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2014 DIGILAW 24 (GAU)

KAMAL KUMARI SUBBA v. UNITED BANK OF INDIA

2014-01-08

A.M.SAPRE, UJJAL BHUYAN

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JUDGMENT (A.M.Sapre, C J) Heard Mr. S.P. Roy, learned counsel for the petitioner and Mr. A. Phukan, learned counsel for the respondents. By filing this writ petition under Article 226/227 of the Constitution of India, the petitioner (a borrower) seeks to challenge the final order passed by the Debts Recovery Tribunal (herein after for short called “The Tribunal”) dated 30.7.2013 in Application No. 26 of 2012 (Annexure -30 ) It is not in dispute that the impugned order was passed by the Tribunal under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short hereinafter called “ The Act” ) whereby the application made by the petitioner against the respondent – Bank before the Tribunal under Section 17(1) was dismissed. At the outset, therefore, the question, which arises for consideration in this writ petition is, whether we should entertain this writ petition in exercise of our extra ordinary constitutional powers conferred under Article 226/227 of the Constitution of India to examine the legality and correctness of the impugned order passed by the Tribunal under the Act or leave the petitioner by granting him liberty to file statutory appeal before the Appellate Authority constituted under the Act against the impugned order ? Having heard the learned counsel for the parties and upon perusal of the record of the case, we are of the considered opinion that this is not a fit case for entertaining the writ petition filed by the borrower (petitioner herein) under Article 226/227 of the Constitution of India and instead, we are of the view that the petitioner should be granted liberty to approach and file the statutory appeal under Section 18 of the Act before the Appellate Authority for examining the legality and correctness of the final order which is sought to be impugned in this writ petition by the petitioner. Indeed, it has been the consistent view of the Supreme Court in several cases including the leading case of Mardia Chemicals ( AIR 2004 SC 2371 ), wherein the Supreme Court, while upholding the constitutional validity of the Act, in question, also observed that as far as possible in matters of this nature arising under the Act, writ petitions should not be entertained except in the exceptional cases, where prima facie gross injustice is found to have been caused to the borrower on undisputed facts or/and where action complained of is on the face of it without jurisdiction. It is also held as a general principal of law that where the borrower has an alternative and suitable remedy of an appeal to the appellate authority constituted under the Act to challenge the orders passed by the Tribunal, then, writ petition under Article 226/227 of the Constitution of India should not be entertained by exercising the extra-ordinary powers by the High Court to examine the legality and correctness of the orders of the Tribunal by becoming the appellate authority under the Act and instead, the parties should be relegated to take recourse to filing statutory appeal as provided under the Act to challenge the impugned orders of the Tribunal passed under the Act. Though learned Counsel for the petitioner by citing several decisions, such as, (2013) 2 SCC 582 , AIR 2002 Cal 223 , AIR 2005 Gau 58 , AIR 2005 Gau 66, AIR 2006 SC 1288 , AIR 2003 SC 2122 , AIR 2010 SC 266 , (2013) 2 SCC 574 , AIR 2001 SC 3095 , 2010 AIR SCW 3277, 2013(5) GLT 30,(2012) 10 SCC 271, AIR 2000 SC 2966 and AIR 2006 SC 1288 , vehemently contended that the impugned order of the Tribunal is exfacie and prima facie without jurisdiction and therefore this court should entertain the writ petition under Article 226/227 of the Constitution, but we are afraid we can accept his submissions. In our view, Section 18 of the Act in clear terms provide for filing of appeal to the Appellate Authority against any order passed by the Tribunal under Section 17 ibid. As stated above, the impugned order is an order passed under Section 17 ibid and hence it is admittedly appealable under Section 18 before the Appellate Tribunal. In our view, Section 18 of the Act in clear terms provide for filing of appeal to the Appellate Authority against any order passed by the Tribunal under Section 17 ibid. As stated above, the impugned order is an order passed under Section 17 ibid and hence it is admittedly appealable under Section 18 before the Appellate Tribunal. In such circumstances, we do not find any good ground to deviate from the law laid down by the Supreme Court on this issue and entertain the petition under Article 226/227 of the Constitution of India as contended by the petitioner. In our view, granting liberty to the petitioner to file appeal under Section 18 of the Act would not cause any prejudice to the petitioner because whatever grounds which the petitioner has taken in this petition to challenge the impugned order, the same can be taken in appeal before the Appellate Authority. Indeed, the powers and scope of the Appellate Authority is much wider because the appellate authority would be able to decide all issues arising in the case relating to facts and law and then pass appropriate orders. We have gone through the case laws cited by the learned counsel for the petitioner mentioned above and find that all are distinguishable. In other words, we are not persuaded to entertain the writ petition by placing reliance on the decisions cited at the bar because these decisions, if perused carefully, would only go to show that they lay down general principle of law which may not apply to the fact situation arising in this case. We therefore do not consider it proper to refer to each case. In the light of the foregoing discussion, we decline to entertain the writ petition and instead grant liberty to the petitioner to file appeal under Section 18 of the Act before the concern Appellate Tribunal within two months from the date of this order against the order dated 31.7.2013 passed by the Tribunal in Application No. 26 of 2013. In case, if any such appeal is filed by the petitioner within two months, then the Appellate Authority shall decide the appeal on its merits in accordance with law within six months as an outer limit. In view of the order that we have passed, we do not consider it necessary to examine any issue on merits. In case, if any such appeal is filed by the petitioner within two months, then the Appellate Authority shall decide the appeal on its merits in accordance with law within six months as an outer limit. In view of the order that we have passed, we do not consider it necessary to examine any issue on merits. We also make it clear that we have not applied our mind to the merits of the issues arising in the case and hence the Appellate Authority would decide the appeal, if filed by the petitioner strictly in accordance with law without being influenced by any of our observations on the merits. In this view of the matter, all interim orders passed from time to time are hereby recalled. No cost.