9911796707
TMI Blog2003 (10) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... ssentially, the challenge of the Petitioners is to the correctness of the appellate order dated 21st February, 2003, the two orders dated 13th and 16th January, 2003 passed by the Recovery Officer having merged with the appellate order. We may mention, en passant , that the Petitioners had earlier challenged the correctness of the order dated 16th January, 2003 by filing CW No. 526 of 2003. That writ petition was disposed of on 21st January, 2003, inter alia, on the statement of learned counsel for the Petitioners that his clients would appeal against the order dated 16th January, 2003 to the Tribunal. Consequently, there can be no dispute that what is really in question before us is the correctness of the order dated 21st February, 2003 passed by the Tribunal. 4. Petitioner No. 1 is a company. Petitioner Nos. 2 and 3 and Respondent Nos. 2 and 3 are shareholders of Petitioner No. 1. There seem to be some inter se disputes between these shareholders of Petitioner No. 1 but we are not concerned with their disputes. Suffice it to say that for the purposes of the present writ petition, it is assumed that Petitioner Nos. 2 and 3 have the authority to file this writ petition on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the writ petition on 6th and 28th August, 2nd to 5th, 15th, 17th, 18th and 23rd September, 2003 it appeared that the preliminary objection raised by Respondent No. 1 merited serious consideration, the preliminary objection being that the Petitioners have an alternative remedy by way of an appeal against the order dated 21st February, 2003 to the Debts Recovery Appellate Tribunal (for short the Appellate Tribunal ) constituted under the provisions of section 8 of the Act. This being the position, in brief, we then heard learned for the parties on the preliminary objection raised by learned counsel for Respondent No. 1. 12. Recovery Officer is defined in the Act in section 2( k ) as an officer appointed by the Central Government under section 7(1) for each Debts Recovery Tribunal. On a reading of section 7(1) of the Act, it is quite clear that a Recovery Officer is a member of the staff of the Debts Recovery Tribunal (including the Tribunal in the present case). In terms of section 7(2), the Recovery Officer shall discharge his functions under the general superintendence of the Presiding Officer of the Tribunal. 13. The jurisdiction, power and authority of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of the appeal." 16. Having heard learned counsel for the contesting parties, we are of the view that the writ petition filed by the Petitioners ought not to be entertained and that the Petitioners ought to be relegated to the alternative remedy of filing an appeal under the provisions of section 20 of the Act before the Appellate Tribunal against the order dated 21st February, 2003 passed by the Tribunal. Learned counsel for the Petitioners contended that there is no remedy of an appeal available to his clients. 17. Learned counsel for the Petitioners submitted that if the statute does not provide for the filing of an appeal, on Court could create such a right in a litigant. Reliance in support of this proposition was placed on State of Haryana v. Maruti Udyog Ltd. [2000] 7 SCC 348 and A.R. Antulay v. R.S. Nayak [1988] 2 SCC 602. Quite naturally, the proposition is unexceptionable. Elaborating further, learned counsel submitted that section 30 of the Act, as it now is (and quoted above) was incorporated in the statute by an amendment to the Act in 2000. Prior to its amendment in 2000, section 30 read as under: "30. Orders of Recovery Officer to be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver." This was cited (without disagreement) by the Constitution Bench in Punjab Land Development Reclamation Corpn. Ltd. v. Presiding Officer [1990] 3 SCC 682. Therefore, on a consideration of the law placed before us, we have no doubt that a second appeal is maintainable against the orders of the Recovery Officer dated 13th and 15th January, 2003. 21. The omission of the words "and an appeal against such shall lie to the Appellate Tribunal" in section 30 of the Act (as it now stands) is a necessary concomitant of the overall amendment made in 2000 to section 30 of the Act which actually worked to the advantage of a litigant inasmuch as it provided for an additional appellate forum. This was noticed by the Supreme Court in Union of India v. Delhi High Court Bar Association [2002] 4 SCC 275. Prior to the amendment of the Act in 2000, only one appeal was provided for against an order of the Recovery Officer, and that appeal lay to the Appellate Tribunal; whereas since 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court said: 5. "In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ( the Act ). The High Court ought not to have exercised its jurisdiction under article 227 in view of the provision for alternative remedy contained in the Act...." (p. 570) The Supreme Court further dealt with this issue and explained in the report as under: 6. "The act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exerci ..... 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