Gauhati High Court
State Of Nagaland And Anr. vs Uco Bank And Ors. on 31 January, 2004
Equivalent citations: AIR2004GAU150, II(2005)BC483, [2005]125COMPCAS222(GAUHATI), (2004)2GLR487, AIR 2004 GAUHATI 150, (2004) 2 GAU LR 487, (2004) 20 ALLINDCAS 952 (GAU), 2004 (20) ALLINDCAS 952, (2004) 4 CIVLJ 354, (2005) 2 BANKCAS 483, (2005) 125 COMCAS 222, (2004) 3 CURCC 577, (2004) 1 GAU LT 371, (2004) 2 BANKCLR 187
Author: D. Biswas
Bench: D. Biswas
JUDGMENT D. Biswas, J.
1. The State of Nagaland, represented by the Secretary in the Department of Industries and Commerce has filed this petition under Article 226/227 of the Constitution praying for issuance of appropriate writ for quashing the impugned order dated 6.5.2003 passed in pursuant to the ex-parte order dated 15.7.2002 in OA No. 62/99 by the Recovery Officer, Debts Recovery Tribunal, Guwahati.
2. By the impugned order, the Recovery Officer directed the Regional Director, Reserve Bank of India, Guwahati to deduct the amount of Rs. 3,99,12,814.35 from the Principal Deposit A/c of the Government of Nagaland and further to deposit the same with the Recovery Officer. It may be mentioned here that the learned Tribunal, by the order dated 15.7.2002 passed in OA No. 62/99, issued recovery certificate in favour of the respondent Bank for of Rs. 2,90,94,743.35 with interest thereon @ 10% per annum from the date of filing the application. This order was passed on an application filed by the respondent Bank, Dibrugarh Branch for recovery of the outstanding balance of the amount advanced by the Bank by way of credit facilities. It is pertinent to mention here that this order was passed ex-parte as, according to the learned Tribunal, the defendants (State of Nagaland) failed to appear to contest the claim despite service of notice. The State, however, in para-24 of the writ petition, averred that they had no notice of the aforesaid application filed by the Bank for recovery of the amount. The State also controverted their liability in liquidating the debt of a Company, namely, M/s Nagaland Forest Products Limited, acquired by the State by an Act of Legislature, without notice of the liabilities/dues to the respondent Bank.
3. It would appear from the materials on record that the State of Nagaland have preferred an appeal before the Debts Recovery Appellate Tribunal, Kolkata Under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, for short, "the Act of 1993", with an application for condonation of delay. In the said memo of appeal, the State have, apart from substantive prayer, also prayed for stay of further proceedings for recovery of debt under Chapter V of the Act of 1993.
4. There is no dispute at the Bar that this Court in exercise of its powers under Article 226/227 is not required to delve deep into factual details of the case on merit since the matter is subjudice before the learned Appellate Tribunal in Kolkata. The dispute in the instant writ petition, therefore, has to be confined to the question as to whether the Recovery Officer in exercise of its powers Under Section 28 of the Act of 1993 could attach and direct deduction of any amount from the Principal Deposit A/c of the State lying with the Reserve Bank of India in violation of the provisions embodied in the Constitution prescribing a definite mode for appropriation of moneys from the aforesaid fund.
5. This Court while issuing notice of motion, by the order dated 23.5.2003, as an interim measure, directed the parties to maintain status-quo with regard to the disbursement of the amount lying attached with the Reserve Bank of India. The Bank immediately filed Miscellaneous Case No. 1655 of 2003 for vacating the aforesaid order dated 2.5.2003 and also prayed for dismissal of the writ petition with costs. During the course of argument, a consensus has been arrived at by the learned counsel for both the parties that the writ petition as well as the Miscellaneous Petition be disposed of finally. Precisely, the question to be answered is whether the Recovery Officer is empowered to order attachment and deduction of moneys from the Principal Deposit A/c [Consolidated fund of the State] Under Section 28 of the Act of 1993 in complete negation of the constitutional provisions relating to appropriation of moneys therefrom.
