Allahabad High Court
Lily Chemicals (P.) Ltd. And Anr. vs Chairperson, Debts Recovery Appellate ... on 18 January, 2002
Equivalent citations: 2002(1)AWC605, [2002]110COMPCAS419(ALL), (2002)1UPLBEC502, 2002 ALL. L. J. 568, 2002 A I H C 1849, (2002) 1 UPLBEC 502, (2002) 110 COMCAS 419, (2002) 46 ALL LR 426, (2002) 1 ALL WC 605, (2002) 1 BANKCLR 238, 2002 ALL CJ 1 346
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. Heard the learned counsel for the petitioners, Sri Shasht Nandan as well as Sri Tarun Verma, learned counsel representing respondent No. 4, Canara Bank, Saharanpur Road Branch, Dehradun, who is only contesting respondent. The respondent Nos. 1. 2 and 3 are formal parties.
2. Although the present writ petition is posted today for admission but with the consent of the learned counsel for the parties. I propose to decide it on merits at admission stage.
3. The instant writ petition is filed by the petitioners questioning the legality and validity of the order dated 15.1.2002 passed by Chairperson, Debts Recovery Appellate Tribunal, Allahabad, respondent No. 1 on the ground, inter alia, that respondent No. 1 has committed manifest error of law in holding that against an order setting aside ex parte decree and restoring original application to its original number, no appeal is maintainable as order falls within the purview of interlocutory order.
4. Brief resume of facts leading to filing of the present writ petition are that the original application filed by respondent No. 4 was decreed ex parte against the petitioners on 11.12.2000. Aggrieved against the ex parte decree, the petitioners moved an application to recall the aforesaid ex parte decree as envisaged under Clause (g) of Sub-section (2) of Section 22 of Recovery of Debts Due to Banks and Financial Institutions Act. 1993 (hereinafter referred to as the Act No. 51 of 1993), which provides for setting aside any order of dismissal of any application for default or any order passed ex parte by the Tribunal. The aforesaid application for setting aside ex parte decree was allowed by the Presiding Officer. Debts Recovery Tribunal, Allahabad on 28.2.2001 and petitioners were put to punitive condition that they shall deposit Rs. thirty lacs with the respondent Bank within a month from the date of setting aside ex parte decree.
5. Aggrieved against the order dated 28.2.2001, the petitioners filed an appeal before the Chairperson, Debts Recovery Appellate Tribunal, Allahabad, respondent No. 1 and the respondent No. 1 after hearing the learned counsel for the parties, arrived at a conclusion that against the order dated 28.2.2001. no appeal is maintainable. It is held by the respondent No. 1 that the order dated 28.2.2001 setting aside ex parte decree is an Interlocutory order, therefore, no appeal lies within the meaning of Section 20 of Act No. 51 of 1993.
6. It is contended by the learned counsel for the petitioners, Sri Shashl Nandan that against the order dated 28.2.2001, setting aside ex parte decree and putting the petitioners to condition is appealable within the meaning of Sub-section (2) of Section 17 read with Section 20 of the Act No. 51 of 1993.
7. The aforesaid argument of the learned counsel for the petitioners is refuted by Sri Tarun Verma, learned counsel appearing on behalf of contesting respondent No. 4. It is urged by Sri Verma that every memorandum of appeal under Section 20 of Act No. 51 of 1993 shall be accompanied with a fee provided under Sub-rule (2) of Rule 8 of Debts Recovery Appellate Tribunal (Procedure) Rules, 1994 (hereinafter referred to as the Rules of 1994) and such fee may be remitted either in the form of crossed demand draft drawn on a nationalised bank in favour of the Registrar and payable at the station where the Registrar's office is situated or remitted through a crossed Indian Postal Order drawn in favour of the Registrar and payable in Central Post Office of the station where the Appellate Tribunal is located. Sri Verma invited my attention to Sub-rule (2) of Rule 8 of Rules of 1994, which provides for quantum of fee payable on memorandum of appeal in support of his aforesaid argument.
