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Gujarat High Court · body

2009 DIGILAW 664 (GUJ)

RUPAM RAJIV MARDIA v. ICICI BANK LTD & 2

2009-10-09

ANANT S.DAVE

body2009
JUDGMENT 1. The petitioner has filed this petition under Article 226 of the Constitution of India with the following prayers :- (b) This Hon'ble Court be pleased to issue a writ of prohibition restraining the DRT from exercising jurisdiction in respect of the properties of the petitioner by adjudicating application Exh.22 (Annexure-D to this petition) in Original Application No.977/08 and granting reliefs as prayed for therein or otherwise; (c) This Hon'ble Court be pleased to issue a writ of certiorari and/or any appropriate writ, order or direction quashing and setting aside the order passed by the DRT, Mumbai dated 18.6.2003 (Annexure-G to this petition) and order of the DRAT, Mumbai dated 27.9.05 (Annexure-H to this petition) (d) Pending admission, hearing and/or final disposal of this petition, the Hon'ble Court be pleased to stay the implementation and operation of the oder passed by the DRT, Mumbai dated 18.6.2003 (Annexure-G) to this petition) and order of the DRAT, Mumbai dated 27.9.05 (Annexure H to this petition); (e) Pending admission, hearing and/or final disposal of this petition, the Hon'ble Court be pleased to restrain the DRT, Mumbai from proceeding further with Original Application No.977/99 and/or Exh.22 in so far as it concerns the petitioners and the properties of the petition. 2. The facts giving rise to the present petition are stated as under. 1. The respondent No.1 herein has filed O.A. No.977/98 for recovery of outstanding dues against three defendants / guarantors before the Debts Recovery Tribunal, Mumbai, in July, 1999. The husband of the petitioner herein is defendant No.3 in the above recovery proceedings and the petitioner is not a party in the above Original Application. The defendants are sued in the above O.A. in their personal and individual capacity as guarantors having guaranteed re-payment of sums due and payable to the plaintiffs-respondent No.1 by the said company together with interest and other charges in respect of (a) foreign currency loan of US$ 11,744,378; (b) foreign currency loan of US$ 1,448,017; (c) foreign currency loan of US$ 6,121,983; and foreign currency loan of US$ 9,300,300. 2. 2. During the pendency of the above O.A., an Application Exh.13 was filed for interim injunction against three defendants of O.A., including the husband of the petitioner and two bungalows were included in the Schedule of properties, and prayer was made for issuance of direction to furnish adequate security for the amount sought to be recovered by the bank and or for attachment of those properties. In the above interim application also, petitioner herein was not joined as a party. Therefore, it was prayed that properties listed in Schedule A to the said Application be attached. That the DRT, Mumbai, passed an order below Exh.13 on 01.11.2002 by which the above Application was allowed and the property shown in Exh.A to the Application Exh.13 was ordered to be attached till the decision of the suit and if within 15 days the defendants furnish security of Rs.270 crores, no attachment should be carried out. 3. Being aggrieved by the above order, one of the defendants preferred Misc. Appeal No.443 of 2002 before the Debts Recovery Appellate Tribunal, Mumbai on the ground that properties in question never belong to the husband of the petitioner, but in fact belong to his wife-petitioner herein. At the same time, another Application Exh.22 was filed by the Bank against three original defendants as well as two other persons viz. Prem R. Maradia and Rupamben Rajiv Maradia, joining them for the first time as respondents with a prayer that properties described in Exh.D be declared as fraudulent transfer and `Benami' transaction and as the same are voidable, the same be set aside with a further prayer to direct the defendants to restrain from alienating, encumbering or disposing of in any manner the above property to third party. In the meanwhile, Misc. Appeal No.443/02 which was preferred by the defendant against the order dated 01.11.2002 passed below Ex.13 came to be decided by the DRAT, Mumbai on 06.05.2003 with a direction to the learned Presiding Officer of DRT-III, Mumbai to decide Application Exh.13 afresh in accordance with law after considering relevant affidavits along with its annexures and further directed to continue status quo granted by the Appellate Tribunal till 19.06.2003. 4. 4. Thus, interim applications Exhs.13 and 22 in O.A. No.977/99 were heard together and learned Presiding Officer of DRT-III passed an interim order on 18.06.2003 by rejecting prayer for attachment of the property before judgment and respondents were restrained from dealing in any manner whatsoever or create charge over the properties, which were initially owned by the defendant No.1 and defendant No.3 including Prem Rasiklal Maradia and Smt.Rupamben Rajiv Maradia, who is the petitioner before this court till the decision of the suit. 5. Against the above order dated 18.06.2003 passed by learned Presiding Officer of DRT-III, Mumbai Misc. Appeal No.256/03 was preferred by ICICI Bank ? original applicant and Misc. Appeal No.312 and 313 of 2003 were preferred by Prem R. Maradia and by the petitioner herein respectively. After hearing learned counsel for the parties, learned Chairperson of DRAT, Mumbai disposed of all the above Misc. Appeals vide order dated 27.09.2005 5. 