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2003 DIGILAW 176 (CAL)

Eureka Forbes Limited v. Debt Recovery Tribunal

2003-04-07

PRATAP KUMAR RAY

body2003
Judgment Heard learned Advocates appearing for the parties. 2. In this application under Article 226 of the Constitution of India the petitioners Eureka Forbes Limited and Others have challenged Order No. 21 dated 27.8.96 (wrongly mentioned in the copy of order as 17.8.96) passed by the Debt Recovery Tribunal, Calcutta-1 having its office at Salt Lake, Calcutta, in Case No. T.A. No. 15 of 1994. 3. This application has been opposed by the opposite party No. 2 Allahabad Bank without filing any affidavit in opposition. 4. Admitted facts with reference to this application are to this effect. 5. Under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the said Act for brevity the Debt Recovery Tribunal (hereinafter referred to as the said Tribunal for brevity) decided T.A. No. 15 of 1994 which was renumbered in the Tribunal from original Money Suit No. 3 of 1993 pending before the 8th Assistant District Judge at Alipore. Eureka Forbes Limited suffered judgment and decree of tile said Tribunal decreeing the money claim as made by the bank. Eureka Forbes Limited (hereinafter referred to as the said company for brevity) moved a writ petition being W.P. No. 1804 of 1995 assailing the jurisdiction of the said Tribunal in passing such judgment and decree against the said company touching the constitutional validity of the said Act as well as its liability to pay the decreed amount. By the order dated 3.11.95, Satyabrata Sinha, J., (as His Lordship then was) passed an order when the writ application was moved before him to this effect :- "Let this matter appear in the list 4 weeks hence as "For Orders" Affidavit-in-opposition to be filed within 3 weeks from date; affidavit-in-reply to be filed within one week thereafter. In the meantime, the execution case may proceed but no final order shall be passed thereupon without the leave of this Court. The question of granting an interim order as prayed for in this application shall be considered after the respondents file their affidavit as directed. All parties to act on a signed copy of the minutes of this order on the usual undertaking." 6. The judgment and decree passed by the said Tribunal for realisation ultimately culminated to a certificate proceeding before the said Tribunal registered as RP/48/95/TA/15/94. All parties to act on a signed copy of the minutes of this order on the usual undertaking." 6. The judgment and decree passed by the said Tribunal for realisation ultimately culminated to a certificate proceeding before the said Tribunal registered as RP/48/95/TA/15/94. By the order dated 4.3.96 the said Tribunal appointed one learned Advocate as Receiver for making inventory of the assets of certificate debtors at the factory premises as mentioned thereto and for taking possession of the attachable assets. Warrant of attachment of movable properties was also issued. Relevant portion of the order dated 4.3.96 reads thus :- "Mr. Kajal Kumar Halder, learned Advocate be appointed as Receiver for making inventory of the assets of the certificate debtors at factory premises 1, Goragacha Read, Calcutta and also at the addresses of all the certificate debtors as mentioned in the certificate and taking possession of the attachable assets, A remuneration of Rs.1001/- be fixed to the Learned Receiver to be paid by the certificate holder bank at the first instance to be added to their claims." 7. Subsequently, on 9.4.96 the said Tribunal in the certificate proceeding issued further order allowing Receiver to break open the locked door of the premises of the said company at Jain Kunj, 1, Goragacha Road, Calcutta and the concerned police authorities were directed to render all assistance. Relevant portion of the order dated 9.4.96 reads thus:- "The learned Receiver is at liberty to break open the locked door of the premises of Eureka Forbes Ltd. at "Jain Kunj", 1, Goragacha Road, Calcutta-43. The Officer-in-Charge of the local police station and D.C. (Port) be directed to render all assistance to the learned Receiver for execution of this order." 8. In pending writ application under Article 226 of the Constitution of India, the said company as well as its Chairman and Directors filed interlocutory application registered as G.A. No. 1229 of 1996 praying stay of the orders dated 4.3.96 and 9.4.96 passed by the said Tribunal as well as stay of the warrant of attachment of movable properties along with other reliefs of injunction and stay of the entire certificate proceedings so far as the said company is concerned. This application came up before Bhagabati Prasad Banerjee, J., (as His Lordship then was) when pending final hearing of the said application, the Court passed the following order on 19.4.96 :- "In the meantime, the Receiver may enter into the godown and make an inventory of the properties but no further steps shall be taken without the leave of this Court. Leave is given to have the petition computerised through the Central Filing Section by Money next i.e. 22.4.96." 9. It is an admitted fact that a writ application under Article 226 of the Constitution of India is pending and further an application for necessary orders, being an interlocutory application in connection with the said writ application, is also pending before this High Court. On 27.8.96, the said Tribunal passed further order directing the Receiver to file inventory report in respect of the properties in other places of the said company and the concerned certificate holder bank as well as the concerned police station were directed to render all assistance to the said Receiver. Challenging this order dated 27.8.96, the said company along with its Chairman and other directors have moved this application under Article 227 of the Constitution of India. The relevant portion of the impugned order reads thus:- "Learned Receiver also submits that necessary direction be issued for making inventory of the properties at the other places and taking other steps. In view of the submission and position clarified by the learned Lawyer Mr. Roy Chowdhury of the certificate holder Bank on 13.8.1996 in regard to the order passed by the Hon'ble High Court. Learned Receiver can proceed on for making inventory and taking other steps. He is directed to file the inventory report on the properties at other places, on 8.10.96. Certificate holder Bank is directed to render all assistance to the learned Receiver to make inventory and take necessary steps for filing his report in this respect. Officer-in-Charge of the concerned Police Station be directed to assist the learned Receiver, if necessary to execute this order." 