8. I have given my thoughtful consideration to the rival contentions raised by learned counsel for the parties.
9. From a conjoint reading of Sub-section (2) of Section 17 and Subsections (1) and (2) of Section 20 of the Act No. 51 of 1993, it is revealed that respondent No. 1 is to entertain appeals against any order made or deemed to have been made, by a Tribunal under the Act No. 51 of 1993. Sub-section (2) of Section 17 of the said Act provides that 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. Sub-section (1) of Section 20 of the Act No. 51 of 1993 provides that save as provided in subsection (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. Sub-section (2) of the aforesaid Section further provides that no appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.
10. Indisputably, in the present case, the order Impugned against which an appeal was preferred before Debts Recovery Appellate Tribunal was not passed with the consent of the parties. Thus, by corollary of reasons, the order Impugned passed by Debts Recovery Tribunal was appealable before Debts Recovery Appellate Tribunal within the meaning of Sub-section (2) of Section 17 and Sub-section (1) of Section 20 of Act No. 51 of 1993 subject to payment of fee as prescribed under Sub-rule (2) of Rule 8 of the Rules of 1994.
11. It is to be imbibed that Act No. 51 of 1993 is a self contained Act. Debts Recovery Appellate Tribunal created under the aforesaid Act is not empowered to go behind the wisdom of Parliament providing appeals against any order passed by Debts Recovery Tribunal before it under Sub-section (2) of Section 17 and carrying out an exception under Subsection (2) of Section 20 of the Act prohibiting appeals against consent order passed by Debts Recovery Tribunal. It is held that Debts Recovery Appellate Tribunal in utter breach of mandatory provisions envisaged under Sub-section (2) of Section 17 and sub-sections (1) and (2) of Section 20 of Act No. 51 of 1993 on its own assumption and presumption borrowing general principles of general law that such orders are interlocutory orders and on that basis holding that no appeal is maintainable against the order dated 28.2.2001 passed by Debts Recovery Tribunal is not sustainable in eye of law and order Impugned dated 15.1.2002 (Annexure-10 to the writ petition) passed by it deserves to be quashed.
12. There is yet another reason to arrive at aforesaid conclusion. It is settled principle of law that if there is conflict between two sections of the same Act, it is to be resolved following the principle of harmonious interpretation. It is well to remember that while following the principle of harmonious interpretation, Courts and Tribunals are to keep in view that both the Sections are made workable. It is to be Imbibed that Courts and Tribunals have to Interpret the conflicting Sections in such a manner that none of these sections become redundant. Here in the present case if interpretation of Section 20 of Act No. 51 of 1993 of Appellate Tribunal is accepted. It will certainly make Subsection (2) of Section 17 redundant, which would be impermissible under rules of interpretation of statute adopted by Courts of law from time immemorial.
13. In my considered opinion, right of appeal is a creation of statute which cannot be taken away by any Court or Tribunal without taking into account all the relevant Sections of an Act conferring right of appeal against an order. In the instant case. Section 20 of Act No. 51 of 1993 cannot be Interpreted in Isolation of Sub-section (2) of Section 17 of the said Act.
14. Upshot of the aforementioned discussion is that Instant writ petition is hereby allowed and the order impugned dated 15.1.2002. Annexure-10 to the writ petition, is quashed with a direction to Chairperson, Debts Recovery Appellate Tribunal, Allahabad, respondent No. 1 to decide the appeal on merits in accordance with law after affording opportunity of being heard to both the parties, subject to payment of fee by petitioners as envisaged under Sub-rule (2) of Rule 8 of Rules of 1994. Learned counsel for the parties are hereby directed to Inform the petitioners and contesting respondent No. 4 to remain present before respondent No. 1 on 28.1.2002 to co-operate in decision of the appeal on merits.
15. It is ordered that till decision of appeal on merits, the auction scheduled to take place on 22.1.2002 shall be kept in abeyance.