6. Therefore, being aggrieved by the dismissal of Misc. Appeal Nos.312 and 313 of 2003, respondent No.2 of Exh.22 preferred this petition under Article 226 of the Constitution of India with a prayer to issue a writ of prohibition restraining the DRT from exercising jurisdiction in respect of the properties of the petitioner by adjudicating application Exh.22 in O.A. No.977 of 1999 by raising various grounds. 7. Vide order dated 21.10.2005, while granting leave to amend as prayed in the draft amendment dated 21.10.2005, this Court issued notice making it returnable on 17.11.2005 and in the meantime impugned order of DRT was made ineffective in respect of the properties situated at 9-A, Gulmohar Bungalows, Satellite Road, Ahmedabad. On 09.12.2005 at the request of learned counsel for the respondent No.1 time was granted to file affidavit. On 29.12.2005 a detailed order was passed in respect of the property being 9-A, Gulmohar Bungalows, Satellite Road, Ahmedabad, which was sold by the petitioner on 16.07.2005. Order dated 29.12.2005 reads as under :- ORAL ORDER Date : 29/12/2005 1. Shri Mihir Joshi, learned Senior Advocate with Shri R.S.Sanjanwala, learned advocate appearing on behalf of the respondent No.1 has submitted that earlier there was injunction issued by the Debt Recovery Tribunal (hereinafter referred to as the DRT for short), by which, there was injunction with regard to selling the property in question which came to be challenged by the petitioner by way of Misc. Appeal No.313 of 2003 before the DRT Appellate Tribunal, Mumbai. It is the contention on behalf of the respondent No.1 that though the appeal was preferred in the year 2003, application for stay suspending the order of injunction came to be granted by the Tribunal on 5.4.2005 and taking such benefit, meaning thereby, taking benefit of suspending of the order of injunction granted by the Tribunal, the petitioner has sold the property i.e. Bungalow (known as Bungalow No.9-A of Gulmohar of Vejalpur) on 16.7.2005. He has also further submitted that in fact, stay granted by the DRT Appellate Tribunal was till next date of hearing on 21.6.2005 only and there was no further extension by the Appellate Tribunal after 21.6.2005, meaning thereby, according to him, injunction granted by the DRT was in operation after 21.6.2005. In spite of that, the petitioner has sold the property bungalow on 16.7.2005. Shri Mihir Joshi, learned senior advocate has submitted that the aforesaid statement with regard to non extension of the stay order granted by the DRT Appellate Tribunal after 21.6.2005 is based upon the document available with the petitioner which he has produced today and the same is directed to be taken on record. He has also further submitted that in view of the above, now if there will be further transfer of the property in question bungalow, it will not be possible for the respondent No.1 bank to get any amount and there will be further multiplicity of proceedings. Therefore, it is requested that even the subsequent purchaser be restrained from dealing further with the property in question till next date of hearing. 2. The aforesaid submission is opposed by Shri S.N.Soparkar, learned Senior Advocate on behalf of the petitioner. However, he is not sure with regard to the fact whether the stay order by the Appellate Tribunal was further extended after 21.6.2005 or not. He however states that as such, he has no instruction at present and he has to verify the same. The aforesaid submission is opposed by Shri S.N.Soparkar, learned Senior Advocate on behalf of the petitioner. However, he is not sure with regard to the fact whether the stay order by the Appellate Tribunal was further extended after 21.6.2005 or not. He however states that as such, he has no instruction at present and he has to verify the same. However, at the instance of the Court, Shri Soparkar has furnished name of the subsequent purchaser i.e. Navratana S.G.Highway Properties Private Ltd., having its registered office at Basement, Ashokwadi Apartment, Panchvati, Ellisbridge, Ahmedabad 380 006 and according to the petitioner, the petitioner has sold the said property bungalow in question to Navratna S.G.Highway Properties Pvt. Ltd. In view of the fact that today being the last working day before ensuing Christmas Vacation and the matter is heard at 4.30 P.M and this Court is not in position to hear and decide the present Special Civil Application on merits due to paucity of time, and considering the stake involved and the contentions and submissions on behalf of the respondent No.1 Bank and with a view to avoid any further complication and multiplicity of proceedings, the subsequent purchaser is required to be joined as the party respondent and is required to be restrained from further dealing with the property bungalow in question. This Court is aware of the fact that the third party which has purchased the property in question is not before this Court. However, considering the aforesaid facts and circumstances of the case and to avoid any further complication and multiplicity of the proceedings, and even considering the principle of lis pendent and till the matter is decided on merits on the next date of hearing, the newly added party respondent subsequent purchaser is to be restrained from further dealing with the property in question bungalow in question which he had purchased on 16.7.05 from the petitioner. 