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TMI Blog2003 (2) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial discipline but also provokes and in a way accelerates the institutional syllogistic rethinking to have a deeper and greater probe into the arena of controversy. The spinal issue spiraled to this Court when the writ petitions were instituted assailing the orders passed by the Debts Recovery Tribunal (in short 'the Tribunal) on the foundation that Debts Recovery Appellate Tribunal (for short 'the Appellate Tribunal') had already pronounced a verdict that against an interlocutory order passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for brevity 'the Act'), no appeal lies. The learned Single Judge felt that a complex situation had surfaced inasmuch as this Court in the case of M/s Earnest Health Care Limited and others Vs. Debts Recovery Tribunal and others (W.P. No. 4955/2000) placing reliance on the decisions rendered in the cases of M/s Kavita Pigments and Chemicals (Pvt.) Ltd. and others vs. Allahabad Bank and others . AIR 2000 Pat 43, M/s Shoes East Ltd. Vs. Allahabad Bank AIR 1997 Del 325 and Bank of India vs. Baroda Cables 1999 ISJ (Bom) 309 had expressed the view that any order passed by the Debts Recovery Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f permission to cross-examine the deponents of the affidavits, but, objecting the procedure adopted by the Tribunal by which it had received the evidence on affidavits. Being dis-satisfied by the aforesaid order, the petitioner knocked at the doors of this Court in W.P. No. 660/2001 in which the petitioner questioned the defensibility of the order passed by the Tribunal and simultaneously raised the issue of validity of the provisions contained in Regulations 31 32 of the Debts Recovery Tribunal Regulation of Practice, 1998 (hereinafter referred to as 'the Regulations') on many a ground. This Court vide order dated 14.2.2001 dismissed the petition holding that the virus had been considered in Writ Petition No. 5262/2000 and the provisions in question have been held to be valid, it is contended that alter passing of the aforesaid order, the petitioners by way of abundant caution filed an application for cross-examination of the deponents as the said prayer was not made in the earlier application. In the application, the petitioners set out the reasons why cross-examination was sought for. The Bank filed a reply in opposition to the said prayer. It is alleged that the praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred by the petitioners therein, namely, M/s Dhar Industries Ltd. and others forming the subject matter of W.P. No. 894 of 2001 was dismissed relying on the earlier judgment passed in W.P. No. 5262/ 2000 (Kishorilal Lumba Vs. Debts Recovery Tribunal and others). He said order was assailed before the Supreme Court and their Lordships of the Apex Court have dismissed the Special Leave Petition in limine. However, for the sake of completeness, we will advert to the same. We reiterate, we are not delving into the niceties and subtleties of the issue whether the said matter can be dealt with in a reference of this nature but as the learned counsel argued for some time, we are inclined to devote some space to put the controversy to rest, more so, in view of the latest Apex Court decision rendered in the case of Union of India and another Vs. Delhi High Court Bar Association and others, AIR 2002 SCW 1347. Thus, three questions emerge for adjudication: (i) Whether interim order passed by the Tribunal is appealable before the Appellate Tribunal? (ii) Whether Regulations 31 32 of the Regulations framed by the Tribunal are invalid and deserve to be so declared? (iii) Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rules which have been pressed into service are absolutely inconsequential as that is in the realm of objective law and that cannot govern the prescription in the main statute. It is also urged by them the Act was enacted with an avowed purpose, and recourse of appeal as provided in the 1994 Rules are to apply mutatis mutandis even in respect of an appeal preferred against the interim or interlocutory order barring an appeal which is referred to under Section 21 of the Act. In support of their contentions, they have placed reliance on the decisions rendered in the cases of Kavita Pigments and Chemicals (Supra), Bank of India vs. Baorda Cables, 1999 ISJ (Ban) 309, Shoes East Ltd. vs. Allahabad Bank (Supra), Sandeep Singh Sandhu Vs. Debt Recovery Tribunal II (1999) BC 556, M.C. Mittal and Others vs. Central Bank of India and Others passed in L.P.A. No. 9/96 decided on 18.1.1996. To appreciate the rival submissions raised at the bar, it is appropriate to refer to the statement of objects and reasons. We are referring to the same only for the purpose of appreciating why the aforesaid Act was enacted by the Parliament and to understand the basic requisite. The enactment was made for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it with that period. On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Tribunal. The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal. Section 21 deals with deposit of amount of debt due, on filing appeal. The said provision reads as under: 21. Deposit of amount of debt due, on filing appeal - Where an appeal is preferred by any person from whom the amount of debt is due to a bank or a financial institution or a consortium of banks or financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal shall not be entertained by the Appellate Tribunal unless the person against whom such declaration has been