9911796707
TMI Blog2006 (7) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings before the Debts Recovery Tribunal being O. A. No. 305 of 2002 by application dated September 18, 2002. Respondents Nos. 2 to 10 herein were the respondents before the Tribunal. By order dated September 15, 2004, the Debts Recovery Tribunal was pleased to allow the application which included a prayer that Flat No. 902 was validly mortgaged in favour of respondent No. 1, i.e., the Jammu and Kashmir Bank Ltd., and if there was failure to pay the amount to respondent No. 1, respondent No. 1 was entitled to sell the flat. Pursuant to the said order, the Recovery Officer issued recovery certificate dated October 29, 2004. On May 30, 2006, respondent No. 1 moved an application for enforcement of the recovery certificate for attachment of Flat No. 902 and, according to the petitioners, without any notice to them. By order of May 30, 2005, the learned Recovery Officer was pleased to allow the said application. The petitioners' application being Misc. Application No. 52 of 2005 came up for hearing on June 14, 2006. Oral application was made by the petitioners' advocate for stay of allotment of Flat No. 902. That application was neither considered nor granted, according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of flat No. 1002 instead of flat No. 902. On January 25, 1999, a deed of confirmation was entered into by the petitioners thereby registering the agreements dated April 29, 1987, and June 22, 1987, after paying the requisite stamp duty thereon. The society was registered on April 21, 1999. 5. On behalf of the petitioners, their learned Counsel further submits that the only remedy that is available with the petitioners considering that Debts Recovery Tribunal has granted a declaration that there is a valid mortgage, would be under Section 19(25) of the RDB Act, in the absence of any other specific provision. It is pointed out that provisions of Sections 20 and 30 of the RDB Act, would be no effective remedy nor Rule 5A of the Debts Recovery Tribunal (Procedure) Rules, 1993. It is also pointed out that the provisions of Section 29 of the RDB Act which make applicable the provisions of the Second and Third Schedules to the Income-tax Act, 1961, on the facts of this case also would not be available. 6. On the other hand, on behalf of the respondents their learned Counsel submits, that they have documents of mortgage in their favour and in these circumstances this Court ough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cannot be questioned in any court of law other than by way of petition before this Court or any available remedy before the apex court in appropriate cases. As the petitioners are not parties to the proceedings and as it is their case, that the property belongs to them what is the forum available to such parties. 11. We may first gainfully refer to the provisions of the Code of Civil Procedure, i.e., Order 21, Rule 58. Rule 58 specifically provides that if any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the court shall proceed to adjudicate upon the claim or objection in accordance with the provisions as contained therein. Under Sub-rule (2) of Rule 58 - all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceedings or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the court dealing with the claim or objection and not by a separate suit. The proviso to Order 21, Rule 58(1) provides for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. A reading, therefore, of Section 22(2)(e) and Rule 5A(1) would result in holding that the Tribunal or Appellate Tribunal has been conferred the power of review. Rule 5A(1) however uses the expression any party . The expression used in Order 47, Rule 1 of the Code of Civil Procedure is any person . The language in the two statutes, therefore, is different and distinct. In so far as the Code of Civil Procedure is concerned, the language is wider, in that, any person aggrieved can prefer a review whereas in so far as Rule 5A(1) is concerned there it is limited to parties to the proceedings. The power of review therefore conferred on the Debts Recovery Tribunal cannot be exercised by a party other than a party to the proceedings. 14. The next provision which we may gainfully refer to is Section 20 of the RDB Act. Section 20 uses the expression any person aggrieved by an order made, or deemed to have been made, by a Tribunal . In other words, the expression is wider and not limited only to a party to the proceedings. A person other than the party to the proceedings, if the language in Section 20 is considered, would be entitled to prefer an appeal. It could, therefore, be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y available would not be an effective remedy at law. 17. The other remedy which is available in respect of an order passed by Recovery Officer, is Section 30 of the Act. By virtue of Section 30 notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made under the Act has to challenge that order within thirty days. Section 26(1) of the Act will also have to be considered, which reads as under: 26(1). It shall not be open to the defendant to dispute before the Recovery Officer the correctness of the amount specified in the certificate, and no objection to the certificate on any other ground shall also be entertained by the Recovery Officer. 18. In other words, it is not open to the Recovery Officer to go beyond the certificate. The grant of declaration in favour of a financial institution, cannot be gone into by the Recovery Officer. The Recovery Officer having no power to go in that issue, the question of Section 30 being an effective remedy would again be elusive. In our opinion, therefore, the remedy under Section 30 in a case where the Tribunal has given a declaration would again be elusive and non-effective, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was available to the petitioners before it. In that case on the facts we may note that there appears to have been no declaration given by the Tribunal that the property was validly mortgaged. 20. Does the Act provide any remedy to a person like the petitioners. The court while considering the legislation which has created a special mechanism for recovery of dues of financial institution and bearing in mind the various provisions earlier referred which exclude the jurisdiction of other courts and Tribunals will have to examine, whether an effective remedy is available under the Act itself. If a remedy is not available under the Act, a party may have a remedy at civil law. If an aggrieved person was not party to the proceedings before the Debts Recovery Tribunal, and a party to the proceedings has secured a decree, based on a fraudulent document, the jurisdiction of the civil court in such a case normally should not be ousted. For examining whether there is a provision under the Act, let us consider Section 19(25) of the RDB Act, which reads as under: 19(25). The Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