3. Hence, Navratana S.G.Highway Properties Private Ltd., having its registered office at Basement, Ashokwadi Apartment, Panchvati, Ellisbridge, Ahmedabad 380 006 is directed to be joined as the party respondent No.3 to the present Special Civil Application and the respondent No.3 is restrained from further dealing with the property in question bungalow in question which is purchased from the petitioner by the registered sale deed on 16.7.2005 till 9th January, 2006. 4. 4. Necessary amendment in the cause title to be carried out in the main Special Civil Application forthwith. S.O. to 9th January, 2006. Office is directed to give direct service of this order to the respondent No.1. 8. On 20.01.2006, upon willingness shown on the part of learned counsel appearing for the petitioner, Rs.91 lacs was ordered to be deposited in the Court without prejudice to the rights and contentions of the parties. 9. On 25.01.2006 Office was directed to accept two fixed deposits for amounts of Rs.55,01,000/- and Rs.36,00,000/-respectively. By order dated 04.02.2006 respondent No.3 came to be deleted. By order dated 04.02.2006, sixth line of para 1 of order dated 31.01.2006 came to be corrected and amount of Rs.91,01,000/-was ordered to be read as Rs.90,94,680/-. 3. 10. By a communication dated 04.01.2006 addressed by Advocates, Solicitors and Notary of Mumbai to learned advocates appearing for respondent Bank herein, it was stated that DRAT, Mumbai, granted stay on 24.03.2005 against the impugned order dated 21.03.2005 till next date i.e. 21.06.2005 and on 21.06.2005 DRAT, Mumbai adjourned all the matters for final hearing to 29.08.2005 and nothing was recorded about extension of the stay of the impugned order dated 21.03.2005 passed by DRT-III, Mumbai. Subsequently, on 27.09.2005 all three Misc. Appeals were decided by common order by DRAT, Mumbai and Rojkam dated 21.06.2005 reveals about not recording extension of injunction by learned Chairperson, DRAT, Mumbai. 11. On 26.04.2006, Rule was issued by this Court making it returnable on 19.07.2006 and subsequently by order dated 21.02.2007 this matter was fixed for final hearing on 28.03.2007 and thereafter adjourned from time to time and listed for final hearing before this Court. 3. 11. On 26.04.2006, Rule was issued by this Court making it returnable on 19.07.2006 and subsequently by order dated 21.02.2007 this matter was fixed for final hearing on 28.03.2007 and thereafter adjourned from time to time and listed for final hearing before this Court. 3. Mr.S.N.Soparkar, learned Senior Advocate appearing with Mr.R.S.Sanjanwala, learned counsel for the petitioner, has raised manifold contentions and submitted that the petitioner herein was neither joined as party in O.A. No.977/99 nor in the Exh.13 filed by the respondent Bank, but for the first time petitioner was joined as respondent nos.1 and 2 in addition to three original defendants, and therefore, when the petitioner was not a party any prayer against her was not permissible and grant of relief by DRT, Mumbai, which was confirmed by DRAT, Mumbai whereby petitioner herein is restrained from alienating / transferring / disposing / creating any charge over the title of the property in any manner whatsoever till disposal of the suit is absolutely illegal and without jurisdiction. Next it is contended that the property in question viz. 9-A, Gulmohar Bungalows, Satellite Road, Ahmedabad was purchased by the petitioner in the year 1987, much prior to any kind of mortgage deed or availing loan by the original defendant or company, and therefore property which was not subject matter of guarantee or any transaction with the respondent No.1 Bank, the injunction of the DRT, Mumbai to deal with such property in any manner whatsoever is absolutely without jurisdiction and contrary to law and therefore, writ of prohibition be issued. 4. That second property enlisted at Exh.D, 34, Basant Bahar Bungalow, Nr. Sterling Club, Bopal, Ahmedabad is also a property, which is not the subject matter of mortgage and no guarantee was given and considering the sale deed between the parties, none of the original defendants had any right or title over the property and consideration was exclusively paid by the petitioner. According to learned Senior Counsel the Tribunal has erred in passing the order with regard to second property also enlisted at Exh.D. 5. Under section 29 of The Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short the Act, 1993), certain provisions of Income Tax Act viz. According to learned Senior Counsel the Tribunal has erred in passing the order with regard to second property also enlisted at Exh.D. 5. Under section 29 of The Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short the Act, 1993), certain provisions of Income Tax Act viz. Second and Third Schedules to the Income tax Act, 1961 and the Income tax (Certificate Proceedings) Rules, 1962, as applicable from time to time with necessary modifications when assessee shall be construed as reference to defendant under this Act, the proceedings of DRT is to be conducted within the framework of the said Act. Learned Senior Counsel relying on the decision of the Apex Court in the case of Tax Recovery Officer II, Sadar, Nagpur v. Gangadhar Vishwanath Ranade reported in (1998)6 SCC 658 , submitted that the Tax Recovery Officer cannot himself declare a transfer of property made by the assessee in favour of a third party, to be void and therefore, the Tribunal lacks jurisdiction to decide about any dispute with regard to title, ownership and possession of the properties in question. 