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TMI Blog2016 (3) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to such appeal and dispose of the same preferably before 31.8.2016. The interim formula granted by this Court earlier shall inure till 31.8.2016. If thereafter the appeal is not disposed of, it would be open to the petitioners to apply before the DRAT for further relief. - SPECIAL CIVIL APPLICATION NO. 18446 of 2013 - - - Dated:- 17-2-2016 - MR. AKIL KURESHI AND MR. Z.K.SAIYED, JJ. FOR THE PETITONER : MR MASOOM K SHAH, ADVOCATE, MR VISHWAS K SHAH, ADVOCATE FOR THE RESPONDENT : MR DEVANG VYAS, ADVOCATE, MR MAULIK N SHAH, ADVOCATE, MR SS PANESAR, ADVOCATE, MR. PARTH H BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioners have challenged the judgment dated 29.11.2013 passed by the Debts Recovery Appellate Tribunal, Mumbai ( DRAT for short) in following background; 2. The petitioners are borrowers. Having taken loan from the respondent No.1 Dena Bank, they failed to repay the same. Dena Bank therefore filed Original Application No.319 of 1998 before he Debt Recovery Tribunal, Ahmedabad ( DRT for short) for recovery of such unpaid dues with interest. In such Original Application the DRT passed a decree for a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.09.09. Copy of this order be given to all concerned free of cost. 3. On 23.9.2009, the Recovery Officer passed following order : Present proxy advocate for the CH Bank and the successful auction purchaser. The successful purchaser has deposited a DD No.640500 dated 23.9.2009 an amount of ₹ 5000 towards 25% of the bid amount for the immoveable property at Lot no.1. Successful auction purchaser is directed to deposit the remaining amount of ₹ 15,75,000 towards 75% of the bid amount and amount of ₹ 21,060 towards the Poundage fees auctioned by 22.9.2009. The matter is adjourned to 6.10.2009. 4. The said order dated 22.9.2009 was challenged by the petitioners before the DRT, Ahmedabad, by filing appeal under Section 30 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 ( RDDB Act for short). The petitioners raised three contentions before DRT in such appeal, (1) that the proclamation notice for auction was affixed on 2.9.2009 and the auction was conducted on 22.9.2009 which was less than 30 days of statutory period provided under the rules; (2) that the valuation report was not served on the petitioners and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 29.11.2013 dismissed the appeal solely on the ground that against the order passed by the Recovery Officer on 22.9.2009 appeal under Section 30 of the RDDB Act was not maintainable before the DRT. The Appellate Tribunal was of the opinion that the Recovery Officer had not passed any adjudicatory order. Such order did not decide the rights and liability of the parties and, therefore, the same cannot be treated as an order in strict sense of the term for the purpose of Section 30 of the RDDB Act. It is this order of the Appellate Tribunal that the petitioners have challenged in this petition. 7. Appearing for the petitioners, learned advocate Shri Vishwas Shah contended that the DRAT committed serious error in rejecting the appeal of the petitioners on the ground that against the order of Recovery Officer no appeal was maintainable. He submitted that in terms of Section 30 of the RDDB Act, against any order passed by the Recovery Officer an appeal would be available before the DRT. The term order has not been defined under the Act and must therefore be appreciated in the context of the provisions contained in the RDDB Act. He submitted that in the process of accepting the sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 3. Learned Counsel Mr.Shalin Mehta appearing for respondent No.2 successful bidder also opposed the petition contending that Section 30 of the RDDB Act does not refer to any order passed by the Recovery Officer and uses the expression an order , thus the legislature has consciously limited the expression under Section 30 of the RDDB Act. In the present case, the order passed by the Recovery Officer did not decide any lis between the parties and was therefore not appealable as rightly held by the DRAT. He lastly contended that even if the appeal is held to be maintainable, in view of the fact that the DRT has examined the contentions of the petitioners on merits, the matter may be remanded before the DRAT for decision on merits since the DRAT has not gone into such aspects. 4. Having thus heard learned counsel for the parties and having perused documents on record the sole and short controversy needed to be resolved in this petition is whether against the order dated 22.9.2009 passed by the Recovery Officer an appeal under Section 30 of the RDDB Act was maintainable before the DRT. Under such order, the Recovery Officer accepted the offer of the respondent No.2 of purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay require such person to deduct from the said amount, the amount of debt due from the defendant under the Act and such person shall comply with any such requisition and shall pay the sum so deducted to the credit of the Recovery Officer. 8. Section 29 of the RDDB Act pertains to application of certain provisions of the Incometax Act which reads as under : 29. Application of certain provisions of Incometax Act The provisions of the Second and Third Schedules to the Incometax Act, 1961 and the Incometax (Certificate Proceedings) Rules, 1962, as in force from time to time shall, as far as possible, apply with necessary modifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of to the incometax. Provided that any reference under the said provisions and the rules to the assessee shall be construed as a reference to the defendant under this Act. 9. Section 30 pertains to appeal against the order of Recovery Officer which reads as under : 30. Appeal against the order of Recovery Officer (1) Notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose interests are affected by the sale, may, at any time within thirty days from the date of the sale, apply to the Tax Recovery Officer to set aside the sale, on his depositing (a) [***] the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered, with interest thereon at the rate of [fifteen] per cent per annum, calculated from the date of the proclamation of sale to the date when the deposit is made; and (b) for payment to the purchaser, as penalty, a sum equal to five per cent of the purchase money, but not less than one rupee. (2) Where a person makes an application under rule 61 for setting aside the sale of his immovable property, he shall not, unless he withdraws that application, be entitled to make or prosecute an application under this rule. 14. Rule 61 pertains to an application to set aside the sale of the immovable property on the ground of nonservice of notice or irregularity and reads as under : Application to set aside sale of immovable property on ground of nonservice of notice or irregularity. 