JUDGMENT Surendra Nagar Tea Estate Pvt. Ltd. along with others filed an application under Article 227 of the Constitution being registered as C.R. 1570 of 2002 and the New Red Bank Tea Company Pvt. Ltd. along with others also filed an application under Article 227 of the Constitution of India being registered as C.R. 1571 of 2002 challenging an identical order dated 22nd May, 2002 passed by Presiding Officer, Kolkata, Debts Recovery Tribunal No.1 in connection with C.A. No. 195 of 1998 O.A. No. 194 of 1998 respectively. 2. Since both the applications relate to identical order of the Tribunal and since common question of fact and law is involved, both the applications may be disposed of by a common order. 3. It would be quite relevant and also beneficial for disposal of the applications under consideration, if a brief statement of fact appearing from the applications is reproduced before discussing the points of fact and law raised and submitted by the respective parties. 4. It is the case of the petitioners that both Surendra Nagar Tea Estate Pvt. Ltd. as well as the New Red Bank Tea Company as plaintiffs filed a suit before this High Court being C.S. No. 207 of 1998 claiming a sum of Rs. 929 lakhs, rendition of account and other reliefs against the opposite party bank and after filing of that suit before this High Court, the opposite party bank by way of counter blast filed two application nos. being 194 of 1998 and 195 of 1998 before the Tribunal with a prayer for realisation of about 17 crores from both the petitioners along with other prayers like appointment of receiver etc. 5. The petitioners in course of hearing of the suit before the High Court filed an application for transfer of pending applications before the Tribunal to the High Court for a comprehensive hearing and that petition was ultimately rejected by the High Court. The opposite party bank thereafter filed a petition for transfer of the pending suit filed by the petitioners to the Tribunal and upon hearing the petitioners and the opposite party it was decided by a Learned Single Judge of this High Court to refer the said petition of the opposite party to a larger bench as there are conflicting judicial opinions on the issue. 6. 6. The petitioners submit that earlier the opposite party bank made an application in both the pending cases before the Tribunal for appointment of receiver and when the petitioners preferred an appeal against that order of the Tribunal before the Appellate Authority under the Debt Recovery Tribunal Act, the order of the Tribunal was set aside and there was direction upon the Tribunal to re-hear the matter and to pass a reasoned order. 7. The petitioners contend that the opposite party bank filed a 2nd receiver petition in both the pending cases and at the time of hearing, it was mentioned on behalf of the petitioners that as the prayer of the opposite party bank regarding transfer of the pending suit before the High Court filed by the petitioners has been referred to a larger bench of the High Court, judicial propriety demands that further proceeding of both the cases pending before the Tribunal should be stayed and no order should be passed on the application of the opposite party bank regarding appointment of receiver. The petitioners contend that the Tribunal ignoring the order passed by the Learned Single Judge of this High Court proceeded with the hearing regarding the receiver matter and ultimately by its order dated 22nd May, 2002 receiver has been appointed in both O.A. Nos.194 and 195 of 1998 and challenging the said order, petitioners have filed these two separate applications under Article 227 of the Constitution. 8. Appearing for the petitioners in C.R. No. 1571 of 2002, Mr. Chatterjee has challenged the impugned order mainly on two grounds, first, it is the submission of Mr. 8. Appearing for the petitioners in C.R. No. 1571 of 2002, Mr. Chatterjee has challenged the impugned order mainly on two grounds, first, it is the submission of Mr. Chatterjee that the impugned order has been recorded without having any regard for judicial decorum, decency and propriety because admittedly the Debts Recovery Tribunal is subordinate to the High Court and under the power of superintendence of the High Court and although the Learned Single Judge passing an order in connection with a pending suit before the High Court was not exercising the constitutional writ jurisdiction, yet, judicial propriety demands that when by the order of the Learned Single Judge, the prayer of transferring the pending suit to the Tribunal has been referred to the larger bench for consideration and the same was brought to the notice and attention of the Presiding Officer of the Tribunal, in all fairness, the Learned Presiding Officer should have refrained himself from proceeding with the matter regarding appointment of receiver and should have granted stay regarding hearing of the cases pending before him. Mr. Chatterjee in his elaborate argument on this particular issue after discussing the order of the Learned Single Judge of this High Court, concludes that on this question of judicial propriety alone, the impugned order is required to be set aside lest a bad and unhealthy precedent may be established in the matter of discharge of duties by Courts and Tribunals subordinate to the High Court. 