6. It is further submitted that directions contained in applications Exh.13 and Exh.22 for declaring the property as `Benami' was beyond the scope of the Tribunal to decide the same in view of specific restriction to enter into dispute of a title and it is submitted that deposit of Rs.90 lacs made before this Court was to show bonafide on the part of the petitioner and disposal of the property was in accordance with law and therefore the amount is to be returned to the petitioner. 7. Mr.Mihir Joshi, learned Senior Counsel appearing with Mr.Sandeep Singhi, learned advocate appearing for the respondent Nos.1 and 2 vehemently opposed and submitted that prayer to issue writ of prohibition to the petitioner is against the interlocutory order and outcome of Original Application No.977/99, which is yet to be dealt with and decided by the Tribunal and this petition is virtually under Article 227 of the Constitution of India and there being no error of law much less jurisdictional error, no interference is called for by this Court, at this stage. It is next contended that Section 17, Chapter-III of the Act, 1993, confers jurisdiction, power and authority on the Tribunal to entertain and decide applications from Banks and Financial Institutions for recovery of dues due to such banks and financial institutions and interim applications were part of recovery of O.A. No.977/99 and the properties enlisted at Exh.A and Exh.D were included in the Annexure of the above Applications to protect financial interest of the applicant Bank since huge amount was due from the defendants who are relatives of petitioner herein, and a detailed inquiry on the basis of verification of the documents, deposition etc. is yet to be gone into. 8. According to Mr.Joshi, learned Senior Advocate appearing for respondent No.1, the issue about recovery of dues vis-a-vis properties of defendants mortgaged with the Bank and of respondents shown at Exh.A & D are integrally and intrinsically linked up and at the stage of interim order, no particular findings can be given unless the nature of the property, mode of acquisition, mode of payment and recital of conveyance executed between the parties are to be gone into by the competent authority. 9. It is further submitted that Section 18 of the Act, 1993 specifically bars jurisdiction of any civil court in relation to matters specified in Section 17 and, therefore, DRT having absolute jurisdiction can go into the inquiry pertaining to title, ownership, etc. of the property in question. 10. It is further submitted that the petitioner herein was joined as a respondent in Exh.22 since she happens to be the wife of defendant No.3 and after hearing all the parties, DRT as well as appellate Tribunal have passed orders and concurrently gave findings of facts which do not deserve any interference by this Court. 11. It is further submitted that the contention raised by learned counsel for the petitioner about the applicability of Schedule 2 and 3 of Income Tax Act, 1961 at the most may apply at the stage of recovery, and therefore, a preliminary findings based on well known principles of prima facie case, balance of convenience, irreparable loss, etc. the Tribunals have protected the interest of the Bank, and therefore, no interference is called for by this Court. the Tribunals have protected the interest of the Bank, and therefore, no interference is called for by this Court. Learned counsel for the respondent has relied upon decision of the Apex Court in the case of Allahabad Bank v. Canara Bank [ AIR 2000 SC 1535 ] and submitted that jurisdiction of the Tribunal is exclusive and as per decision reported in case of Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [ (2004)3 SCC 584 ] the Apex Court remanded the case to DRT to ascertain whether appellant of that case had any independent source of income and whether they had contributed for purchase of the property from their own income and to decide whether the property was the residence of the appellants at the time of possession or not, by permitting the parties to lead evidence, oral as well as documentary and therefore, such detailed inquiry is permitted and thus the Tribunal is competent enough under Section 17 to deal with the subject matter. 12. Having heard learned counsel for the parties and on perusal of the record of the case, one of the main challenges in this petition is exercise of jurisdiction by the DRT, Mumbai in respect of properties of the petitioner by adjudicating application Exh.22 in Original Application No.977 of 1998 and granting relief prayed therein and also order dated 18.06.2003 passed by DRT, Mumbai and order dated 27.09.2005 by the DRAT, Mumbai in appeal proceedings. For adjudication of the issues involved in this petition, a perusal of the scheme of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is necessary. 12. 