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5. In the alternative to the aforesaid submission it has been submitted that section 9 pre-supposes a notice of insolvency on the basis of a decree or order for payment which is capable of execution. It is submitted that the order passed by the Debt Recovery Tribunal is not an executable order but only recovery certificate issued on the basis thereof is an executable certificate. Page 1416 Thus, there is no order which is executable so as to satisfy the requirements of sub-section (2) of Section 9 and recovery certificate which is executable is not covered by the words "decree or order" as contemplated under sub-section (2) of Section 9 of the Insolvency Act and, therefore, also the insolvency notice is liable to be set aside. In further alternative to the aforesaid two submissions the learned counsel for the judgment debtor has submitted that the provisions of the Debt Recovery Tribunal is a complete code by itself. He has further relief upon the provision of section 34 of the RDDB Act and by relying upon the said section it has been contended that section 34 of the RDDB Act provides an overriding effect and thus confers a exclusive jurisdiction on the Debt Recovery Tribunal for taking all steps once an application is made for recovery of the amount and thus the recovery and/or execution of the certificate also has to be in accordance with the provisions of section 25 of the RDDB Act and no notice under section 9(2) of the Insolvency Act can be issued by this Court. In support of the aforesaid contention, the learned counsel has relied upon a series of judgments commencing from the judgment of Diwan Brothers v. Central Bank of India and others reported in AIR 1976 SC 1503 and particularly he has relied upon paras 19 and 20 of the said judgment which read as under :

This judgment is on the point whether an award obtained by the petitioner-creditor on the basis of the consent terms is a decree or not within the meaning of section 2(2) of the Civil Procedure Code has been overruled by the Division Bench judgment in the case of Re: Dhirendra Bhanu Sanghvi .. Judgment debtor Ex parte ICDS Limited .. Judgment Creditor reported in 2003 (5) Bom. C.R. 161. However, the learned counsel for the judgement debtor has contended that he is relying upon the said judgment for the proposition of law namely, that when the order is passed in terms of consent terms then it does not amount to an order or a decree as contemplated under section 2(2) and 2(14) of the CPC. He has thereafter relied upon the judgment of the Apex Court in the case of Allahabad Bank v. Canara Bank and Anr. reported in AIR 2000 SC 1535. This judgment has been relied upon by the learned counsel for the judgment debtor in support of his alternative contention that in view of the provisions of the RDDB Act being a complete Code by itself and further in view of the fact that section 34 of the RDDB Act gives an overriding jurisdiction, the provisions of Section 9(2) of the CPC cannot apply and the only remedy of the bank being the judgment creditor is to execute the recovery certificate under Section 25 of the Said RDDB Act. In support of the aforesaid contention he has relied upon paras 23 and 24 of the said judgment which read as under :

8. Thereafter the next contention has been advanced by the learned counsel for the judgment-creditor that the order passed under the provisions of Section 19 of the RDDB Act is an order as contemplated under sub-section (2) of Section 9 of the Act and thus this Court has jurisdiction to issue the insolvency notice. It has been submitted that the recovery certificate is only a form of execution and recovery certificate is not a decision or adjudication of the dispute between the parties. The Debt Recovery Tribunal passes an order for issuance of a recovery certificate after adjudicating the dispute between the parties. Once such an order is passed then issuance of a recovery certificate is a mere formality for the purpose of initiating an execution proceedings. Even the liability of the judgment-debtor stands determined by virtue of the fact that such an order is passed under the provisions of Section 19 of the RDDB Act. It has been further submitted that while construing the provisions of sub section (2) of Section 9 of the Insolvency Act, this Court must take into consideration the purpose and object of enactment of the said Act. It has been submitted that the purpose and object of the enactment of the said Act is an expeditious recovery of money of the various creditors and similarly is the object for the purpose of enactment of the RDDB Act. It has been thus submitted that the provisions of sub-section (2) of Section 9 must not be in derogation of the power of the Debt Recovery Tribunal to recover the amount by execution of a recovery certificate but should be read in addition thereto. And thus it is submitted that the present notice of motion is liable to be dismissed.

13. This leads me to the last contention of the learned counsel for the judgment debtor that RDDB Act is a complete code by itself and all remedies ought to be resorted to only under the provisions of the said Act. The learned counsel's contention is based upon the judgment of the Apex Court in the case of Allahabad Bank v. Canara Bank (supra). However, when the judgment is carefully read it is very clear that the said submission has no merit. In the said judgment the issue was whether in case of liquidation of a company the Tribunal would not have the power to execute the recovery certificate under section 25 of the said Act. In that light of the matter, the Court held that the RDDB being a Code by itself it can execute a recovery certificate and no two stage proceedings are contemplated i.e. adjudication on the one hand by the Tribunal under the RDDB Act and recovery on the other hand through the official Liquidator under the Companies Act. In the present case no such eventualities arise. case. It is nobody's case that the Tribunal has no jurisdiction to execute the recovery certificate under Section 25 of the RDDB Act. However, the contention is that the remedy under sub section (2) of Section 9 is an additional remedy than the remedy available under Section 25 of the Act. In my opinion, it is clear that the provisions of sub-section (2) of Section 9 of the Insolvency Act do not contemplate an execution of a decree in personam but it only is for the benefit of a creditor as a class and the action is in rem. Therefore the argument of the learned counsel for the judgment debtor must be rejected out right. The fact that it is a proceeding in rem is now well established by each of the various judgments which are already cited by me. Thus, once the proceeding is in rem then it cannot be controlled by individual proceedings of recovery of debt of each bank under the RDDB Act. The Apex Court in the case of Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. (supra) though in the context arbitration and winding up proceedings has taken a view that the proceedings in rem are not controlled by the individual recovery proceedings under the individual Act. In the present case the situation is identical. The proceeding under the insolvency is a proceeding in rem and such proceedings in rem are not controlled by the individual proceedings for recovery of the amount under the provisions of the RDDB Act. In that light of the matter, the contention of the learned counsel for the judgment debtor that by virtue of the provisions of section 34 of the Act this Court has no jurisdiction to invoke insolvency proceedings by virtue of the fact that it is based on recovery certificate issued by the Debt Recovery Tribunal has to be rejected. In my opinion, the proceedings in rem cannot be controlled by a individual recovery proceedings which are initiated under the provisions of the RDDB Act. In that light of the matter, there is no substance in the contention advanced by the learned counsel for the judgment debtor and therefore the notice of motion must fail. The notice of motion is accordingly dismissed. Insolvency notice is accordingly made absolute. However, there shall be no order as to costs.