pending before the Tribunal the debtor-petitioner ought to have applied before the Tribunal and not before the Recovery Officer. Even then for the ends of justice and for the purpose of avoiding multiplicity of proceeding the said Recovery Officer should have stayed the proceeding for a limited period with an opportunity to the debtor/petitioners to approach the Tribunal which is in a better position to consider in the facts and circumstances of this case whether an order for stay of all further proceedings before the Recovery Officer is called for or not. 2. 2. I, therefore, dispose of this petition under Article 227 of the Constitution of India with a direction for stay of all further proceedings before the Recovery Officer for a period of two weeks from date during which the debtor/petitioner shall be entitled to approach the Tribunal for stay of all further proceedings of the recovery proceeding. 3. If the debtor/petitioners approach the Tribunal for stay of all further proceedings before the Recovery Officer, then the same shall be decided independently on its merits without being influenced by this order of this Court. 4. If urgent xerox certified copy of this order is applied for by the parties, the same should be given expeditiously. Petition disposed of with direction.