6. Section 19(7) provides for issuance of a certificate by the Tribunal to the Recovery Officer for recovery of the amount of debt specified in the certificate. The order dated 15.7.2002 was passed by the learned Tribunal ex-parte directing issuance of certificate in favour of the applicant bank for recovery of the amount in question. Thereafter, the State of Nagaland filed an application Under Section 22(2)(g) of the Act of 1993 for setting aside the aforesaid order passed ex-parte. The learned Tribunal by the order dated 31.3.2003 dismissed the aforesaid application. The State of Nagaland, in accordance with the provisions of Section 20, preferred an appeal before the Appellate Tribunal in Kolkata against the orders dated 15.7.2002 and 31.3.2003 passed by the learned Tribunal with an interim prayer for stay of further proceedings. The appeal has been filed after expiry of the period of limitation with prayer for condonation of delay. The learned Appellate Tribunal has issued notice in respect of the prayer for condonation of delay. No stay has been granted. The memorandum of appeal shows that the orders passed by the learned Tribunal were challenged on merit as well as on the question of law. However, the memorandum of appeal does not speak anything about the order dated 6.5.2003 passed by the Recovery Officer, which is challenged in this petition, though impliedly the operation of this order was also sought to be stayed. The impugned order dated 6.5.2003 reads as follows :
"Applicant Bank is represented and submitted the postal receipt of sending the notice to the State of Nagaland represented by the Chief Secretary, Government of Nagaland as regards deduction of an amount of Rs. 3,99,12,814.35 from Principal Deposit Account, Government of Nagaland lying with the RBI, Guwahati.
It appears that notice was registered on 4.3.2003. Neither the A/D. Card nor postal envelope containing the notice has returned. 30 days time is over, so it can be presumed that notice was served upon the addressee.
The Certificate debtor failed to appear and submit his reply. On the other hand Applicant side submitted that Certificate debtor failed to pay the dues, so it becomes necessary to recover the dues by deducting it from the Principal Deposit Account, Government of Nagaland lying with the RBI, Guwahati under the provisions of Section 28 of the Recovery of the dues due to Bank and Financial Institution Act, 1993.
As such Regional Director, RBI, Guwahati is directed to deduct the said amount from the Principal Deposit Account, Government of Nagaland lying with the RBI, Guwahati and deposit the amount to the undersigned as and when RBI will lift ban on Government payment if any.
Fix 3.6.2003 for report."
7. Mr. Dutta, learned Advocate General challenged the legality and validity of the aforesaid order. According to Mr. Dutta, the provisions of Section 28 which provide for other modes of recovery do not vest unbridled powers with the Recovery Officer to pass an order in derogation of the Constitutional provisions prescribing definite mode for appropriation of moneys from the Consolidated Fund of a State. Referring to the Constitutional provision in Articles 266, 267 and 283, Mr. Dutta argued that no moneys from the Consolidated Fund could be expended by the Government except in accordance with law and in the manner provided in the Constitution. Mr. Dutta further submitted that the provisions of Section 28 of the Act of 1993 have to be read within the ambit of the Constitutional provisions only as the provisions in Section 28 cannot have overriding powers. Mr. Dutta further argued that the provisions of Section 18 relating to bar of jurisdiction in relation to the matters specified in Section 17 excludes from its purview the jurisdiction of the Supreme Court, and of a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution. The powers of judicial review cannot be obliterated altogether and the High Court cannot remain silent where orders passed contemplate action in complete negation of the Constitutional mandate. In support of this argument, Mr. Dutta relied upon a number of decisions of the Hon'ble Supreme Court which will be referred to in due course, hereinafter.