10. Learned Advocate for the petitioners has submitted that the impugned order dated 27.8.96 is in violation of the order of this High Court dated 19.4.96 passed by Bhagabati Prasad Banerjee, J., in the writ application as pending in this Court. Officer-in-Charge of the concerned Police Station be directed to assist the learned Receiver, if necessary to execute this order." 10. Learned Advocate for the petitioners has submitted that the impugned order dated 27.8.96 is in violation of the order of this High Court dated 19.4.96 passed by Bhagabati Prasad Banerjee, J., in the writ application as pending in this Court. It is contended that the learned Tribunal below has exceeded its jurisdiction by directing the Receiver to make inventories of other properties when this High Court restricted activity of the Receiver only in respect of godown of the said company at Goragacha Road, Calcutta. It has been further contended that order of Satyabrata Sinha, J., (as His Lordship then was), passed in the pending writ application whereby execution proceeding was allowed to be proceeded with, with only rider that no final order shall be passed without leave of the Court, practically was modified by Bhagabati Prasad Banerjee, J., restricting or limiting such execution proceeding by the said Tribunal only in respect of the godown of the said company and not for other properties. However, the sum and substance of the argument of the learned Advocate of the petitioners is that this Court has the jurisdiction to entertain this application under Article 227 of the Constitution of India since the impugned order is in violation of the order of this High Court as passed in the writ application as interlocutory order, irrespective of the fact that the writ application itself is pending before this Court. It has been further submitted applying the doctrine of nullity of order if passed in violation of Court's order, that the impugned order itself is a nullity and/or without jurisdiction. It has been further contended that this Court exercising the power not only as a revisional Court but also the power of superintendence while sitting in the jurisdiction under Article 227 of the Constitution of India. So far as the contention that any order in violation of Court's order is a nullity, several judgments have been placed before this Court. So far as jurisdiction and scope of High Court under Article 227 of the Constitution of India, reference has been made to the judgments in the cases of Abanindra Kumar Maity v. A.K. Biswas reported in AIR 1954 Calcutta 355 (a judgment of Division Bench of this Court), East India Commercial Co. So far as jurisdiction and scope of High Court under Article 227 of the Constitution of India, reference has been made to the judgments in the cases of Abanindra Kumar Maity v. A.K. Biswas reported in AIR 1954 Calcutta 355 (a judgment of Division Bench of this Court), East India Commercial Co. Ltd. v. Collector of Customs, reported in AIR 1962 SC 1893 , Trimbak Gangadhar Telang v. Ram Chandra Ganesh Bhide reported in AIR 1977 SC 1222 and Harilal Shaw v. State of W.B. reported in 1983(1) CHN 159 . 11. Learned Advocate for the opposite party bank has opposed this application by contending that this application is not maintainable without placing any authority to that effect. It has been contended by the learned Advocate 'for the opposite party that the impugned order since is an appealable order under Section 30 of the said Act, this application under Article 227 of the Constitution of India is not maintainable as there is an alternative forum. 12. Having heard the learned Advocates of the parties this Court thinks that only point which is required to be considered in this application is whether this application under Article 227 of the Constitution of India is maintainable assailing an order of any Court or Tribunal subordinate to this High. Court who has infringed and/or violated the interlocutory order of this Court passed in a writ proceeding under Article 226 of the Constitution of India when such writ application and interlocutory application both are pending. Prima facie from the factual matrix of this case, it appears that this proceeding under Article 227 of the Constitution of India is nothing but a parallel proceeding while another writ application is pending in this Court. In the writ application as moved by the present petitioners relief as claimed relates to non-liability of the said company in respect of the judgment and decree passed by the said Tribunal. In the said writ application, the petitioners have challenged the vires of the said Act and also the jurisdiction of the Tribunal to fix up the liability against the petitioner though the petitioner company never was a loanee nor a guarantor in respect of the loan amount, being the financial transaction of the bank, which ultimately culminated to a certificate proceeding by the judgment and decree by the Tribunal below. In the writ application, Satyabrata Sinha, J., (as His Lordship then was) allowed the proceeding of execution pase but restricted the passing of any final order without the leave of the Court. The language used in the order dated 3.11.95 was "leave of this Court", which clearly means that the leave of the writ Court exercising the jurisdiction under Article 226 of the Constitution of India. Hence the entire execution proceeding became the subject matter of the pending writ proceeding in terms of the prayer of the party as well as the interim order dated 3.11.95 passed