Patna High Court
Kavita Pigments And Chemicals (Pvt.) ... vs Allahabad Bank And Ors. on 26 August, 1999
Equivalent citations: AIR2000PAT43, 1999(47)BLJR2273, AIR 2000 PATNA 43, (2000) BANKJ 821, (2000) 1 PAT LJR 999, (2000) 3 CIVLJ 686, (2000) 2 BLJ 265, 1999 BLJR 3 2273
Author: Asok Kumar Ganguly
Bench: Asok Kumar Ganguly
ORDER Asok Kumar Ganguly, J.
1. This writ petition has been filed for quashing the order dated 30-12-1998 passed by the Debt Recovery Tribunal, Patna in O.A. No. 4/97.
2. It appears that an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act. 1993 (hereinafter called the said Act) was filed against the petitioner by respondent No. 1 which is Allahabad Bank, Bokaro Steel City Branch, Naya More, Bokaro, Bihar (hereinafter called the said Bank). In the said application the said Bank as an applicant has made out a case that the petitioner No. 1, a Company incorporated under the Indian Companies Act, 1956 having its registered office at Bakaro, approached the said Bank through its Director for Cash credit Limit of rupees one lac for working capital and submitted its application for the same. The said Bank sanctioned the said cash credit limit of rupees one lac against the hypothecation of stocks and book debt payable on demand with Interest specified in the sanction letter. Thereafter necessary documents were executed between the parties. The writ petitioner then approached the said Bank for enhancing the said limit upto rupees five lac thirty thousand and submitted an application to that effect on 31-3-1990. The said application of the petitioner was recommended by the Bank to the Regional Office, Ranchi and the loan was sanctioned upto the limit of rupees four lacs fifty thousand on certain terms and conditions mentioned therein. The case of the said Bank is that despite several requests and reminders by the Bank, the petitioners did not regularise the position of the amount nor paid to the said Bank the dues outstanding in their account. Ultimately a legal notice was given by the said Bank on 27- 2-1997. As nothing had happened, an application was field by the said Bank before the Tribunal with a prayer for a declaration that the petitioners owe to the said Bank a sum of Rs. 18,38,475.24 paise with interest calculated upto 28-12-1997 and further interests at the rate of 19.75% per annum with quarterly rests.
3. On the said application being filed the petitioners were served with summons and they filed their written statement taking their defence to the said claim. It appears that thereafter the parties field their evidence of affidavits, and the petitioners filed a substantive application requesting that the witnesses of the said Bank be produced for cross-examination.
4. The grievance of the petitioners is that by the impugned order dated 30-12-1998 the Presiding Officer of the said Tribunal dismissed the petitioners' application.
5. It is not in dispute that the said order dated 30-12-1998 was passed by the said Tribunal after hearing the parties. While passing the said order the Tribunal has considered the case of the rival parties especially the case of the petitioners that they want to cross-examine the witnesses of the Bank in view of the principles of natural justice but the said prayer of the petitioner was declined by the Presiding Officer of the said Tribunal by passing a speaking order.
6. This Court, however, does not pronounce on the correctness or validity of the said order having regard to principles decided in this case as would appear from the following discussion.
7. Learned counsel for the respondent Bank raised a preliminary objection about the maintainability of the writ petition, inter alia on the ground that the said order dated 30-12-1998 is an appealable order and a clear right of appeal to the appellate tribunal under the said Act is given to the petitioners. Initially learned counsel for the petitioners raised doubt as to whether the appellate tribunal is functioning or not. As such the Court adjourned the matter on 29-7-1999 with a direction upon the learned counsel for the Bank to find out whether the appellate tribunal is functioning. Thereafter on 6-8-1999 the learned counsel for the Bank informed this Court that the appellate tribunal is functioning at Bombay and Hon'ble Mr. Justice V.R. Datar is the Chairman of the said appellate tribunal.
8. This fact has not been disputed by the learned counsel for the petitioners but the learned counsel contended that the impugned order dated 30-12-1998 being not a final order, no appeal would lie against the said order. The alternative submission of the learned counsel for the petitioner is that, assuming but not admitting that the appeal lies against the impugned order dated 30-12-1998, but having regard to the established principles under which a writ petition is maintainable without exhausting the statutory remedy, this Court should hear the writ petition as the order impugned is violative of the principles of natural justice and is also inconsistent with the accepted legal principles.