8. Mr. Dey, learned standing counsel for the Bank argued that the State of Nagaland has preferred an appeal before the Appellate Tribunal, Kolkata challenging the order of the Debts Recovery Tribunal dated 15.7.2002 and prayed for stay of the order dated 15.7.2002 and 30.7.2002 with additional prayer for stay of further proceeding in pursuance of the aforesaid orders. Therefore, the impugned order dated 6.5.2003 is also impliedly in challenge before the Appellate Tribunal. Consequent upon this, Mr. Dey submitted that the State of Nagaland having preferred an appeal is not entitled to seek any remedy by way of writ petition. Parallel proceedings before the Appellate Tribunal as-well-as before this Court under Article 226/227 cannot be permitted. According to Shri Dey, the Act of 1993 is a complete code and the State of Nagaland having sought remedies under the aforesaid Act cannot agitate the same question before this Court. Shri Dey further argued that the Reserve Bank of India has been constituted for management of the currency of the State and for carrying on the business of banking. Any dispute relating thereto has to be resolved within the provisions of the Act of 1993. According to Shri Dey, writ jurisdiction of this Court shall not be invoked simultaneously with the alternative remedy as the grounds on which the writ petition is founded have already been pleaded before the Appellate Tribunal.
9. Chapter V of the Act of 1993 provide for recovery of debts determined by the Tribunal. Sections 25 and 26 provide two different modes for recovery of the debts determined by the Tribunal. Section 25 provides for recovery of the amount of debts by attachment and sale of immovable and movable property; arrest and detention of the defendant in prison and appointment of receiver. Section 28 provides for other modes for recovery which have been resorted to in this case. Clause (i) of Sub-section (3) of Section 28 provides as follows :
"(3)(i) The Recovery Officer may at any time or from time to time, by notice in writing, require any person from whom money is due or may become due to the defendant or to any person who holds or may subsequently hold money for or on account of the defendant, to pay to the Recovery Officer either forthwith, upon the money becoming due or being held or within the time specified in the notice [not being before the money becomes due or is held] so much of the money as is sufficient to pay the amount of debt due from the defendant or the whole of the money when it is equal to or less than that amount."
10. The provisions quoted above clearly indicate the extent of power of the Recovery Officer in issuing notice to the person, liable to pay or holding money on behalf of the defendant, to pay to the Recovery Officer the money specified in the notice. The question to be answered in this context is whether this power of the Recovery Officer under "Section 28 could be exercised even in respect of the Principal Deposit Account of a State, i.e., the Consolidated Fund of the State in custody of the Reserve Bank of India despite there being definite provisions in the Constitution prescribing mode for appropriation of moneys therefrom.
11. Article 266 provide for the Consolidated Fund and public accounts of India and the States. Article 267 provide for establishment of a Contingency Fund by law to be made by Parliament or the Legislature of a State, Article 283 provide for custody of Consolidated Fund and Contingency Fund, The provisions relevant for the issue at hand arc quoted below :
"266 (3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution."
"267(2) The Legislature of a State may by law established a Contingency Fund in the nature of a imprest to be entitled "the Contingency Fund of the State" into which shall be paid from time to time such sums as may be determined by such law, and the paid Fund shall be placed at the disposal of the Governor of the State to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by the Legislature of the State by law under Article 205 or Article 206."
"283(2) The custody of the Consolidated Fund of a State and the Contingency Fund of a State, the payment of money into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of the State, their payment into the public account of the State and withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by the Legislature of the State, and, until provision in that behalf is so made, shall be regulated by rules made by the Governor of the State."
12. Article 266[3] make it clear that no moneys out of the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in the Constitution. Article 283(2) provide that withdrawal of moneys from the Consolidated Fund or Contingency Fund of a State to be regulated by law made by the Legislature of the State and, until any provision in that behalf is made, by Rules made by the Governor of the State. There is no dispute at the bar that no moneys could be expended from the Consolidated Fund of the State except without an appropriation bill passed by the concerned State Legislature. Though the Reserve Bank of India is the custodian of the Consolidated Fund of the Sate and it holds money on behalf of the State, yet no moneys therefrom could be expended except in accordance with the provisions of the Constitution and the laws framed thereunder. Every expenditure from the Consolidated Fund is required to be ratified by the Legislative Assembly by passing an appropriation Act.
