Patna High Court
Jag Narayan Singh And Ors. vs State Bank Of India And Ors. on 2 February, 2001
Equivalent citations: 2001(1)BLJR576
ORDER R.N. Prasad, J.
1. The writ application has been filed for quashing the order dated 17.5.2000 passed by the Presiding Officer, Debts Recovery Tribunal in case No. PT. 42/98 whereby the substitution petition filed by the State Bank of India-plaintiff-respondent No. 1 has been allowed.
2. The State Bank of India initially filed a mortgage suit for recovery of its loan against the defendants-respondents including N.D. Singh. The suit was transferred to the Debts Recovery Tribunal pursuant to provision of Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter to be referred as the Act). The defendants-respondents appeared and were pursuing the matter. On 15.9.1999, the defendants filed a petition that defendant No. 2 N.D. Singh died on 14.1.1999, The plaintiff-Bank filed a substitution petition for substitution of legal heirs of de-eased defendant No. 2 on 16.11.1999 starting that plaintiff had no knowledge of death prior to 15.9.1999. N.D. Singh was residing at different place and the Bank had no knowledge about his death. After coming to know about the death, his Counsel informed the Bank with a request to ascertain the names of his heirs. The Branch Manager after inquiry furnished the name of legal heirs of N.D. Singh and, thereafter, the petition for substitution was filed. A rejoinder to the said petition was filed on behalf of the defendants opposing the prayer for substitution on the ground that it is barred by limitation and no prayer for condoning the delay and setting aside abatement has been made. The Presiding Officer of the Tribunal after hearing the parties passed a reasoned order allowing the substitution petition relying upon a decision in the case of State of Madhya Pradesh v. S.S. Akolkar AIR 1996 S.C. 984 on 17.5.2000 which has been impugned in this writ application.
3. A Counter-affidavit has been filed on behalf of the Bank-plaintiff-respondent raising a preliminary point with regard to maintainability of this writ application and also justifying the order passed by the Tribunal.
4. Since the question of maintainability of the writ application has been raised by the earned Counsel for the plaintiff-respondent, it is necessary to decide the same. Earned Counsel for the petitioners contended that the appeal has been provided against the final order and not against the interlocutory order. The order impugned is preliminary order and as such, the writ is maintainable. Even if it is held that appeal is maintainable against the preliminary order, there is no bar in entertaining the writ petition without exhausting the statutory remedy as it is the only efficacious remedy.
5. To resolve the issue involved in this case, it would be apt to mention herein that the Act is a special law and it has been enacted with an object for expeditious adjudication of the disputes relating to recovery of debts due to Banks and Financial Institutions. To achieve the aforesaid object, provision has been made for establishment of the Tribunal and appellate Tribunal. The jurisdiction, powers and authority of the Tribunals have been enumerated in Section 17 of the Act. For proper appreciation Section 17 of the Act is quoted herein below-
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.
6. From the aforesaid provision, it is evident that two types of Tribunals have been constituted, i.e., Tribunal and Appellate Tribunal. Sub-section (2) of Section 17 of the Act is relevant and it says that Appellate Tribunal shall exercise jurisdiction, powers and authority to entertain appeal against order made or deemed to have been made by a Tribunal under the Act. Therefore, it is absolutely clear that an interlocutory order passed by the Tribunal is also appealable before the appellate Tribunal. The word "any" cannot be interpreted otherwise except all. Section 20 of the Act is also relevant for the purpose and as such, the same is quoted herein below:
20. Appeal to the Appellate Tribunal.--(1) Save as provided in Sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.
(2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.
(3) Every appeal under Sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed;
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it with that period.
(4) On receipt of an appeal under Sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the Tribunal concerned.
(6) The appeal filed before the Appellate Tribunal under Sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.
7. From perusal of the aforesaid provision, it appears that the person aggrieved by the order made or deemed to have been made by the Tribunal under this Act may prefer appeal to the Appellate Tribunal but no appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties. Therefore, from perusal of Sections 17 and 20 of the Act, it would be evident that any order passed by the Tribunal is appealable before the Appellate Tribunal except the order passed by the Tribunal with the consent of the parties. There is no ambiguity in the aforesaid provision for coming to the conclusion that appeal has been provided even against the preliminary order passed by the Tribunal under the Act.
8. With regard to contention of the earned Counsel for the petitioners that there is no bar to entertain the writ petition as it is the only efficacious remedy, it is necessary to mention herein that the Act contains complete machinery to challenge the order of the Tribunal. It has been provided that aggrieved person may file appeal before the Appellate Tribunal. There is no Rule of law that in all cases, the aggrieved party is entitled to maintain the writ petition without exhausting the remedy provided under the Act rather the aggrieved party is required to avail the remedy provided under the Act. In the case of Titaghur Paper Mills Company Ltd. and Ors. v. State of Orissa and Ors. , the Apex Court has held that if the Act provides appeal and second appeal; the writ petition is not maintainable. In the instant case also, appeal from the order of the Tribunal has been provided before the Appellate Tribunal. Moreover, Sub-section (6) of Section 20 of the Act says that the appeal filed before the Appellate Tribunal shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal. Therefore, it cannot be said that there is no efficacious remedy to the aggrieved person. Similar view has been taken in the case of Dhrub Lochan Pradhan v. State of Bihar and Ors. 2000 (1) P.L.J.R. 996.
9. Thus, on consideration as discussed above, I am of the view that the writ petition proved by the petitioner is not maintainable in view of the discussion made above. Since it has been held that the writ petition is not maintainable, I do not find any reason to decide the case on merit. Accordingly, the writ petition is dismissed but without cost.