9. This Court proposes to examine both the limbs of submissions made by the learned counsel for the petitioners.
10. In support of his first submission learned counsel very strongly relied on a Judgment of Calcutta High Court in the case of Pratap Ch. Dey v. Allahabad Bank reported in AIR 1997 Cal 96. Relying on the said judgment in Pratap Ch. Dey (supra), learned counsel wanted this Court to follow the said decision of Calcutta High Court wherein the learned Judge has held in paragraph 5 at page 101 of the said report as follows :--
"Therefore on a proper construction of the word 'an order' as mentioned in Section 20 of the said Act of 1993 it seems that 'an order' means a final order passed by the Tribunal under Section 19 of the said Act of 1993, I am informed that the Appellate Tribunal constituted under the Act has been established in Bombay. Against an arbitrary interlocutory order passed by the Tribunal in Calcutta, if an appeal is to be preferred in Bombay a litigant has to travel to Bombay where the Appellate Tribunal has been established. If this is accepted, in my view, the purpose of the Act of 1993 for which the Act has been enacted would be totally frustrated and the entire system shall become unworkable as a litigant either it is a bank or a loanee has to approach the Appellate Tribunal at Bombay by filing an appeal against any simple interlocutory order of the Tribunal which shall involve not only huge expenses but also considerable period of time and the delay in disposal of appeals shall defeat the purpose of the Act, 1993 which has been enacted for the purpose of speedy disposal of the petitions under Section 19 of the said Act of 1993 and to recovery dues of the Banks at any early date."
11. The learned Judge of Calcutta High Court in Pratap Ch. Dey (supra) came to the conclusion that an appeal from an order under Section 20 of the said Act only means an appeal from a final order and not from an interlocutory order. In coming to the said finding the learned Judge has relied on Section 19(8) of the said Act which provides that an application made to the Tribunal under Sub-section (1) of Section 19 of the said Act shall be dealt with as expeditiously as possible and endeavour shall be made to dispose it of finally within six months from the date of receipt of the application. The learned Judge further made the following observation in paragraph 5 at page 101 of the said report :--
"From a careful reading of the scheme and provisions of the Act there is no difficulty in coming to a conclusion that the plain literal interpretation of the statutory provision in Section 20 of the Act produces a manifestly unjust result which could never have been intended by the legislature. Therefore, it is open to the Court to modify and_ interpret the language used by the legislature so as to achieve the intention of the legislature and produce a rational constitution (See (19851 4 SCC 343 : (AIR 1985 SC 16981. Commr. of Income-tax. Bangalore v. J. Gutia. Yadagiri. In this view of the matter also I am of the firm opinion that the word an order as used in Section 20 of the said Act of 1993 shall mean any final order passed by the Tribunal."
12. This Court, with utmost respect to the learned Judge of the Calcutta High Court, cannot accept and follow the said judgment. Even though the said judgment in the case of Pratap Ch. Dey (AIR 1997 Cal 96) (supra), delivered by Calcutta High Court, is not binding on me but since the said Judgment is delivered by a learned Judge of a premier High Court, this Court proceeds to give its own reasons why the said judgment is not acceptable to this Court.
13. For a proper appreciation of the point at issue, the relevant provisions of the Act may be noted. It is no doubt true that the said Act is a Special law in order to provide for establishment of Tribunal for expeditious adjudication of disputes relating to recovery of debts to the Bank and financial institutions. In Section 17 of Chapter III of the said Act the jurisdiction, powers and authority of Tribunals are enumerated. Section 17 of the Act is set out 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."
14. A perusal of the aforesaid Section 17 of the said Act shows establishment of two types of Tribunals, namely, (a) A Tribunal and (b) An Appellate Tribunal and it' is further made clear in Sub-section (2) of Section 17 of the said Act that an appellate tribunal can exercise jurisdiction, power and authority to entertaining appeals against any order made or deemed to have been made by a Tribunal under the said Act. Thus Section 17(2) of the said Act makes it abundantly clear that even an interlocutory order passed by the Tribunal is appealable before the Appellate Tribunal. Here the expression 'any' must mean 'all' and 'every'.
15. Reference in this connection may be to the Division Bench judgment of Patna High Court in the case of Ashiq Hasan v. Sub Divisional Officer, Sadar, Monghyr reported in AIR 1965 Pat page 446 at page 448 of the said Judgment, the learned Judge of the Division Bench of this Court had occasion to construe the word "any". In doing so, the learned Judges referred to Stroud's Judicial Dictionary (3rd Edition, page 150). and an old English decision in the case of Liddy v. Kennedy, reported in (1871) 5 HL 134. The expression 'any' in the context was interpreted to mean 'all', 'every'.