13. In the context of the above constitutional provision, it has to be examined whether the Recovery Officer in exercise of powers under Section 28 of the Act of 1993 could have passed an order for deduction of moneys deposited in the Consolidated Fund of the State of Nagaland. It is the established principle that if on one construction a given statute will become ultra-vires and whereas on another construction, the statute remain effective and operative, the Court will prefer the latter. There is no dispute in the instant case that the Parliament has the legislative competence in enacting the Act of 1993. In Kedar Nath Singh, Appellant v. State of Bihar, Respondents, AIR 1962 SC 955, in para 26, the Supreme Court held that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. Therefore, the interpretation of the provisions of Section 28 which empower the Recovery Officer to require any person from whom money is due or may become due to the defendant or to any person who holds or may subsequently hold money for or on account of the defendant, to pay to the Recovery Officer, either forthwith upon the money becoming due or being held so much of the fund as is sufficient to pay the sum of the debt due from the defendant have to be confined within the bound of the Constitutional provisions. This, power of the Recovery Officer can very well be exercised in all cases where there is no conflict with the constitutional provisions. Though the Reserve Bank of India is the custodian of the money deposited in the Consolidated Fund of the State of Nagaland, yet withdrawal of moneys therefrom has to be in compliance with the Constitutional requirement, i.e., by way of an appropriation bill. Therefore, the powers of Section 28 cannot be exercised contrary to the Constitutional provisions. It cannot be said that the Union Parliament while enacting the Act of 1993 intended to vest unbridled powers to the Recovery Officer to act beyond the Constitutional provisions. Therefore, the order dated 6.5.2003, in the opinion of this Court, being in conflict with the Constitutional provisions is unsustainable in law.
14. Next question arises whether this Court would exercise its powers of judicial review since the Act of 1993 is a code complete in itself with regard to recovery of bank dues. Section 18 of the Act of 1993 reads as follows :
"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 Articles 226 and 227 of the Constitution] in relation to the matters specified in Section 17."
15. A plain reading of the aforesaid provisions of Section 18 indicate that the power of a High Court exercising jurisdiction under Article 226 and 227 of the Constitution have been excluded therefrom. The restraints which the High Courts should act with are self-imposed and there cannot be any contrary view that in an appropriate case, the High Court may exercise the powers of judicial review to set at light a mis-directed course of judicial action. It is inconceivable that a High Court would not be entitled to exercise its power of judicial review to reverse a wrong situation occasioned by a subordinate court or a Tribunal contrary to Constitutional provisions. In Surya Devi Rai, Appellant v. Ram Chander Rai and Ors., Respondents [2003] 6 SCC 675, in para 38(3) and (7), the Apex Court held as follows :
"38(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice."
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act least a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal would result in prolonging of the lis."
16. The above decision clearly show that the power of the High Courts under Article 220/227 is always available in addition to statutory remedies when a subordinate court is found to have acted without jurisdiction or in excess of its jurisdiction or in flagrant disregard of law or the rules or procedure or in violation of the principles of natural justice. However, the decision above, emphatically lay down the rule that a High Court may intervene where the error if not corrected at that moment may become incapable of correction at later stage. The caution sounded by the Hon'ble Apex Court is that the High Court while exercising supervisory jurisdiction will not act as a Court of Appeal and go deep into the matter on merit to correct errors of formal or technical character.