by Satyabrata Sinha, J. The petitioners herein filed an interlocutory application assailing, the orders dated 4.3.96 and 9.4.96 passed by the said Tribunal in the certificate proceeding whereby the Receiver was appointed to make inventory of the assets and to take possession of the attachable assets of the said company and also necessary direction was passed to the Receiver to break open the locked door of the premises of the said company with police assistance. In the said interlocutory application G.A. No. 1229 of 1996 in the pending writ application, the following prayers were made :- "a) stay of operation of certificate No. 48 of 1995 dated 30th June, 1995 in so far as it concerns the petitioner No. 1. b) stay of operation of orders dated 4th March, 1996 and 8th April, 1996. c) stay of the Warrant of Attachment of the moveable properties issued by the learned Presiding Officer under Section 25 of the Recovery of Debts Due to Bank & Financial Institution Act, 1993. d) Injunction restraining the respondents from taking any steps or any further steps in terms of orders dated 4th March, 1996 9th April, 1996 and the Warrant of Attachment of moveable properties. e) Ad-interim orders in terms of prayers above." 13. Bhagabati Prasad Banerjee, J., on hearing such interlocutory application passed an interim order by using the words "in the meantime" that the Receiver would enter the godown and would make inventory of the properties with a rider that no further steps should be taken without the leave of the Court. The interlocutory application was directed to be listed on 23.4.96. It is submitted by the learned Advocate for the petitioners that such interlocutory application is still pending for adjudication. The interlocutory application was directed to be listed on 23.4.96. It is submitted by the learned Advocate for the petitioners that such interlocutory application is still pending for adjudication. Even by the order dated 19.4.96, Bhagabati Prasad Banerjee, J., used the words "without the leave of this Court," which clearly means that without the leave of the High Court of Calcutta adjudicating the writ application under Article 226 of the Constitution of India as filed by the petitioners. The impugned order which has been attached on the ground of violation of the order of Bhagabati Prasad Banerjee, J., passed in the pending writ application as well as in the interlocutory application in connection with a proceeding under Article 226 of the Constitution of India could have been as filed by a proper application under the Contempt of Courts Act, and/or by filing other appropriate applications in the pending writ application. Without doing such the petitioners moved this matter in the jurisdiction under Article 227 of the Constitution of India without even taking steps further for disposal of their pending interlocutory application in which Bhagabait Prasad Banerjee, J., passed the aforesaid order. In view of the very nature of this case, it appears that while a particular issue about the maintainability of the execution proceeding before the said Tribunal is sub-judice in a proceeding under Article 226 of the Constitution of India and for violation of the interim order passed in the said proceeding, this application under Article 227 of the Constitution of India has been filed. In my view, the present application under Article 227 of the Constitution of India is very well attracted by the doctrine of parallel proceeding and accordingly it is not maintainable. The judgments as referred to by the learned Advocate for the petitioners about the scope and jurisdiction of Article 227 of the Constitution of India, there is no dispute by this Court on that principle. However, it is noticed by this Court that in the aforesaid judgments as referred to, the Court was concerned to exercise jurisdiction under Article 227 of the Constitution of India wherein there was certain alternative remedies either before the Tribunal or before the subordinate Courts or other jurisdiction but not before the constitutional jurisdiction wherein any matter is pending on the same subject matter and/or issue. No authority has been placed before this Court that in violation of any order passed in a writ proceeding under Article 226 of the Constitution of India, application under Article 227 of the Constitution of India is maintainable irrespective of pendency of the writ application in the High Court. In my view, no authority is necessary for this simple question and this can be solved by applying the doctrine of parallel proceeding itself. This proceeding under Article 227 of the Constitution of India is nothing but an abuse of the process of law and it is against the public policy. Doctrine of parallel proceeding is an outcome of public policy itself. Once the petitioners have approached this Court under Article 226 of the Constitution of India and the Court directed proceeding of execution case subject to certain limitations, even if for any violation either slight or major by the concerned Tribunal with reference to the interlocutory order passed in the writ jurisdiction by this Court, appropriate remedy open to the petitioners is to approach the writ Court in the pending matter as well as in the pending interlocutory application. When those are pending, the petitioners had no scope to open another forum of constitutional jurisdiction under Article 227 of the Constitution of India. Alternative forum herein is also a constitutional jurisdiction under Article 226 of the Constitution of India. The petitioners' writ application on the point of vires of the said Act is now under a settled point by the judgment of the Apex Court, holding, inter alia, that the Tribunal has the jurisdiction to decide financial matters as has been empowered by the said Act to decide. Having regard to such factual matter and relying upon the principle of law on "parallel proceeding," this application accordingly stands dismissed as not maintainable. All interim orders stand vacated. However, there will be no order as to cost. Urgent xerox certified copy of the order, if applied for, be supplied expeditiously.