Rajasthan High Court - Jaipur
Hansraj Mahajan And Sons And Ors. vs Punjab National Bank And Ors. on 13 January, 1999
Equivalent citations: 1999WLC(RAJ)UC289, 1999(1)WLN117
Author: P.P. Naolekar
Bench: P.P. Naolekar, Gyan Sudha Misra
JUDGMENT P.P. Naolekar, J.
1. The learned Counsel for the petitioner prayed for deletion of the following paragraphs from the petition on the ground that those paragraphs are not relevant for the decision of the writ petition:
2. In para at page 7 from "However, the Tribunal in its wisdom" upto "dated 10th June, 1997" and in para 4 at page 9 from 'That as stated above" upto "to the Recovery Officer".
3. The aforesaid portion/paragraphs shall stand deleted from the allegations of the petition.
4. With the consent of the parties this matter is finally heard.
5. The petitioner-company is a Private Limited Company registered under the Companies Act, 1956. The New Bank of India has sanctioned and granted certain loans in favour of M/s Hans Raj Mahajan & Sons Pvt. Ltd. A suit was filed for recovery of amount of Rs. 15,68,439.72 alongwith interest in the Court of Senior Sub Judge, jalandhar City. Certain witnesses of the plaintiff-bank were examined before the Civil Court. In the meantime the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter to be referred as "the Act") was promulgated and, as the provisions made in the Act, the case was transferred to Debts Recovery Tribunal, Jaipur, by the Civil Court by its order dated 10th May, 1996. As per the order sheet the parties were required to appear before the Tribunal on 10th June, 1996 at Jaipur.
6. It is alleged by the petitioner that On 10th June, 1996 the file did not reach to the Tribunal and therefore, the matter was taken up on 12th June, 1996. The petitioner did not appear on that date and on further dates later on, the Tribunal proceeded ex-parte and the ex-parte decree was passed en 12th August, 1997. The petitioner filed an application for setting-aside the ex-parte decree on the ground that the Tribunal proceeded ex-parte and passed the ex-parte decree without service of notice on the petitioner. The application for setting aside the ex-parte decree filed by the petitioner was dismissed by the Debts Recovery Tribunal by its order dated 4th August, 1998.
7. Aggrieved by the said order, the petitioner directly approached this Court by filing a writ petition whereby he has challenged the order passed by the Debts Recovery Tribunal refusing to set aside the ex-parte decree. Alongwith that challenge, the petitioner has also challenged certain provisions of the Act, 1993 and the Regulations made by the Tribunal in the year 1997.
8. This Court admitted the petition and granted stay in the terms that in the meantime and until further orders the property of the petitioner, if attached, shall not be sold on 26.8.1998. After service of notice, the respondent No. 1 entered appearance and filed an application under Article 226(3) of the Constitution of India for vacating the ex-parte stay granted by this Court.
9. It is submitted by the counsel for respondent No. 1 that the petitioner has an alternative efficacious remedy before the Debts Recovery Appellate Tribunal under Section 20 of the Act, 1993 and thus, this writ petition is not maintainable. Section of the Act is very clear wherein it has been provided that the persons aggrieved by any order made or even deem to have been made by the Debt Recovery Tribunal under the Act may prefer an appeal to the Appellate Tribunal having the jurisdiction in the matter. The remedy of filing an appeal against the order made by the Debts Recovery Tribunal or even the order deem to have been made is in absolute terms and it is for the petitioner to challenge an order of the Debts Recovery Tribunal before the Appellate Tribunal whereby the ex-parte decree was refused to be set aside. Counsel for the petitioner submits that although there is a provision of appeal made under Section 20 of the Act in fact the Appellate Tribunal is not manned and thus, filing of appeal would be a futile exercise as he will not be able to obtain any orders of stay in the matter in which the Bank is taking steps to execute the ex-parte decree granted against him. We can well appreciate the position of the petitioner whereby although he is required to file an appeal before the Appellate Tribunal, but the immediate remedy of obtaining interim relief from the Appellate Tribunal is not available to him because the person is not being nominated as an Appellate Authority.
10. In view of the aforesaid circumstances, we are of the view that it would be appropriate and accordingly we direct that petitioner shall approach the Appellate Tribunal by filing an appeal under Section 20 of the Act, 1993 alongwith the stay application and the Bank shall not proceed in execution by selling the property already under attachment until the application of stay is not heard by the Appellate Tribunal. The appeal shall be preferred within three weeks from today and if no appeal is filed within three weeks, the order granting stay to the petitioner shall stand vacated.
11. It is then submitted by Mr. Jain, counsel for the petitioner, that he has also challenged the constitutional validity of the Act of 1993 and the Regulation framed thereunder and if this petition is disposed of, he shall be debarred to challenge these provisions on the principle of res judicata. Submission has merit and therefore, while disposing of the petition we permit Mr. Jain to file a separate writ petition challenging the vires of the Act of 1993 and the Regulation framed thereunder.
12. The petition stands disposed of.