17. Mr. B.R. Dey, learned senior counsel argued that the money borrowed from the Bank could not be withheld by the State of Nagaland, and any judicial intervention under Article 226/227 of the Constitution at this stage will not serve larger public interest. According to Shri Dey, the Bank has a right to recover the public money for better investment in public interest. In this connection, Shri Dey relied upon the observation of the Hon'ble Supreme Court in Ram and Shyam Co., Appellant v. State of Haryana and Ors., Respondents [1985] 3 SCC 267. In that case, the Hon'ble Supreme Court expressed surprise upon judicial intervention which was not in furtherance of larger public interest. Shri Dey also referred to the decision in A.R. Antulay, Appellant v. R.S. Nayak and Anr., [1988] 2 SCC 602 and argued that the Act of 1993 prescribe a particular procedure for recovery of debts and, as such, any intervention by this Court in exercise of the powers of judicial review will amount to negation of the rule of law. Shri Dey further laid emphasis on this judgment in order to show that the State of Nagaland is not entitled to relief in this writ petition since it has already availed of the statutory remedy by preferring an appeal before the Learned Tribunal at Kolkata. Shri Dey also relied upon the decisions in K.K. Modi, Appellant v. K.N. Modi and Ors., [1998] 3 SCC 573, Ravinder Kaur, Appellant v. Ashok Kumar and Anr. VI [2003] SLT 505, Shiv Shakti Coop. Housing Society, Nagpur, Appellant v. Swaraj Developers and Ors., [2003] 6 SCC 659, State of Andhra Pradesh, Appellant v. P.V. Hanumantha Rao D THR. LRS. And Anr. VII [2003] SLT 22, Achutananda Baidya v. Prafulla Kumar Gayon and Ors., (1997] 5 SCC 76, Sita Ram Singhania v. Bank of Tokyo-Missubishi Ltd. and Ors. 1999 4 SCC 69, United Bank of India v. Abhijit Tea Co. Pvt. Ltd and Ors. [2000] 7 SCC 357, Sadhana Lodh, Appellant, Appellant v. National Insurance Co. Ltd and Anr., [2003] 3 SCC 524. In Hanumantha Rao (supra), the Supreme Court held as follows :
"30. True it is that remedy of writ petition available in the High Court is not against the 'decision' of the subordinate Court, Tribunal or authority but it is against the 'decision making process'. In the 'decision making process', if the Court, Tribunal or authority deciding the case, has ignored vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such errors and prevent gross injustice to the party complaining."
32. This Court has recognised the right of the High Court to interfere in orders of Sub-ordinate Courts and Tribunals where, (1) there is an error manifest and apparent on the face of the proceedings such as when it is based on clear misreading or utter disregard of the provisions of law and (2) a grave injustice or gross failure of justice has occasioned thereby."
18. The ratio available in the decisions referred to above show that ordinarily the High Court shall not exercise its powers of judicial review when statutory remedy by way of appeal or revision is available except , where intervention appears to be indispensable for correcting the mistake forthwith in order to prevent recurrence of further mistake. In the case at hand, we are concerned with the infringement of the Constitutional provisions embodied in Articles 266 and 267. No law enacted by the Union Parliament or a State Legislature can be interpreted to have been enacted with the intention of having overriding effect over the Constitutional provisions. Attachment of any property of the Government of Nagaland or moneys other than the deposit in the Consolidated Fund is obviously permissible under the provisions of Section 28 of the Act of 1993, but this power exists only within the limits of the Constitutional provisions. Jurisdiction of a High Court under Article 226 of 227, notwithstanding self-imposed restrictions, can be invoked to regulate the action of a subordinate Court or the Tribunal in the right direction.
19. In State of U.P., Appellant v. Mohammad Noor, Respondents, AIR 1958 SC 86, the Supreme Court was of the view that existence of other adequate legal remedies is not per se a bar to the issue of a writ of Certiorari and in a proper case it may be the duty of the superior Court to issue a Writ of Certiorari to correct an error of an inferior court or tribunal without relegating the petitioner to other legal remedies. The Supreme Court further observed that there may be cases where the error, irregularity or illegality touching jurisdiction or procedure by an inferior Court or Tribunal of first instance is so patent, and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. In A.V. Venkataneswaran, Collector of Customs, Bombay, Appellant v. Ramchand Sobhraj Wadhwani and Anr., Respondents, AIR 1961 SC 1506 and Calcutta Discount Co. Ltd., Appellant v. Income-Tax Officer, Companies District I, Calcutta and Anr.. Respondents, AIR 1961 SC 372, the Supreme Court was also of the same view [per majority] as in Mohammad Noor (supra). In addition to the above decisions, the Supreme Court has consistently laid that in exceptional cases Writ of Certiorari, notwithstanding the fact that the statutory remedies have not been exhausted, will be available. In Union of India v. Hindalco Industries, [2003] 5 SCC 194, in para-12, the Supreme Court held :
"12. There can be no doubt that in matters of taxation, it is inappropriate for the High Court to interfere in exercise of jurisdiction under Article 226 of the Constitution either at the stage of the show-cause notice or at the stage of assessment where alternative remedy by way of filing a reply or appeal, as the case may be, is available but these are the limitations imposed by the courts themselves in exercise of their jurisdiction and they are not matters of jurisdictional factors. Had the High Court declined to interfere at the stage of show-cause notice, perhaps this Court would not have been inclined to entertain the special leave petition; when the High Court did exercise its jurisdiction, entertained the writ petition and decided the issue on merits, we do not think it appropriate to upset the impugned order of the High Court under Article 136 of the Constitution on a technical ground."