made makes a deposit of 75% of the amount of debt as determined by the Tribunal under section 19 of the said Act. This requirement of pre-deposit of amount determined is a common feature in many fiscal statutes and the said requirement of pre-deposit is only to be enforced in a case where the determination has been made by the Tribunal under Section 19 of the said Act. Therefore, the expression such appeal has been used. The requirement of such pre-deposit of the amount determined cannot be enforced by the Appellate Tribunal in connection with an appeal where no such determination has been made as is in the instant case. So this point has no substance. In the case of Baroda Cables (Supra), a Division Bench of Gujarat High Court in paragraph 14 held as under: 14. Looking to the above provisions, there is no doubt in our minds that there is no provision in the Act stating that an appeal would lie before an Appellate Tribunal only when the order is final in nature. On the contrary, looking to the above provisions in their entirety, it is clear that any orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to have been made, by a Tribunal under this Act occurring in Section 20 (1) relate to every order of the Tribunal made under the Act which affects the rights and liabilities of the parties. Obviously, any interim order passed under Section 19 (6) of the Act by the Tribunal, if it affects the rights or liabilities of any party, will be subject to appeal under Section 20 (1) of the Act. In the case of M.C. Mittal and others (Supra), a Division Bench of Delhi High Court after referring to Sections 17 and 20 in paragraph 3 expressed the view as under : 3. A reading of sub-clause (2) of Section 20 shows that the Appellate Tribunal shall exercise its powers in relation any order made or deemed to have been made by the Tribunal. 'The words any order' would include interlocutory orders which substantially affect the rights of the parties and those words are not confined to the final disposal of the application filed under Section 19. Similarly, sub-clause (1) of Section 20 reads the words an order and that would also mean that an appeal lies against interim orders which substantially affect the rights of the parties and those words are not confined to an order whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appeal lies to the Rent Control Tribunal from every order passed by the Controller under the Act. Even an interlocutory order passed under S. 37 (2) is an order passed under the Act and is subject to appeal under S. 38 (1) provided it affects some right or liability of any party. Thus, an order of the Rent Controller refusing to set aside an exparte order is subject to appeal to the Rent Control Tribunal. Similar considerations have induced the Courts to give a limited construction on the apparently wide words of other statutes conferring rights of appeal. Section 202 of the Indian Companies Act, 1913 confers a right of appeal from any order or decision made or given in the matter of the winding up of a company by the Court. In Shankarlal Agarwal v. Shankarlal Poddar , (196) 1 SCR 717 at p. 736 (AIR 1965 SC 507 at p. 514) this Court decided that these words, though wide, would exclude merely procedural orders or those which did not affect the rights or liabilities of parties. After noticing the aforesaid pronouncements, we think it condign to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o an appeal preferred after final adjudication and determination of the same by the Debts Recovery Tribunal. Rule 8 deals with fee qua an appeal under Section 20. We are not are not impressed by the submission of Mr. Shrivastava that it is only Section 20 which confers the power on the Tribunal to entertain an appeal. Section 17(2) uses the word any order made and Section 20 (1) uses the word an order made . Though Mr. Shrivastava has made herculean endeavour to point out the difference between the terminology used in Section 17 and Section 20 on the backdrop that in one provision the word 'an' is used and in another provision the word 'any' is used. There is no difference between the two terms, namely an' and 'any'. If the words used are understood in proper perspective taking into consideration the text and the context, we are of the considered view that the expressions used in Section 17 and 20 are not repugnant to each other. In fact, they point out to a complete harmonious whole leading to a specific, precise, appropriate destination i.e. the tenability of appeal from an order or any order. The distinction which is sought to be drawn by Mr. Shriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application for interlocutory order ₹ 10 Vakalatnama ₹ 5] The words used here are 'debts due' and the words used in the Appellate Rules are 'amount of debt due'. Unless the competent authority, namely, Central Government frames a different set of rules, in our considered view, the fee structure provided under Rule 8 of the Appellate Tribunal Rules would apply on all fours to all category of appeals. Any litigant who intends to have the luxury of preferring an appeal has to be guided by the procedure prescribed. He cannot be allowed to dictate terms and put forth a spacious pronouncement that he has to pay a less fee or for that matter the fee provided under Rule 8 is only applicable to appeals preferred against the final adjudication but not against the interim orders. The acceptation of this nature would defeat the science of interpretation. Judged from all this angle, we are inclined to hold that an appeal lies against any order or an order which