61. Where immovable property has been sold in execution of a certificate, [such Incometax Officer as may be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the said Act. This provision contained in Subsection (1) of Section 30 starts with non obstante clause and provides that such right of appeal would accrue, notwithstanding anything contained in Section 29. Thus, irrespective of any remedy available to a defaulter in terms of Rules 60 and 61 of the 2nd Schedule to the Incometax Act, he would also have a remedy of appeal to the DRT against an order passed by the Recovery Officer under the Act. Subsection (2) of Section 30 lays down the scope of the Tribunal while entertaining such an appeal and provides that the Tribunal may, after giving an opportunity to the appellant to be heard and after making such an inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under Sections 25 to 28 of the Act. This specific reference to an order passed by the Recovery Officer in exercise of his powers under Sections 25 to 28 of the Act would emphasis that the Debt Recovery Tribunal would entertain an appeal against an order passed by the Recovery Officer in the process of carrying out the recoveries in terms of Sections 25 to 28 of the RDDB Act. We may recall that Section 25 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely springs from the record is that Section 25 of the RDDB Act permits the Recovery Officer three modes of recoveries including attachment and sale of movable and immovable property of the defaulter. Publication and proclamation of the conducting auction which would include obtaining valuation and fixing upset price, some of the important stages of sale by auction of any movable or immovable property. If the defaulter has fundamental objection to any of these aspects which would go to the root of the matter his right to question the very auction on such basis would certainly arise when the Recovery Officer proceeds on such defective foundation. For all these reasons, we are of the opinion that the DRAT committed serious error in holding that the petitioners appeal under Section 30 of the Act was not maintainable. 19. We may refer to the decisions cited by the counsel. In case of Delhi High Court Bar Association (Supra) the Supreme Court while upholding the vires of the RDDB Act and reversing the decision of the Delhi High Court noticed that, Section 30 of the RDDB Act by virtue of Amendment Act in the year 2000, gives a right to any person aggrieved by an order of the Recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in which the auction is conducted and the sale is confirmed would also be appealable in terms of Section 30 of the RDDB Act. 23. In case of Sadashiv Prasad Singh (Supra) in para 23.3 on which heavy reliance is placed by the counsel for the petitioners the Supreme Court observed that, a remedy of appeal was available to Harender Singh in respect of the order of the Recovery Officer assailed by him before the High Court under Section 30. However, such order was final confirmation of sale and not any interlocutory order for action taken by the Recovery Officer during the process of conducting the auction sale. Availability of remedy and nonavailing of such remedy by the defaulter were some of the grounds pressed by the Supreme Court for reversing of the judgment of the High Court. 24. In case of Sanjay Singh and another (Supra), in para9 in the context of Civil Procedure Code, the Supreme Court highlighted the distinction between the decree and order. However, these are not the issues in the present petition. 25. In the case of Divisional Forest Officer, Eluru (Supra), the Division Bench of Andhra Pradesh High Court in the context of term order made certain significant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it a special meaning in order to distinguish it from a decree. 27. In case of Kanhikkamthoppu Parambil Radha (Supra), the learned Single Judge rejected the contention of the counsel that the order mentioned in Section 19(5) of the Guardians and Wards Act would be only one which is a final order. 28. It can thus be seen that various Courts have referred to the term order as being one which need not necessarily finally decide the rights and liabilities of the parties. In the context of the Civil Procedure Code term order is used in juxtaposition to a decree, however, in common parlance often times the terms order, decision and judgment are used interchangeably. As rightly pointed out by the counsel for respondent No.2, in case of Ashutosh Shrotriya (Supra) Full Bench of Allahbad High Court noticed the distinction made by the Supreme Court between various kinds of orders in Midnapore Peoples Coop. Bank Ltd., vs. Chunilal Nanda (2006) 5 SCC 399 which as under : (i) Where the High Court in a contempt proceedings renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether that would be appealable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. Seen from such context, undoubtedly the order passed by the Recovery Officer on 22.9.2009 has vital bearing on the rights of the petitioners. As long as the order that Recovery Officer may pass in exercise of powers under Sections 25 to 28 of the RDDB Act and which acts prejudicially or is injurious to a person, such person would be a person aggrieved. An appeal at the hands of such person would be maintainable under Section 30 of the Act. 31. As noticed earlier, DRT had dismissed the appeal after taking into account the objections of the petitioners also. Since it is pointed out that the bank is attempting to recover the dues of the defaulters since long without success, we would instead of relegating the proceedings to the DRT, place it before the DRAT for decision on the appeal of the petitioners on merits. We would request the DRAT to give priority consideration to such appeal and dispose of the same preferably before 31.8.2016. The interim formula granted by this Court earlier shall inure till 31.8.2016. If thereafter the appeal is not disposed of, it would be open to the petitioners to apply before the DRAT for further relief. 32. The petition is disposed of. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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