1) Before the Scheme of the Act, 1993 could be examined, principles for issuance of writ of prohibition laid down by the Apex Court in the case of Govinda Menon v. Union of India [AIR 1967 SCA 1274] are required to be kept in mind. In para 5 of the said judgment the Apex Court held as under :- 5. The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. It is well-settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice (See Halsbury's Laws of England, 3rd Edn., Vol. II, p. 114). It was held for instance by the Court of Appeal in The King v. North, 1927-1 KB 491, that as the order of the Judge of the consistory Court of July 24, 1925 was made without giving the vicar an opportunity of being heard in his defence, the order was made in violation of the principles of natural justice and was, therefore, an order made without jurisdiction and the writ of prohibition ought to issue. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of proceedings. It is also well-established that a writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its jurisdiction (See Regina v. Comptroller-General of Patents and Design, 1953-2 WLR 760 at p. 765, and Parisienne Basket Shoes Proprietary Ltd. v. Whyte, 59 CLR 369). A clear distinction must, therefore, be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coram non Judice and a writ of prohibition will lie to the court or inferior tribunal forbidding it to continue, proceedings therein in excess of its jurisdiction?. 3. The Act, 1993 provides for the establishment of Tribunals for expeditious adjudication and recovery of dues due to banks and financial institutions and for matters connected therewith or incidental thereto. Chapter-I is pertaining to definitions, Chapter-II is with regard to establishment of Tribunals and Appellate Tribunals and Chapter-III is with regard to jurisdiction, powers and authority of tribunals. Section 17 reads as under :- "Section 17 : Jurisdiction, powers and authority of Tribunals- (1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. Section 17 reads as under :- "Section 17 : Jurisdiction, powers and authority of Tribunals- (1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. (2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act. 3. Section 18 bars jurisdiction of any Court in relation to matters specified in Section 17, except the Hon'ble Supreme Court and High Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India. 4. Chapter-IV prescribes an elaborate procedure of Tribunal and Section 19 empowers a bank or financial institution to recover any debt from any person by making application to the Tribunal. Sub-section (25) of Section 19 specifically confers powers upon the tribunal to make such orders and give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice. Thus, the width and amplitude of the jurisdiction of the Tribunal is very wide. Section 20 provides appeal to the Appellate Tribunal as per procedure prescribed and section 22 lays down procedure and power of the Tribunal and the Appellate Tribunal to decide application / appeals without binding the tribunal to follow procedure laid down by the Code of Civil Procedure, 1908, but to be guided by principles of natural justice and subject to other provisions of the Act and Rules. Chapter-V is about recovery of debt determined by Tribunal and section 25 prescribes modes of recovery of debts and section 28 further provides other modes of recovery and section 34 gives over-riding effect over other acts. But, so far as jurisdiction of the Tribunal is concerned, the Apex Court in the case of Allahabad Bank v. Canara Bank [ AIR 2000 SC 1535 ] in paras 19, 20, 21, 22, 23, 24 and 25 held as under :- 19. The initial question is as to the jurisdiction of the Tribunal under Sections 17 and 18 of the RDB Act in the matter passing the order of adjudication and to what extent it is exclusive. The initial question is as to the jurisdiction of the Tribunal under Sections 17 and 18 of the RDB Act in the matter passing the order of adjudication and to what extent it is exclusive. The next question will be whether the jurisdiction of the Recovery Officer is also exclusive for purposes of execution of the adjudication order passed by the Tribunal. (i) adjudication by Tribunal : Does the Tribunal have exclusive jurisdiction ? 20. We shall refer to Sections 17 and 18 in Chapter III of the RDB Act which deal with adjudication of the debt. "Section 17 : Jurisdiction, powers and authority of Tribunals- (1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. (2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act. Section 18 : Bar of Jurisdiction - On and from the appointed day, no Court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Article 226 and 227 of the Constitution) in relation to the matters specified in Section 17." It is clear from Section 17 of the Act that the Tribunal is to decide the applications of the Banks and Financial Institutions for recovery of debts due to them. We have already referred to the definition of 'debt' in Section 2(g) as amended by Ordinance 1/2000. It includes "claims" by Banks and financial institutions and includes the liability incurred and also liability under a decree or otherwise. In this context Section 31 of the Act is also relevant. That section deals with transfer of pending suits or proceedings to the Tribunal. In our view, the word 'proceedings' in Section 31 includes as 'execution proceedings' pending before a Civil Court before the commencement of the Act. The suits and proceedings so pending on the date of the Act stand transferred to the Tribunal and have to be disposed of "in the same manner" as applications under Section 19. 