16. Following the aforesaid ratio in the case of Ashiq Hasan Khan (AIR 1965 Patna 446) (supra) this Court is also of the opinion that the word "any" occurring in Sub-section (2) of Section 17(2) of the said Act would mean in the context 'all' and 'every'. Apart from the provisions of Section 20 of the said Act where the right of appeal is conferred also makes the position also clear. The said provision of Section 20 of the said Act is set out 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, my 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 within 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, pas 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 concerned Tribunal.
(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."
17. It is made clear in Sub-section (2) of Section 20 of the said Act that appeal shall not lie from an order made by the Tribunal with the consent of the parties. If Sub-section 20 of the said Act is read in conjunction with Section 17(2) of the said Act, the only requirement for filing an appeal against an order seems to be that it must be one which is not passed with the consent of the parties and the person filing the appeal must show that he is aggrieved by the same. The appellate provision has been made very liberal by the expression used in Sub-section (1) of Section 20 and Section 17(2) of the said Act that such an appeal may be filed not only an order but even from an order deemed to have been made by the Tribunal under the said Act.
18. In the face of such clear and unambiguous statutory provision this Court, with deep and profound respect to the learned Judge of Calcutta High Court, fails to appreciate how it can be held that the 'order' under Section 20 of the said Act only means a final order and not an interlocutory order.
19. However, in this connection reference may be made to some other Statutes where appeals/revision from interlocutory order is barred and in such case the legislature has made the position amply clear. Reference in this connection may be had to the provisions of the Family Courts Act, 1984. Section 19 of the said Family Courts Act, 1984 is set out below :--
"19. Appeal -- (1) Save as provided in Sub-section (2) and nowithstanding anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 19 73 or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973;
Provided that nothing in this Sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 before the commencement of the Family Courts (Amendment) Act, 1991.
(3) Every appeal under this Section shall be preferred within a period of thirty days from the date of Judgment or order of a Family Court .
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within the jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 for the purpose of satisfying itself as to the correctness , legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
(6) An appeal preferred under Sub-section (1) shall be heard by a Bench consisting of two or more Judge."
20. It is clear from perusal of Section 19(1) of the Family Courts Act, 1984 that appeal shall not He from an interlocutory order. So the legislative intent of not allowing the appeal from an interlocutory order as made clear.
21. Similarly in Section 379(2) of the Code of Criminal Procedure, 1973 identical provision has been made to prohibit the exercise of revisional power from an interlocutory order. The relevant provision of Section 397(2) of the Code of Criminal Procedure, 1973 is set out below :--
"(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal inquiry, trial or other proceeding."
22. The aforesaid two provisions of two different Acts have been referred to by this Court only for the purpose of showing that when a right of appeal/revision is not conferred from an interlocutory order, normally the legislature makes it very clear by the words of the Statute itself and does not leave lit for judicial interpretation.
23. This is done by the legislature on a very salutary principle. It is well known that a right of appeal, even though is a creature of statute, is a vested right in the suitor and such a right is vested in him from the time of the commencement of the 'lis', Therefore, right of appeal is a substantive right. So if a statute does not intend to grant a light of appeal from an interlocutory order in a proceeding, the same is made clear by the word of the statute itself. Here the words of the Statute has made it very clear that the right of appeal is granted from any order passed by the Tribunal. Any other interpretation would be destructive of that substantive right.
24. Even then the learned Judge of Calcutta High Court has held otherwise on the basis of the following reasons as have been enumerated in the judgment :--
(i) The Act provides for speedy adjudication of the proceeding and if an appeal is allowed to be filed from an interlocutory order, that would delay the disposal of such proceedings.
(ii) The appellate authority being situated at Bombay, the filing the appeal by the litigant to a far off place at Bombay will further cause delay in the disposal of the appeal coupled with the incurring of unnecessary expenses and these two reasons, according to the learned Judge, are something which is opposed to the scheme of the Act and the learned Judge further held that if an appeal is allowed to be filed against an interlocutory order that will defeat the object of the Act and will bring about injustice. So the learned Judge held that adopting a literal interpretation of the appeal provision of the Act will defeat the purpose of the Act.