9. Regarding the 2nd ground of his argument, Mr. Chatterjee has and lysed the impugned order as recorded by the Presiding Officer of the Tribunal and submits that the order is prima-facie, bad as it did not discuss the essential ingredients required for appointment of receiver as contemplated in the Code of Civil Procedure. Mr. Chatterjee submits that under the statute the Tribunal is well within its power and authority to consider the prayer for appointment of receiver, but, before exercising that power the Tribunal must record why it considers that it would be convenient and also just and equitable to appoint a receiver and the Tribunal should not be guided by any sentimental consideration or by any consideration beyond the record. Mr. Mr. Chatterjee contends that it will appear from the impugned order that the Tribunal has drawn a conclusion without verification of evidence that the petitioners are defaulters regarding payment of bank loan together with interest and at the same time, the petitioners are conducting their business and earning profit and the petitioners are deliberately neglecting to pay legal dues of the bank and in that perspective the Tribunal observed that it would be both convenient and just to appoint a receiver over the property in dispute. Mr. Chatterjee submits that the very reasoning of the Tribunal behind appointment of the receiver are factually incorrect and legally untenable and in support of this position Mr. Chatterjee has cited the decisions reported in I.L.R. Calcutta 1955, Vol I, page 478, AIR 1942 Madras, page 396, AIR 1969 Supreme Court, page 823 and also 2001 (1) CLJ, page 246. 10. Mr. Ukil, appearing for the petitioners in C.R. No.1570 of 2002 while adopting the argument of Mr. Chatterjee in general has submitted further challenging the impugned order that the Tribunal committed a serious error by considering the present application of the opposite party bank for appointment of receiver when there was already a receiver over the suit property being appointed by the previous order of the Tribunal and that order of the Tribunal was not disturbed by the subsequent order of the Appellate Authority and in view of that position the Tribunal ought to have considered that over the selfsame property there was no scope for appointment of 2nd receiver until and unless the first receiver has been discharged by an order of the Tribunal. 11. Mr. Ukil contends that from the ordering portion of the Tribunal it is found that Tribunal without verification of material documents directed the receiver so appointed to appropriate 30% of the sale proceeds and to allow the petitioners to utilise the balance sale proceeds to meet their day to day expenses and this direction of the Tribunal is quite arbitrary and without any foundation and hence, the impugned order is liable to be set aside which cannot have any practical meaning or application. 12. Mr. 12. Mr. Sen, appearing for the opposite party bank at the initial stage of hearing has waved the service of rule which was issued while admitting both the applications and after receiving copy of both the applications he has made it clear that he has instruction from the opposite party bank to oppose both the applications, without filing any affidavit in opposition. Mr. Sen during his argument has challenged the maintainability of the applications and he has also challenged submissions made on behalf of the petitioners on the question of merit. 13. On the question of maintainability, Mr. Sen submits that the impugned order is an appealable order and there is provision of appeal under Section 20 of the Tribunal Act and without exhausting the available legal remedy as provided in the Act itself, there is no scope for the petitioners to invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution. Mr. Sen in support of his contention has relied on a decision of this Court reported in Jenson and Nicholson (India) Ltd. v. Industrial Investment Bank of India & Ors. reported in 2002(1) CHN, page 671. Mr. Sen has also referred to another decision of this Court in Prithis Kr. Roy v. State Bank of Indore & Ors. reported in 2002(1) CLJ, page 407. Apart from these two decisions, Mr. Sen has drawn attention of the Court to the decision of a Division Bench of this Court in the case of Drawings and Metals & Ors. v. State Bank of India reported in Calcutta Law Times 1992(2), page 289. In addition to those Calcutta High Court decisions, Mr. Sen has also relied on a decision of the Hon'ble Supreme Court in the case of C.A. Abraham v. Income Tax Officer, Kottayam & Anr. reported in AIR 1961 Supreme Court, page 609 and also a decision of the Hon'ble Supreme Court in the case of Punjab National Bank v. O.C. Krishnan & Ors. reported in 2001 (6) Supreme Court Cases, page 569. 14. With reference to the abovementioned reported decisions of both the Hon'ble Supreme Court as well as of this High Court, Mr. reported in AIR 1961 Supreme Court, page 609 and also a decision of the Hon'ble Supreme Court in the case of Punjab National Bank v. O.C. Krishnan & Ors. reported in 2001 (6) Supreme Court Cases, page 569. 