21. In our opinion, the jurisdiction of the Tribunal in regard to adjudication is exclusive. The suits and proceedings so pending on the date of the Act stand transferred to the Tribunal and have to be disposed of "in the same manner" as applications under Section 19. 21. In our opinion, the jurisdiction of the Tribunal in regard to adjudication is exclusive. The RDB Act requires the Tribunal alone to decide applications for recovery of debts due to Banks or financial institutions. Once the Tribunal passes an order that the debt is due, the Tribunal has to issue a certificate under Section 19(22) (formerly under section 19(7)) to the Recovery Officer for recovery of the debt specified in the certificate. The question arises as to the meaning of the word 'recovery' in Section 17 of the Act. It appears to us that basically the Tribunal is to adjudicate the liability of the defendant and then it has to issue a certificate under Section 19(22). Under Section 18, the jurisdiction of any other Court or authority which would otherwise have had jurisdiction but for the provisions of the Act, is ousted and the power to adjudicate upon the liability is exclusively vested in the Tribunal. (This exclusion does not however apply to the jurisdiction of the Supreme Court or of a High Court exercising power under Article 226 or 227 of the Constitution). This is the effect of Sections 17 and 18 of the Act. 22. We hold that the provisions of Sections 17 and 18 of the RDB Act are exclusive so far as the question of adjudication of the liability of the defendant to the appellant Bank is concerned. (ii) execution of Certificate by Recovery Officer : Is his jurisdiction exclusive 23. Even in regard to 'execution', the jurisdiction of the Recovery Officer is exclusive. Now a procedure has been laid down in the Act for recovery of the debt as per the certificate issued by the Tribunal and this procedure is contained in Chapter V of the Act and is covered by Sections 25 to 30. It is not the intendment of the Act that while the basic liability of the defendant is to be decided by the Tribunal under Section 17, the Banks/Financial institutions should go to the Civil Court or the Company Court or some other authority outside the Act for the actual realisation of the amount. It is not the intendment of the Act that while the basic liability of the defendant is to be decided by the Tribunal under Section 17, the Banks/Financial institutions should go to the Civil Court or the Company Court or some other authority outside the Act for the actual realisation of the amount. The certificates granted under Section 19(22) has, in our opinion, to be executed only by the Recovery Officer. No dual jurisdictions at different stages are contemplated. Further, section 34 of the Act gives overriding effect to the provisions of the RDB Act. That section reads as follows : "Section 34(1) : Act to have overriding effect - (1) Save as otherwise provided in sub-section (2), the provisions of this Act shall effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. (2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State FinancialCorporations Act, 1951 (63 of 1951), the Unit Trust of India Act, 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984) and the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986)." The provisions of section 34(1) clearly state that the RDB Act overrides other laws to the extent of 'insonsistency'. In our opinion, the prescription of an exclusive Tribunal both for adjudication and execution is a procedure clearly inconsistent with realisation of these debts in any other manner. 24. There is one more reason as to why it must be held that the jurisdiction of the Recovery Officer is exclusive. The Tiwari Committee which recommended the constitution of a Special Tribunal in 1981 for recovery of debts due to Banks and financial institutions stated in its Report that the exclusive jurisdiction of the Tribunal must relate not only in regard to the adjudication of the liability but also in regard to the execution proceedings. It stated in Annexure XI of its Report that all "execution proceedings" must be taken up only by the Special Tribunal under the Act. It stated in Annexure XI of its Report that all "execution proceedings" must be taken up only by the Special Tribunal under the Act. In our opinion, in view of the special procedure for recovery prescribed in Chapter V of the Act, and section 34, execution of the certificate is also within the exclusive jurisdiction of the Recovery Officer. 