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2002 DIGILAW 287 (CAL)

In re : Dindayal Agarwal v. UCO Bank

2002-04-29

HRISHIKESH BANERJI

body2002
JUDGMENT The judgment of the Court was as follows :–– The present Revisional Application under Article 227 of the Constitution of India is directed against the order No. 11 dated June 28, 1995 passed by the Presiding Officer, Debts Recovery Tribunal, Calcutta (the 'Tribunal' for short) in O. A. Case No. 65 of 1995 of his file. 2. By the impugned order the Tribunal rejected the petitioner's earlier applications dated May 23, 1995 and June 8, 1995 for vacating the ex parte order dated 28.6.1995 passed by the Tribunal. 3. The petitioner's case is that on enquiries from the Office of the Tribunal on May 18, 1995 he learnt that the case was fixed for ex parte hearing on May 23, 1995. It is alleged that although he appeared in the case with his Advocate at 11-30 a.m., the matter had been heard ex parte before his arrival at 10-30 a.m. Subsequently, on June 8, 1995 he preferred an application before the Tribunal for fixing the date of hearing of the petition and to give him an opportunity of hearing and sent the same by speed post. By its order dated June 16, 1995 the Tribunal adjourned the hearing of the case to June 28, 1995 and receiving the said order on June 28, 1995 the petitioner was present with his learned Advocate and made submissions in support of his two applications filed before the Tribunal but the Tribunal rejected both the applications. In the present Revisional Application the order has been challenged on the ground that the Tribunal exercised its jurisdiction illegally and with material irregularity in not considering the fact that the petitioner was prevented by sufficient cause from appearing when the matter was called on for hearing and that in such circumstances the impugned order passed by the Tribunal is liable to be set aside. 4. The Tribunal held that because an ex parte order had already been passed and a certificate to that effect had been issued, the Tribunal could not vacate the order passed by it after the ex parte hearing of the said case. 5. The question to be decided is whether in the facts and circumstances as stated above the order passed by the Tribunal should be interfered with by this Court in its Revisional Jurisdiction under Article 227 of the Constitution of India. 5. The question to be decided is whether in the facts and circumstances as stated above the order passed by the Tribunal should be interfered with by this Court in its Revisional Jurisdiction under Article 227 of the Constitution of India. Since, the impugned order is an appealable order and it was open to the petitioner to move the appellate forum in the hierarchy as provided under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (the 1993 Act' for short) for the relief sought for, it would not be proper to entertain the present application under Article 227 of the Constitution of India as it does not appear that the impugned order was passed without jurisdiction or against the principles of natural Justice or was manifestly illegal. 6. In this view I find support from the decision of a learned Single Judge of this Court in the case of (1) Jenson & Nicholson (India) Ltd. v. Industrial Investment Bank of India & Ors. reported in 2002 WBLR (Cal) 412 cited by the learned Counsel for the opposite party. 7. The learned Counsel for the petitioner refers to the decisions in (2) AIR 1998 Calcutta 288 (Jaya Sen v. Sujit Kr. Sarkar) and (3) 2000 (1) CHN 866 (K.P. Perumal v. A.N. Administration & Ors.) in support of his contention that it is well known that any decision is an authority for what it decides and not what can be logically deduced therefrom. 8. In the case at hand this Court does not find any reason to depart from what has been held in 2002 WBLR (Cal) 412 (supra), regarding the scope of an application under Article 227 of the Constitution of India in the circumstances as states hereinbefore. 9. In (4) 2001 (6) SCC 569 (Punjab National Bank v. O.C. Krishnan & Ors.) it has been held by the Supreme Court that even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 & 227 of the Constitution of India, nevertheless, when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. 10. On consideration of the aforesaid decisions I am of the view that the impugned order does not call for any interference and the Revisional Application is accordingly, dismissed. No order as to costs. 10. On consideration of the aforesaid decisions I am of the view that the impugned order does not call for any interference and the Revisional Application is accordingly, dismissed. No order as to costs. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.