14. With reference to the abovementioned reported decisions of both the Hon'ble Supreme Court as well as of this High Court, Mr. Sen submits that there is no doubt that even in a case where an appeal lies, an application under Article 227 of the Constitution of India can be entertained, but, that should be made in very exceptional cases and only where there has been manifest injustice, resulting from patent error of procedure, perversity of findings and arbitrary or capricious exercise of power. Mr. Sen contends that it is settled position of law that existence of an alternative remedy is not absolute bar in the matter of entertaining an application under Article 227 of the Constitution of India, but, law is equally settled that such discretion should not be exercised unless it is established that the order impugned in such application was passed without jurisdiction or against the principle of natural justice or is manifestly illegal which requires no elaborate argument. 15. With reference to the observation of the Hon'ble Supreme Court recorded in the case of Punjab National Bank (supra), Mr. Sen submits that at para 6 of the said judgment it has been held that 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. 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.” 16. Mr. 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.” 16. Mr. Sen contends that in view of this clear pronouncement of the Apex Court when there is provision of appeal in the act itself and when the same petitioners on earlier occasion being aggrieved by the order of the Tribunal passed in connection with appointment of receiver, preferred appeal under the Act itself, now, the petitioners cannot be allowed to bypass the provisions of appeal and to approach this Court Article 227 of the Constitution of India. 17. On the question of merit, Mr. Sen submits that after giving parties reasonable opportunity to represent their case and after considering all relevant factors, the Tribunal thought it fit and proper to appoint receiver by the impugned order and the Tribunal did not act in violation of alleged judicial propriety when there was no stay order from the High Court regarding hearing of the cases pending before it and in this regard the conduct of the present petitioners should also be taken into account which is very much clear from the averments of the petition itself. Mr. Sen submits that only on receipt of notice regarding intention of the bank for filing of cases before the Tribunal for realisation of its legal dues, the petitioners filed a suit before the High Court and the earlier attempt of the petitioners to stali the hearing of those applications pending before the Tribunal having failed, the petitioners adopted various methods to delay the disposal of the cases before the Tribunal and at the same time they are conducting their business and earning profit without caring to discharge their legal liabilities towards a nationalised bank. Mr. Sen thus concludes that both on the question of maintainability as well as on the question of merit the present applications are liable to be rejected and the rule issued earlier are required to be discharged. 18. Both Mr. Chatterjee and Mr. Ukil, appearing for the respective petitioners have strongly opposed the submissions of Mr. Sen on the question of maintainability of the present petition. Mr. 18. Both Mr. Chatterjee and Mr. Ukil, appearing for the respective petitioners have strongly opposed the submissions of Mr. Sen on the question of maintainability of the present petition. Mr. Chatterjee submits that alternative remedy cannot be a ground for not entertaining an application under Article 227 and this is an established position of law. Mr. Chatterjee submits that when there is alternative remedy available to an aggrieved party, it is a matter of discretion for the High Court whether to entertain an application under Article 227 or not and this discretion is required to be exercised judiciously and having regard to the fact and circumstances made out by the petitioners while approaching the Court to entertain their application under Article 227 of the Constitution. 19. Mr. Chatterjee submits that in the present case as it has already been urged the Tribunal violated the principle of natural Justice and acted in violation of judicial propriety by ignoring an order of Learned Single Judge of this High Court and in that perspective alone, only this High Court is the proper authority to discourage the undesirable trend of judicial functioning as practised by the Tribunal while passing the impugned order and in that background alone, the present petition should be entertained and this Court should exercise its power of superintendence over the Tribunal subordinate to it and in exercising such power this Court should render true and proper justice to the petitioners and the petitioners should not be asked to avail of the alternative remedy in the background of the fact and circumstances of the present case. 20. Mr. Ukil in addition to the above submissions of Mr. Chatterjee contends that there is plethora of decisions of the Apex Court that alternative remedy is not a bar in invoking the extraordinary jurisdiction of the High Court under Article 227 of the Constitution and if the aggrieved party can satisfy from the record that the impugned order lacks jurisdiction and propriety, the petitioners should not be asked to avail of the procedure of appeal which would be both time consuming and harassing in view of the gravity of the situation arising out of the impugned order. 