25. Thus, the adjudication of liability and the recovery of the amount by execution of the certificate are respectively within the exclusive jurisdiction of the Tribunal and the Recovery Officer and no other Court or authority much less the Civil Court or the Company Court can go into the said questions relating to the liability and the recovery except as provided in the Act. Point 1 is decided accordingly. Points 2 and 3 : Does the Act override the provisions of Sections 442 and 537 and Section 446 of the Company Act? 16. Further the vires of the Act came to be upheld by the Apex Court in the case of Union of India v. Delhi High Court Bar Association [ AIR 2002 SC 1479 ] and repelling various contentions on behalf of the respondent who succeeded before the Delhi high Court in appeal filed by Union of India after considering the scheme of the Act in para 31, the Apex Court held that; The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is a valid piece of legislation. As a result thereof, the writ petitions or appeals filed by various parties challenging the validity of the said Act or some of the provisions thereof, are dismissed. It would be open to the parties to raise other contentions on the merits of their cases before the authority constituted under the Act and, only thereafter, should a High Court entertain a petition under Article 226 and/or Art. 227 of the Constitution. Transferred cases stand disposed of accordingly. Parties to bear their own costs?. 17. That the case of Allahabad Bank (supra) was again referred in a recent decision in the case of Central Bank of India v. State of Kerala [2009)4 SCC 94] and in paras 141 and 142, it was held that the powers of the Tribunal to adjudicate upon the liability is exclusively vested in the Tribunal. 18. 17. That the case of Allahabad Bank (supra) was again referred in a recent decision in the case of Central Bank of India v. State of Kerala [2009)4 SCC 94] and in paras 141 and 142, it was held that the powers of the Tribunal to adjudicate upon the liability is exclusively vested in the Tribunal. 18. Admittedly, this petition under Article 226 and 227 of the Constitution of India is against interlocutory orders passed by the Tribunals viz. DRT as well as DRAT, Mumbai. In para 3 of the Application Exh.13 interim prayer is made for appointment of receiver / commissioner of all the properties of the defendants and pending disposal of final hearing of this application to furnish security for the total sum outstanding in the original application and till such securities in terms of prayer (C) is furnished, it was prayed that warrant be issued for attachment before judgment of the properties of defendant as set out in Exh.D under provisions of the Act, 1993. It also prayed for various other reliefs and requested for grant of interim relief. Exh.22 is also an Application seeking interlocutory orders to implead respondents who were not the original defendants in O.A. No.977 of 1999 and according to the applicants, properties described at Item Nos.2 and 3 of Exh.D actually belonged to and owned by the defendants and therefore it was necessary to restrain them from transferring above properties. Of course, a relief was also prayed to declare the transaction of the above properties as `benami' transaction being voidable and to be set aside. 19. Therefore, DRT-III Mumbai has exercised jurisdiction in the backdrop of the averments made in Application and prayer made therein. It is to be noted that so far as prayer for attachment of the property before judgment is concerned, the above prayer was rejected and restriction is imposed by restraining respondents from dealing with the above properties in any manner whatsoever or to create charge over them till the final outcome of the original application. 20. The Appellate Tribunal (DRAT, Mubmai) also considered the above aspect and held that order of learned Presiding Officer of DRT-III, Mumbai of injuncting respondents from transferring the properties in question was only with a view to protect interest of the Bank till the O.A. is finally decided. 20. The Appellate Tribunal (DRAT, Mubmai) also considered the above aspect and held that order of learned Presiding Officer of DRT-III, Mumbai of injuncting respondents from transferring the properties in question was only with a view to protect interest of the Bank till the O.A. is finally decided. As held by the Apex Court in case of Allahabad Bank (supra) the Tribunal established under the Act, 1993 has exclusive jurisdiction with regard to recovery of debts due to banks or financial institutions and the Tribunals have exclusive power to adjudicate upon the liability. While deciding the recovery application filed under Section 17 of the Act if any incidental or analogous or connected subject matter arises for determination, it is always open for the Tribunal to go into such question at the stage of final hearing and till then if any protective measure is taken by the Tribunal in the interest of banks or financial institutions, it cannot be said that the Tribunal has no jurisdiction. On the contrary, Section 19(25) of the Act, 1993 empowers the Tribunals to pass such order which may be necessary and expedient to prevent abuse of its process or to secure the ends of justice. 21. Even Section 34(1) of the Act has overriding effect and notwithstanding with anything contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act, as there is no final pronouncement or declaration about the property in question being `benami' by the Tribunal, at this stage, it cannot be said that by passing the impugned orders, the Tribunals exercised the jurisdiction not vested in it. Thus, contention in this regard viz. Lack of jurisdiction or exceeding jurisdiction raised by learned counsel for the petitioner fails. 