Shambhu Chitra Mandir v. Debts Recovery Tribunal, Jabalpur
2001-10-04
DIPAK MISRA
body2001
DigiLaw.ai
Judgment ( 1. ) INVOKING the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has called in question the propriety and legal validity of the order passed by the Recovery Officer of the Debts Recovery Tribunal in Transfer Execution No. 39/2000 and affirmation thereof in Appeal No. 11/2001 by the Debts Recovery Tribunal. ( 2. ) IT is not disputed by Mr. Kishore Shrivastava, learned counsel for the petitioners, that feeling aggrieved by the order of Recovery Officer the petitioner had preferred an appeal before the Tribunal taking recourse to Section 30 of the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Act ). The learned counsel impressed upon me to advert to the merits of the case. Prior to that, this Court thinks it apposite to address itself whether there is an alternative remedy or not. In this context, it is apposite to reproduce Section 30 which has been substituted by Act No. 1 of 2000. The said provision reads as under :- " 30. Appeal against the order of Recovery Officer.-- (1) Notwithstanding contained in Section 39 any person aggrieved by an order of the Recovery Officer made under this 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. (2) On receipt of an appeal under sub-section (1) the Tribunal may after giving an opportunity to the applicant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under Sections 25 to 28 (both inclusive ). " ( 3. ) ON a perusal of the aforesaid provision it is quite vivid that if a person is aggrieved by an order of the Recovery Officer he may prefer an appeal to the Tribunal. In this regard, Section 20 of the Act may be referred. The aforesaid provision reads as under :- "20, Appeal to the Appellate Tribunal.-- (1) Save as provided in Sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.
The aforesaid provision reads as under :- "20, Appeal to the Appellate Tribunal.-- (1) Save as provided in Sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter. (2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties. (3) Every appeal under Sub-section (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 and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within the period. (4) On receipt of an appeal under Sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Tribunal. (6) The appeal filed before the Appellate Tribunal under Sub-section (1) 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 from the date of receipt of the appeal. " ( 4. ) ON a perusal of the language employed in Section 20 it is apparent that if a person is aggrieved by an order made, or deemed to have been made, by a Tribunal under the Act, may prefer an appeal to the Appellate Tribunal having jurisdiction in the matter. ( 5. ) IT is submitted by Mr. Kishore Shrivaslava, learned counsel for the petitioner, that the an order should be construed to be a final order which is required to be passed under Section 19 of the Act and would not include any interlocutory order.
( 5. ) IT is submitted by Mr. Kishore Shrivaslava, learned counsel for the petitioner, that the an order should be construed to be a final order which is required to be passed under Section 19 of the Act and would not include any interlocutory order. It is also submitted by him that even if an interlocutory order is taken within the ambit and sweep of an order but it would not include an order passed under Section 30 of the Act that being an order passed by the Tribunal in exercise of appellate jurisdiction. If Section 20 is read in proper perspective and understood in its connotative context there remains no scintilla of doubt that any order passed by the Tribunal can be assailed in appeal before the Appellate Tribunal by the person aggrieved. In the case of Earnest Health Care Ltd. and others v. Debts Recovery Tribunal, Jabalpur and Ors (W. P. No. 4955 of 2000) this Court had an occasion to deal with the concept of an order and after deciberating on the issue at length came to hold that an order would include any or every order passed by the Debts Recovery Tribunal and the same would be appealable before the Appellate Tribunal. ( 6. ) IN the case at hand Mr. Kishore Shrivastava, learned counsel, has canvassed that Section 30 provides for an appeal to be decided by a Presiding Officer of the Debts Recovery Tribunal, and hence, no second appeal would lie. The aforesaid submission looks quite attractive on a first flash but it melts into insignificance on a deeper probe. It cannot be lost sight of the fact that in Section 20 words used are "an order" passed by the Tribunal. It cannot be said by any stretch of imagination that when the Tribunal passed the order under Section 30 it is not an order passed by it. There can not be an artificial distinction between the original order and an appellate order because such a distinction does not flow from the language employed under Section 20. Hence, I am not persuaded by the submissions of Mr. Shrivastava and accordingly, they are repelled. ( 7. ) AT this juncture Mr. Shrivastava submitted that the petitioner may be granted time to prefer an appeal and he may be protected.
Hence, I am not persuaded by the submissions of Mr. Shrivastava and accordingly, they are repelled. ( 7. ) AT this juncture Mr. Shrivastava submitted that the petitioner may be granted time to prefer an appeal and he may be protected. Considering the totality of circumstances it is thought apposite to grant time to the petitioner to prefer an appeal before the Appellate Tribunal. It would be open to the petitioner to prefer an application for stay at the time of presentation of memorandum of appeal and move the Appellate Tribunal for protective order. For a period of three weeks no coercive steps shall be taken against the petitioner. ( 8. ) WITH the aforesaid observation and direction the writ petition stands disposed of.