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2002 DIGILAW 105 (CAL)

Prithis Kumar Roy v. State Bank of Indore

2002-02-19

ASIT KUMAR BISI

body2002
JUDGMENT None appears on behalf of the O.Ps. in spite of service of copy of the application. 2. Mr. S. Basu, learned Advocate appears on behalf of the petitioner. Let the affidavit of service filed by Mr. Basu be kept on the record. Heard Mr. Basu, learned Advocate for the petitioner. 3. The instant application under Article 227 of the Constitution of India is directed against Order No. 18 dated 8th April, 1997 passed by the Presiding Officer, Debts Recovery Tribunal, Calcutta in T.A. No. 26 of 1994. By the impugned order challenged in the instant revision application the Presiding Officer, Debts Recovery Tribunal Calcutta rejected the petition filed by the present petitioner praying for allowing him to take out its files, papers and documents lying inside the locked godown at the factory premises for the purpose of filing of the written statement in the suit. 4. Mr. Basu has contended that the Presiding Officer, Debts Recovery Tribunal acted illegally and with material irregularity in exercise of his jurisdiction by passing the impugned order whereby the said application of the petitioner was rejected. 5. It has been argued by Mr. Basu that even if there is alternative remedy provided under Section 20 of the Recovery of Debts due to the Banks and Financial Institutions Act, 1993 (for short the R.D.B. Act, 1993) this Court can still exercise its jurisdiction under Article 227 of the Constitution of India and set aside the impugned order. He has cited the case of (1) Tapan Kumar Mukhoty v. Bank of Madura Ltd. and Another reported in AIR 1999 Calcutta 305 (at page 310) wherein it has been held by the learned Single Judge of this Court that even if there is alternative remedy by way of an appeal against a particular order of any tribunal it is still open to an aggrieved party to file an application under Article 227 of the Constitution of India against such an order of the Tribunal if it is found that the order passed is without jurisdiction or arbitrary or in violation of the principles of natural Justice. 6. Mr. Basu has cited another Single Bench decision of this Court reported in (2) AIR 1997 Calcutta 96, M/s. Pratap Chandra Dey and Ors. v. Allahabad Bank and Ors. 6. Mr. Basu has cited another Single Bench decision of this Court reported in (2) AIR 1997 Calcutta 96, M/s. Pratap Chandra Dey and Ors. v. Allahabad Bank and Ors. wherein it has been held (at page 99) that even if an appeal lies against an order of the Bank Recovery Tribunal under the Act itself, in an appropriate case, the High Court still retains its jurisdiction to entertain a petition either under Articles 226 or 227 of the Constitution which is moved against an order of the Bank Recovery Tribunal. 7. Relying on the aforesaid two decisions of this Court Mr. Basu has submitted that this Court can well exercise its jurisdiction under Article 227 of the Constitution in the instant matter even if there is an alternative remedy provided under the R.D.B. Act, 1993 to prefer an appeal to the Appellate Tribunal against such an order passed by the Presiding Officer, Debts Recovery Tribunal, Calcutta. He has further pointed out that the• bar of jurisdiction as contemplated under Section 18 of the R.D.B. Act, 1993 is not applicable in the case where the High Court exercises power under Articles 226 and 227 of the Constitution of India. 8. In a recent decision of the Supreme Court in the case of (3) Punjab National Bank v. O.C. Krishnan and Ors. reported in 2001 (6) SCC 569 it has been held that even though the provision under the R.D.B. Act, 1993 cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the. Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. In the case of Punjab National Bank (supra), at Paragraph-6 (on page-570) the Supreme Court observed as follows:- "The Act has been enacted with a view to provide a special procedure for Recovery of Debts due to the Banks and the financial Institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act". 9. In view of the decision of the Supreme Court reported in Punjab National Bank (supra), it can be safely held that even though the provision relating to bar of jurisdiction as laid down under Section 18 of the R.D.B. Act, 1993 does not oust the jurisdiction of this Court under Article 227 of the Constitution of India this Court must refrain from exercising its jurisdiction under Article 227 of the Constitution when there is an alternative remedy available under the R.D.B. Act, 1993. As per Section 20(1)of the R.D.B. Act, 1993 any person aggrieved by an order made, or deemed to have been made by the Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter. Sub-section (2) of Section 20 of the R.D.B. Act, 1993 however, provides that no appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with consent of the parties. 10. Having regard to the legal position and facts and circumstances of the case emerging from the materials-on-record I am clearly of the view that the impugned order against which the instant revision application has been filed by the petitioner can well be challenged before the Appellate Tribunal as per Section 20(1) of R.D.B. Act, 1993 and that being so, in view of the decision of the Supreme Court in the case of Punjab National Bank (supra), this Court must refrain from exercising its jurisdiction under Article 227 of the Constitution since judicial prudence it. 11. 11. For the foregoing reasons the instant application under Article 227 of the Constitution of India is dismissed. Interim order stands vacated. 12. It is however made clear that dismissal of the instant application under Article 227 of the Constitution of India will not at all debar the petitioner from moving the Appellate Tribunal constituted under R.D.B. Act, 1993 against the order impugned in accordance with law. It is also made clear that I have not gone into the merits of the disputes between the parties and all these questions can well be agitated before the Appellate Tribunal, if the petitioner is advised to do so. 13. There will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be given to the parties after observing the required formalities as expeditiously as possible.