22. In juxtaposition to the above, in the case of Janki Vashdeo Bhojwani (supra), the Apex Court directed the Tribunal to examine whether the appellant had any independent source of income and whether they had contributed for purchase of the property in question from their own income and has also to decide whether the property or the residence to the appellants at the time of possession or not by permitting the parties to led evidence, oral and documentary. Therefore, in the facts of the present case, the stage of leading evidence oral as well as documentary has yet to arrive and before that the Tribunal cannot be restrained from proceeding further in determining the liability of the defendant and respondents towards payment of dues to the Bank. Therefore, when the issue as to whether properties enlisted at Exh.D belonged exclusively to defendants or respondent or if the transaction entered into by the parties was legal, or it has any bearing on the subject matter of the original application, is yet to be considered and till then the only restriction imposed is against the respondents from dealing with the property in any manner whatsoever may be determined at the final stage of the O.A. , in the opinion of this Court, the Tribunal has acted within its jurisdiction and the interim orders impugned in this petition, cannot be said to be in any manner contrary to law and deserves no interference at the hands of this court under Article 226 and 227 of the Constitution of India. 23. That contention raised by learned Senior Counsel for the petitioner about applicability of Schedules 2 and 3 of the Income Tax Act, 1961 and reference thereto in Section 29 of the Act, 1993 is also premature and it may apply only at the stage of recovery when a certificate is granted by the competent officer or the Tribunal and therefore law laid down by the Apex Court in the case of Tax Recovery Officer-II, Sadar, Nagpur (supra) will have no applicability to the facts of this case. 24. That non-joiner of respondent initially in OA No.977 of 1999 or Exh.13 Application is also irrelevant inasmuch as while deciding the Applications together viz. Exh.13 and Exh.22 principles of natural justice was followed by the Tribunals and respondents were heard before passing the interim order. Any irregularity of procedural nature by itself cannot be a reason for this Court to exercise jurisdiction under Article 227 of the Constitution of India. 25. Exh.13 and Exh.22 principles of natural justice was followed by the Tribunals and respondents were heard before passing the interim order. Any irregularity of procedural nature by itself cannot be a reason for this Court to exercise jurisdiction under Article 227 of the Constitution of India. 25. The subject property over which charge was created or a subject matter of mortgage, guarantee or any other transaction with the respondent Bank, is yet to be examined by the DRT-III, Mumbai, and till then, restriction imposed upon the respondent in its inherent and exclusive jurisdiction of adjudicating liability cannot be said to be in any manner illegal and therefore also no case is made out for interference by this Court at this stage in exercise of powers under Article 227 of the Constitution of India. 26. In addition to the above, the conduct of the petitioner herein to dispose of one of the properties viz. Bungalow No.9A, Gulmohar Bungalows, Vejalpur, Satellite, Ahmedabad during the pendency of proceedings also do not inspire any confidence of this Court as it lacks bonafides on the part of the petitioner. That order dated 21.03.2005 passed by DRT-III, Mumbai was stayed by DRAT, Mumbai on 24.03.2005 till next date of hearing i.e. 21.06.2005 and all the matters were adjourned for further hearing on 29.08.2005, and no mention is made about extension of the stay any further. Now, the above property was sold by the petitioner on 16.07.2005 and therefore on that date no stay was operative and especially when the proceedings were pending before the DRAT, Mumbai, still the petitioner disposed of the above property and thus committed breach of order of injunction of DRT-III, Mumbai dated 21.03.2005. So, even equity also is not in favour of the petitioner and amount deposited by petitioner pursuant to the order dated 29.12.2005 as also subsequent order, deserve to be transferred to DRT-III, Mumbai where O.A. No.977 of 1999 is pending. These proceedings for recovery have remained pending since last 10 years, and therefore, it will be just and proper to expect the DRT-III, Mumbai to dispose of O.A. No.977 of 1999 within six months from today. 27. In view of the above discussion, this petition fails and is hereby dismissed with costs of counsel quantified to the tune of Rs.10,000/-. Rule discharged. Interim relief stands vacated forthwith. 28. 27. In view of the above discussion, this petition fails and is hereby dismissed with costs of counsel quantified to the tune of Rs.10,000/-. Rule discharged. Interim relief stands vacated forthwith. 28. At this stage, Mr.S.N.Soparkar, learned Senior Counsel appearing for the petitioner requested to stay this order so as to enable the petitioner to prefer an appeal and further requested that the amount as ordered to be transferred to DRT-III, Mumbai not be appropriated by the respondents herein till final disposal of O.A. 29. Considering the facts and circumstances of the case, request to stay this order is rejected and it is directed that the amount ordered to be transferred to DRT-III, Mumbai shall not be appropriated by the respondents herein till final disposal of O.A.