21. Mr. 21. Mr. Chatterjee is fair enough to admit the true legal position that when there is provision of alternative remedy, it is purely the matter of discretion for the High Court whether to entertain an application under Article 227 of the Constitution and Mr. Chatterjee has further clarified in his submission that such discretion should be exercised in a judicious manner and in the present fact and circumstances, Mr. Chatterjee is of the opinion that when the Tribunal recorded the impugned order in violation of judicial propriety and in violation of the principle of natural justice, there appears no legal bar in entertaining the present application under Article 227 of the Constitution. 22. In the case of C.A. Ibrahim (supra) where the matter related to the Income Tax Act, the Hon'ble Supreme Court observes that the appellant cannot be permitted to abandon resort to the machinery available within the act and to invoke the jurisdiction of the High Court under Article 226 when he had adequate remedy open to him by way of appeal to the Tribunal. In the case of Punjab National Bank (supra), the Hon'ble Supreme Court with reference to the provisions of recovery of debts due to Banks and Financial Institutions Act, 1993 was pleased to observe after discussing the object of the Act that when there is a hierarchy of appeal provided in the Act by filing an appeal under Section 20, the 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. From the decision of a Division Bench judgment of this Court given in the case of Drawings and Metals & Ors. (supra) it is available that the Court was of the view that only in the very exceptional cases and only where there has been manifest injustice resulting from patent error of procedure, perversity of findings, arbitrary and capricious exercise of power, the High Court can entertain an application under Article 227 of the Constitution notwithstanding the provision of appeal. Similar was the view in the decision reported in the case of Jenson and Nicholson (India) Ltd. (supra). 23. Mr. Chatterjee has in fact not disputed at all the above legal proposition, but, submits with force that the present case may be considered very exceptional case and according to Mr. Similar was the view in the decision reported in the case of Jenson and Nicholson (India) Ltd. (supra). 23. Mr. Chatterjee has in fact not disputed at all the above legal proposition, but, submits with force that the present case may be considered very exceptional case and according to Mr. Chatterjee, there has been manifest injustice by passing the impugned order which is nothing but an arbitrary and capricious exercise of power. 24. Having regard to the submissions made on behalf of the parties on the question of maintainability and in view of the legal position as clarified above, the question for determination is whether the petitioners have succeeded in their point that there is patent error of procedure, perversity of finding and arbitrary or capricious exercise of power by the Tribunal in recording the impugned order. After giving my anxious consideration to the impugned order and after carefully going through the averments of both the applications and after hearing submissions of the Learned Advocates, I am of the view that the Tribunal neither committed any error of procedure nor there is anything in the impugned order wherefrom an inference can be drawn that there is perversity of findings or any arbitrary exercise of power. 25. It is available from the. impugned order that both the sides were given ample opportunity to represent their case and only after considering the points raised by the parties and after considering all the relevant fact and circumstances the Tribunal recorded the impugned order and hence, there is no ground for the petitioner in support of their case that there has been manifest injustice resulting from patent error of procedure or arbitrary or capricious j exercise of power. 26. Thus, in view of what has been discussed above and in view of the fact that on earlier occasion these petitioners preferred appeal as provided in the Act, I am of the view that the present application under Article 227 of the Constitution cannot be entertained. 27. As I am of the opinion that the present applications are liable to be rejected on the question of maintainability I am not inclined to enter into the merit of the present case and parties are at liberty 10 raise all the points regarding merit of the case before the Appellate Forum. 28. Accordingly, the rules issued earlier stand discharged in respect of both the Civil Rule Nos. 28. Accordingly, the rules issued earlier stand discharged in respect of both the Civil Rule Nos. 1570 and 1571 of 2002. 29. However, considering nature of the impugned order and urgency of the matter, I think it fit and proper to direct the present petitioners to prefer appeal before the Appellate Tribunal within a month from date and the Appellate Tribunal is to dispose of the appeal, if so preferred, as expeditiously as possible and in this context, I am further inclined to extend the interim order of stay regarding appointment of receiver till the filing of the appeal by the petitioners and after filing of the appeal, it will be open to the Learned Appellate Tribunal to consider the prayer of extention of the interim order. It is made clear that if no appeal is filed as per this direction, the interim order shall stand vacated after expiry of the period fixed for preferring the appeal. 30. Considering the fact and circumstances of the case there will be no order as to costs. Urgent xerox certified copy, if applied for, may be supplied within three days from the date of application after complying with all necessary formalities.