25. With utmost humility, this Court does not find either of the two reasons convincing enough to persuade this Court to give up the literal construction of the Act as the learned Judge of Calcutta High Court has done. The purpose of expeditious disposal of adjudication is one of the main purposes of the Act but such expeditious disposal cannot mean when a right of appeal has been specifically conferred on a litigant the said right of appeal shall "be negatived in the name of expedition. It has always been held that expedition is a good thing but justice is certainly a better one.
26. It may also be incidentally mentioned that in the said Act itself there is a provision under Sub-section (6) of Section 20 of the Act directing that the Appellate Tribunal shall deal with the appeal as expeditiously as possible and endeavour should be made to dispose of the same within six months from the date of receipt of the appeal. This shows that expedition has been sought to be introduced at every stage of the Act but certainly not at the cost of depriving the litigant of his vested right of appeal.
27. The other logic advanced by the learned Judge of Calcutta High Court that the appellate tribunal is situated at Bombay and, therefore, filing of appeal to the appellate Tribunal at Bombay against an interlocutory order will defeat the purpose of the Act has unfortunately failed to persuade this Court at all. The said Act is a Central Act. If that logic is followed then it can be said that a litigant invoking the provisions of the said Act at Bombay and feeling aggrieved by an interlocutory order, can file the appeal before the Appellate Tribunal in Bombay. For him distance cannot be a factor. But a litigant in Calcutta or Patna has no such right of appeal against such interlocutory order. If this logic is followed that will bring about the violation of Article 14 of the Constitution which guarantees the equal protection of laws to the citizens. In other words if the aforesaid logic is tested from another angle, then also it becomes equally unconvincing. For instance if within a short time the Appellate Tribunal is established in Calcutta or in Patna then in that case litigants of Patna and Calcutta will have a right to file appeal against an interlocutory order but they have no such right at the present moment since the Appellate Tribunal is at Bombay. Such reasoning for interpretation of the said Act which is a Central Act with great respect, does not appear to this Court to be persuasive or based on the cardinal principles of Statutory interpretation and this Court cannot accept the same.
28. The learned Judge of Calcutta High Court being persuaded by the aforesaid logic refused to follow the literal construction of the said Act even though it is well settled that when the language of the Statute is clear, literal construction must be adhered to.
29. Reference in this connection may be made to the principles laid down by Tindal, C.J. in an old English case in the case of Sussex Peerage (1844) 11 CI and F 85, at page 143 and whieh are quoted hereunder :
"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver."
30. The same principles have been laid down by Privy Council. "Again and again" said Lord Chancellor Viscount Simon, (delivering the judgment in King Emperor v. Benowari Lal Sharma, reported in (1945) 72 Ind App 57 at page 71 ; (AIR 1945 PC 48) of the reports, "this Board has insisted that in construing enacted words we are not concerned with the result, injuries or otherwise which may follow from giving effect to the language used."
31. Again in Pakala Narayana Swami v. Emperor reported in AIR 1939 PC 47 Lord Atkin, speaking for the Bench at page 51 of the report has put the same principle as simply as this : "But in truth when the meaning of words is plain it is not the duty of the Courts to busy themselves with supposed intentions."
32. Justice Gajendragadkar in Kanailal Sur v. Paramnidhi Sadhu Khan reported in AIR 1957 SC 907 has also spoken in the same vein. The words of the learned Judge may be quoted below : --
"If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act."
33. Justice S. R. Das was even more emphatic in saying "The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the section of the Act." See Rananjay Singh v. Baijnath Singh reported in AIR 1954 SC 749 at page 752.
34. Francis Bennlon in his famous treatise 'Statutory Interpretation', Second Edition, Butterworths at page 599 has reiterated this principle by saying that there is a presumption in favour of literal Interpretation and saying so the learned author has quoted two learned Judges. The said passage is set out below :--
"The presumption in favour of literal interpretation was stated by a nineteenth century Lord Chancellor, Lord Selbome, in the words 'there is always some presumption in favour_of the_more simple and literal inter-pretation of the words of the statute. Judges of the present day show no inclination to abandon the presumption, despite the growing popularity of 'purposive' construction. As Lord Parkar CJ said : 'the intention of Parliament must be deduced from the language used.'"
