Allahabad High Court
Tarun Kumar And Another vs Indian Bank And 2 Others on 21 November, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 356 of 2022 Appellant :- Tarun Kumar And Another Respondent :- Indian Bank And 2 Others Counsel for Appellant :- Dhananjai Rai Counsel for Respondent :- Pashupati Nath Tripathi Hon'ble Manoj Misra,J.
Hon'ble Vikas Budhwar,J.
Heard Sri Vibhu Rai holding brief of Sri Dhananjay Rai for the appellants and Sri P.N. Tripathi for Respondents 1 and 2.
In Re: Delay Condonation Application No. 2 of 2022 By this delay condonation application the appellant seeks condonation of about 13 days' delay in presentation of the appeal against the judgment and order of the learned Single Judge dated 4.7.2022 passed in Writ-C No.16779 of 2022 by which the writ petition of the appellant has been dismissed with liberty to the appellant to file an appeal before the Debts Recovery Appellate Tribunal.
Considering the explanation offered in the delay condonation application which is supported by an affidavit, we deem it appropriate to condone the delay in filing the appeal.
The delay codonation application is allowed.
The delay in filing the appeal is condoned.
The office shall assign regular number to this appeal.
In Re: Appeal As the instant appeal has been filed against the judgment and order of the learned Single Judge dated 4.7.2022 in exercise of writ jurisdiction against the order passed by the Debts Recovery Tribunal, Lucknow dated 11.4.2022 in O.A. No.667 of 2019, exercising jurisdiction under The Recovery of Debts and Bankruptcy Act, 1993, the learned counsel for the respondent has raised a preliminary objection with regard to the maintainability of the appeal under Chapter VIII Rule 5 of the Rules of the Court.
In support of the preliminary objection, a Full Bench decision of this Court in Sheet Gupta vs. State of U.P. and others, AIR 2010 All 46 (FB) has been cited.
Chapter VIII Rule 5 of the High Court Rules reads as under: -
"Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction [or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
In Vajara Yojna Seed Farm, Kalyanpur v. Presiding Officer, Labour Court II, U.P. Kanpur, (2003)1 UPLBEC 496, a Division Bench of this Court in paragraph 64 of its judgment had held as follows: -
"64. From the above discussions and looking into the provisions of U.P. Act No.14 of 1962 as amended by Amendment Act of 1981 and Chapter VIII, Rule 5 of the Rules of the Court, 1952, special appeal is excluded from a judgment of one Judge of this Court in following categories:--
(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court.
(ii) Judgment of one Judge in the exercise of revisional jurisdiction.
(iii) Judgment of one Judge made in the exercise of its power of Superintendence.
(iv) Judgment of one Judge made in the exercise of criminal jurisdiction.
(v) Judgment or order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in State List or Concurrent List.
(vi) Judgment or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act."
The aforesaid law laid down was considered by a Full Bench of this Court in Sheet Gupta vs. State of U.P. and others (supra). The Full Bench in paragraph-18 of its judgment held as follows:
"Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:
1.The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2.the order made by one Judge in the exercise of revisional jurisdiction;
3.the order made by one Judge in the exercise of the power of Superintendence of the High Court;
4.the order made by one Judge in the exercise of criminal jurisdiction;
5.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;
6.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of
(i) the Government or
(ii) any officer or
(iii) authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India."
As the order of the learned Single Judge has been passed in exercise of writ jurisdiction while sitting over an order of the Tribunal in O.A. No. 667 of 2019, in our opinion, in light of the decision of this Court in Vajara Yojna Seed Farm, Kalyanpur v. Presiding Officer, Labour Court II, U.P., Kanpur (supra) and Full Bench decision in Sheet Gupta vs. State of U.P. and others (supra), the appeal is not maintainable.
This intra-court appeal is, therefore, dismissed as not maintainable.
Order Date :- 21.11.2022 N.S.Rathour