20. Of the recent judgments available, in Sadhana Lodh (supra), in para-6, the Supreme Court expressed the view that powers of judicial review under Article 226 will be available only in those cases where no remedy by way of appeal is provided, and revision under Section 115 CPC is also expressly barred. This observation in para-6 of the judgment in Sadhana Lodh (supra) was rendered in the context of a dispute regarding quantum of compensation under the Motor Vehicles Act. The fact situation before this Court is different in the sense that here the Recovery Officer while exercising powers under Section 28 of the Act of 1993 has transgressed into the Constitutional provisions. Therefore, it is an extraordinary case where the ratio available in Surya Devi Rai v. Ram Chander Rai and Ors., [2003] 6 SCC 675 will apply. The Supreme Court with reference to the amendment of Section 115 of the Code of Civil Procedure and its impact on jurisdiction under Article 226 and 227 is of the view that the amendment cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. In sub-para [3] of para-38 it is specifically provided that - "Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by oversleeping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice." From this decision, it is amply clear that this Court in the given situation, has to overstep the self-imposed restrictions and intervene with the impugned order.
21. The State of Nagaland has preferred an appeal against the ex-parte order dated 15.7.2002 directing issuance of certificate in favour of the Bank for recovery of the loan amount with interest and the order dated 31.3.2002 rejecting the application far setting aside the ex-parte order. The impugned order dated 6.5.2003 was passed after the appeal was preferred with consequential prayer for stay of further proceedings. The impugned order dated 6.5.2003 passed subsequently is not specifically in challenge in the appeal pending before the learned Appellate Tribunal. It appears from the Memo of Appeal that the orders dated 15.7.2002 and 31.3.2003 have been challenged on merit as-well. The appeal is yet to be admitted and the learned Appellate Tribunal has only issued notice for condonation of delay. The error committed by the Recovery Officer has to be corrected right at this moment to avoid future complications. This Court exercising powers of judicial review will not obviously delve deep into the question on merit to determine the extent of liability of the State of Nagaland. It is the learned Appellate Tribunal which will address the question whether the State of Nagaland is bound to discharge the liability of the Company acquired by it by an Act of the Legislature and/or in terms of the order dated 11.5.1989 passed by the Division Bench in Civil Rule No. 174 of 1984. This Court is concerned with the order dated 6.5.2003 directing Reserve Bank of India to deduct the certified amount from the Consolidated Fund of the State and to deposit the same with the Tribunal. For reasons above, judicial intervention appears to be indispensable.
22. In the result, the writ petition is allowed. The impugned order dated 6.5.2003 is hereby set aside. However, this will not preclude the Recovery Officer from passing appropriate orders under Section 28 of the Act of 1993 for attachment of any money in deposit with any authority other than the Consolidated Fund or the Contingency Fund of the State. The Tribunal may even direct the State functionaries to initiate steps for appropriation of the aforesaid amount from the Consolidated or the Contingency Fund in accordance with the provisions of law.
23. The Miscellaneous Case No. 1655 of 2003 filed by the Bank is dismissed.
No costs.