35. The learned Judge of Calcutta High Court while interpreting the appellate provisions did not hold that there is any ambiguity in the language of the Act but even then departed from the aforesaid principles of literal construction by relying on the decision of the Supreme Court in the case of Commr. of Income-tax, Bangalore v. J.H. Gotla reported in AIR 1985 SC 1698. The learned Judge referred to paragraph 47 of the said judgment. The said judgment was dealing with the provisions of Sections 16(3) and 24(2) of the Indian Income-tax Act 1922. In paragraph 47 of the said judgment it was made clear "in the instant case we are dealing with an artificial liability created for counteracting the effect only of attempt by the assessee to reduce tax liability by transfer." Apart from that the learned Judge of the Supreme Court delivering the said judgment in paragraph 47 further observed that" if other construction is possible apart from strict literal construction, then that construction should be preferred to the strict literal construction."
36. Therefore, whenever a purposive construction is resorted to by the Judges it must appear that two-constructions are reasonably possible and that the literal constructive defeats the manifest purpose of the Act, it is only in such a case that the Judges may prefer the purposive construction to the literal one. But this Court finds that in the instant case, the provisions of Section 17(2) read with Section 20(1) of the said Act, make provisions relating to right of appeal from an interlocutory order so clear and unambiguous that no other construction is possible and this Court must accept the literal construction to hold that an appeal is maintainable against an interlocutory order. Any other construction will bring about great injustice to the extent of depriving the litigant of his substantive right of appeal against an interlocutory order when the law gives him such a right. Therefore, with great respect to the learned Judge of Calcutta High Court, this Court cannot hold that appeal from an interlocutory order is not granted under the said Act or that the word "an order" under Section 20(1) of the said Act would mean a final order. This amounts to engrafting an amendment on clear words of the Act and which this Court refrains from indulging in, So this Court cannot approve the decision in the case of Pratap Chandra Dey (supra) reported in AIR 1997 Cal 96.
37. Both Justice C. K. Thakkar speaking for the Division Bench of Gujarat High Court in the case of Bank of India v. Baroda Cables reported in 1999 ISJ (Banking) page 309 and a learned single Judge of Delhi High Court in the case of Shoes East Ltd. v. Allahabad Bank, reported in AIR 1997 Delhi 325 have held that an appeal to the Appellate Tribunal against an interlocutory order passed by the Tribunal is maintainable. This Court is in respectful agreement with the said decisions.
38. Learned counsel for the petitioner, however, has further urged that in view of Section 21 of the said Act an appeal to the Appellate Tribunal is only maintainable against the final order. Section 21 of the said Act is set out below :--
"21. Deposit of amount of debt due, on filing appeal -- Where an appeal is preferred by any person from whom the amount of debt is due to a Bank or a financial institution or a consortium of banks or financial institutions, such appeal shall not be entertained by the Appellate Tribunal unless such person has deposited with the Appellate Tribunal seventy five per cent of the amount of debt so due from him as determined by the Tribunal under Section 19;
Provided that the Appellate Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section."
39. This Court does not find any reason to come to the aforesaid conclusion from a reading of Section 21 of the said Act. Section 21 of the said Act makes a provision that when an appeal is filed by a person and against whom the amount of debt, due to the Bank or financial institution, has been determined then such appeal shall not be entertained by the Appellate Tribunal unless the person against whom such declaration has been made makes a deposit of 75% of the amount of debt as determined by the Tribunal under Section 19 of the said Act.
40. This requirement of pre-deposit of amount determined is a common feature in many fiscal statutes and the said requirement of pre-deposit is only to be enforced in a case where the determination has been made by the Tribunal under Section 19 of the said Act. Therefore, the expression "such appeal" has been used. The requirement of such pre-deposit of the amount determined cannot be enforced by the Appellate Tribunal in connection with an appeal where no such determination has been made as is in the instant case. So this point has no substance.
41. The other point urged by the learned counsel for the petitioner by way of alternative submission is that since the jurisdiction of the High Court under Articles 226 and 227 has been preserved, this Court can entertain this writ petition without asking the petitioner to file an appeal under the said Act. In support of the said contention, learned counsel for the petitioner submitted that the order impugned has been passed in violation of the principles of natural justice and he assailed the order on some other grounds also. Learned counsel for the petitioner further urged that since the order has been passed in violation of the principles of natural justice, this writ petition is maintainable without exhausting the statutory remedy of appeal.
