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TMI Blog2007 (6) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide for the establishment of Tribunal for expeditious adjudication and recovery of debts due to banks and financial institutions and for matters connected therewith or incidental thereto. The resources of the Banks and Financial Institutions are backed by public deposits, public borrowings and budgetary allocations. Being public funds, they are required to have a special procedure to enforce their own demands. Since the emphasis is on the recovery of dues, the legislature has provided a special machinery for such recoveries, but those procedure are more or less akin to the procedure prescribed under the Code of Civil Procedure and the provisions of the Income-tax Act. 4. The expression debt is defined under section 2( g ) of the Act to mean any liability (inclusive of interest) which is claimed as due from any person by a bank or financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned or whether payable under a decree or order of any civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant. In order to recover the debts due from the defendants, the recovery officer has to attach and sell the movable and immovable property and for protection and preservation of the same, he has the power to appoint a receiver for the management thereof. Modes of recovery specified in clauses ( a ), ( b ) and ( c ) of section 25 of the Act are alternative modes and not exclusive of each other and it is open to the Recovery Officer to resort to one or more of the modes. The use of the expression by one or more modes mentioned below makes it clear that the Legislature has, with a view to ensure that the dues payable under the Act are recovered, empowered the Recovery Officer to resort to one or all of the modes for recovery of the arrears. 9. Section 28 of the Act provides the other modes of recovery, where a certificate has been issued to the recovery officer under sub-section (7) of section 19, the recovery officer may without prejudice to the modes of recovery specified in section 25, recover the amount of debt by any one or more of the modes provided under this section. Proviso to section 28(2) says that nothing in this sub-section shall apply to any part of the amount e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a recovery under section 25, 28, or 29 of the Act, particularly because the proceedings before the Tribunal and, likewise, the proceedings of recovery or other judicial proceedings which have to be informed with settled cannons of justice, equity and good conscience. 12. Having seen the relevant provisions, now it is desirable to refer to the observations made by the Apex Court while considering the vires of the Debts Recovery Tribunals Act in the case of Union of India v. Delhi High Court Bar Association [2002] 4 SCC 275 1 . The Delhi High Court in Delhi High Court Bar Association v. Union of India AIR 1995 Delhi 323, has struck down the appointment of the Recovery Officer and the modes of recovery of debts under sections 25 and 28(1) and (2) as being arbitrary, unreasonable and without any guidelines, control etc. The Apex Court, while reconsidering the view expressed by the Delhi High Court has noticed that while section 25 provides the modes of recovery of debts either by attachment and sale or arrest or appointment of a receiver, section 28 provides for the modes of recovery in addition to the ones specified in section 25. A perusal of the aforesaid provisions c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill elevate a man to higher levels that are angelic. Our tradition and culture is to worship a woman and a culture which worships women can never abuse them. In Manusmriti s verse, it is said, where women are worshipped there Gods rejoice . 14. Now we refer to the decisions which prompted the learned Judge to refer this matter for consideration and decision by a larger Bench. The first one is the decision of this Court in the case of Cyril Britto v. Union of India 2003 (2) KLT 879. The question that was posed before the Court was whether the provision under section 56 of the Code of Civil Procedure which protects women from arrest or detention in execution of money decree is ultra vires of Articles 14 and 15 of the Constitution of India. The court after detailed deliberation of the issue involved in the proceedings was pleased to observe: "Under the Code it is permissible to arrest and detain a woman who violates an injunction. It is also permissible to attach her property in case she does not carry out her obligations under a decree for restitution of conjugal rights. In both the situations, she faces the consequences of her own actions. However, keeping in view the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection to a woman. This observation, in our view, was made by this Court in the context of considering the vires of section 56 of Code of Civil Procedure and not with specific reference to recovery of dues from the defaulters under the Debt Recovery Tribunals Act. Secondly, the learned Judges have tried to justify the arrest of women by keeping in view the object and Preamble of the Debt Recovery Tribunals Act. In our view, where the language of the statute is clear, the Preamble of the Act cannot be invoked to curtail or restrict the scope of an enactment and it is also true, where the meaning of an enactment is not clear, the Preamble of the Act may be resorted to explain it. A Preamble though a key to open the mind of the legislature cannot be used to control or qualify the precise and unambiguous language of the enactment. It is only in case of doubt or ambiguity that recourse may be had to the Preamble to ascertain for the enactment in order to discover the true legislative intendment to ascertain the reasons for the enactment. 16. Now, coming to the discussion made by the learned Judges, they would commence with a statement that it is true that section 25 of the Act does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds no elaborate discussion to hold that in any case, in that process, if the judgment-debtor is a woman, she cannot be arrested. We will end it up by concluding that the provisions of the Act must receive an object oriented interpretation and not a pedantic approach. We fail to understand the reasoning of the learned Judges whose thinking has proceeded on the sole ground that when a lady takes a substantial amount of money from a public institution, she is also liable for the same process as any other judgment-debtor. This reasoning of the learned Judges is firstly contrary to the provisions of the Act and more so contrary to our culture and ethos. 18. In Mary Chacko v. Jancy Joseph 2005 (3) KLT 925 (Ker.). The question before the court was whether a woman can be arrested in execution of an order passed under section 27 of the Consumer Protection Act, 1986. In the said case, two issues were raised before the Court. One was for a declaration that section 27 of the Consumer Protection Act, 1986 is ultra vires and unconstitutional and for a declaration that the petitioner being a woman cannot be arrested and detained by the consumer forum in exercise of the powers under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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