42. This Court cannot accept this submission of the learned counsel. The order impugned has not been passed in violation of the principles of natural justice inasmuch as it is not the case of the petitioner's counsel that the order has been passed without hearing the petitioner. The contention of the learned counsel for the petitioner is that the impugned order has been passed on an improper appreciation of his right of cross examination which according to him is a facet of the principles of natural justice. Therefore, his submission, if properly understood, is that the impugned order has been passed erroneously and without proper appreciation of the concept of natural justice. This Court does not make any observation on the merits of such contention as it is of the opinion that it is open to the petitioner to raise such question in the statutory appeal before the Chairman of the Appellant Tribunal.
43. However this Court is not willing to a accept that the impugned order has been passed in violation of the principles of natural justice inasmuch as the order has been passed after giving the petitioner full hearing.
44. In support of the contention that this writ Court can entertain the writ petition despite the existence of statutory remedy, learned counsel for the petitioner has relied on a recent decision of the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC 1 : (AIR 1999 SC 22). In a two Judge Bench judgment of the Supreme Court, the learned Judges set out the principles where the writ Court will exercise its power under Article 226 of the Constitution and will not decline the same in view of the statutory remedy being made available. The principles laid down in the case of Whirpool Corporation (supra) are well settled and cannot be questioned by this Court. But there are vital factual differences between the case of Whirlpool Corporation and the present case. In the case in Whirlpool Corporation the learned Judges of the Supreme Court interfered because it was shown before the Supreme Court that the authority against whom the writ was filed had no jurisdiction and had usurped the jurisdiction without any legal foundation. It is obvious that in such a case writ will lie. But in the instant case it is not the petitioner's stand that the Tribunal which has passed the impugned order had no jurisdiction or that it had passed the order in usurpation of jurisdiction. In fact the petitioner has submitted to the jurisdiction of the Tribunal and has contested fully the proceeding before it and only after the passing of an adverse order, it cannot contend that the Tribunal has no jurisdiction. Reference in this connection may be made to the decision of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa reported in AIR 1983 SC 603 in which discussing the question of alternative remedy, the three Judge Bench of the Supreme Court has very categorically held that when the Act provides for a complete machinery to the challenge of an order, such an order can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. Laying down the said principle the learned Judges of the Supreme Court made it clear that where a right or liability is created by the Statute which gives special remedy, in such cases the remedy provided by that statute must be availed of. Law on this point has been very succinctly laid down by the Supreme Court in paragraph 11 at page 607 of the said judgment in Titaghur Paper Mills Co. Ltd. (supra) which is set out below :
'There are three classes of cases in which a liability maybe established founded upon statute. *****But the is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ...... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd., (1919) AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co., 1935 AC 532 and Secretary of State v. Mask & Co., AIR 1940 PC 105 . It has also been held to be equally applicable to enforcement of rights. and has been followed by this Court throughout. The High Court was therefore, justified in dismissing the writ petitions in limine."
45. In the same vein is the judgment of the recent 9 Judge Constitution Bench of the Supreme Court in the case of Mafatlal Industries Ltd. v. Union of India reported in (1997) 5 SCC 536 while dealing with the question of refund under the Excise Act the Hon'ble Mr. Justice B.P. Jeevan Reddy (as His Lordship then was ) delivering the majority judgment for the Bench in dealing with the question of alternative remedy has laid down the following word of caution which I quote below :
"It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.
46. The same principle is also reiterated by the learned Judge at page 635 of the report which I quote below ;
"So far as the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32 is concerned, it remains unaffected by the provisions of the Act. Even so, the Court would, while exercising the jurisdiction under the said Articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them."
47. Following the aforesaid authoritative pronouncements of the Supreme Court, this Court, this Court is of the opinion that in the instant case when the special law has created a special remedy by providing for a complete machinery than allowing the petitioner a resort to writ Court by passing the said machinery will not be a proper exercise of judicial power by this Court.
48. For the reasons aforesaid, this Court dismisses this writ petition on the ground that the petitioner, has an effective and efficacious alternative remedy, This Court gives an opportunity to the petitioner to challenge the impugned order by filing an appeal before the Appellate Tribunal.
49. It is made absolutely clear that this Court has not made any pronouncement on the merits of the order impugned, namely, the order dated 30-12-1998. The petitioners are at liberty to file an appeal before the Appellate Tribunal within a period of 45 days from today and if such an appeal is filed within the period aforesaid, the appellate authority will consider and dispose of the same on merits by relaxing the period of limitation. But if no appeal within the aforesaid period is filed and filed thereafter the petitioner will have to explain the delay in accordance with law. This writ petition is dismissed with the above observation/direction. There will be no order as to costs.