substantially affect some rights or liabilities of the party and is not confin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the considered view a detailed deliberation on that score is totally unwarranted. Mr. Shrivstava has drawn our attention to few aspects from the aforesaid decisions. Relying on the decision rendered in the case of Punjabrao (Supra), Mr. Shrivastava has contended that unless the evidence is challenged in cross-examination, the same is to be accepted in entirety. He has also referred us to the decision rendered in the case of Smt. Sudha Devi (Supra) to highlight that the affidavits are not included in the definition of evidence in S.3 of the Evidence Act and can be used as evidence only if for sufficient reason Court passes an order under 0.XIX, Rule 1 or 2 of the Code of Civil Procedure. The leaned counsel has laid emphasis on paragraphs 12 and 14 of the decision rendered in the case of Virendra Kumar Saklecha (Supra) to highlight that an opportunity has to be given to the other side to test the genuineness and veracity of sources of information. The learned counsel has commended to the decision rendered in the case of Kalpnanaben M. Shah and others (Supra) to show that the right of cross-examination cannot be throttled or thwarted. He has also drawn inspiration from the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re necessary to be reproduced. 17. The very purpose of establishing the Tribunal being to expedite the disposal of the applications filed by the banks and financial institutions for realization of money, the Tribunal and the Appellate Tribunals are required to deal with the applications in an expeditious manner. It is precisely for this reason that S. 22 (1) stipulates that the Tribunal and the appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure. Therefore, even though the Tribunal can regulate its own procedure, the Act requires that any procedure laid down by it must be guided by the principles of natural justice while, at the same time, it should not regard itself as being bound by the provisions of the Code of Civil Procedure. On behalf of some of the respondents, it was contended that on a correct interpretation of R. 12 (6) of the Debts Recovery Tribunal (Procedure) Rules. 1993. wherever any party desires the production of a witness for cross-examination, then his evidence could not be taken by way of affidavit but it would be mandatory for the Tribunal to require the production of the witness. It was submitted that this pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des that the Tribunal may. at any time, for sufficient reason order a fact to be proved by affidavit or may pass an order that the affidavit of any witness may be read at the hearing. It is in the proviso to this sub-rule that a reference is made to the cross-examination of witnesses. In other words, the Tribunal has the power to require any particular fact to be proved by affidavit, or it may order the affidavit of any witness may be read at the hearing. While passing such an order, it must record sufficient reasons for the same. The proviso to R. 12 (6) would certainly apply only where the Tribunal chooses to issue a direction, on its own, for any particular fact to be proved by affidavit or the affidavit of a witness being read at the hearing. The said proviso refers to the desire of an applicant or defendant for the production of a witness for cross-examination. In the setting in which the said proviso occurs, it would appear to us that once the parties have filed affidavits in support of their respective cases, it is only thereafter that the desire for a witness to be cross-examined can legitimately arise. It is at that time, if it appears to the Tribunal, that such a wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunals may summon the deponent for cross-examination. Consequently, it can be said that sub-section (4) of section 19 does not contemplate oral evidence. It is only in exceptional or in special circumstances looking to the nature of the facts and the Tribunals being satisfied on pleas being raised before it that oral evidence/ cross examination may be resorted to and provisions of Code of Civil Procedure 1908 have limited application in areas the Act prescribes and where some of its principles may be found helpful which are not inconsistent with the Act and the rules. Similar view has been taken by this Court in the decisions in W.P. No. 2694 of 2000 (M/s. Kishorilal Loomba Cold Retreads Pvt. Ltd. and others vs. Bank of India and another) dated 21.7.2000, W.P. No. 4475 of 2000 (M/s Shree Santoshi Pipe works and others vs. Debts Recovery Tribunal and others) dated 9.8.2000, W.P. No. 4764 of 2000 (M/s Maheshwari Agencies and another vs. Debts Recovery Tribunal, Jabalpur and others) dated 19.8.2000 and W.P. No. 4775 of 2000 (Omprakash Mantri vs. Debts Recovery Tribunal and others) dated 19.8.2000. In the aforesaid background, statement that Regulations 31 and 32 of the Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imacy of the power of Courts within constitutional democracies to review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism, has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. (#) These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior Courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior Courts would be insulated from any executive or legislative attempts to interfere with the making of their decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court held as under: A provision like Section 128 of the U.P. District Boards Act for an appeal against an assessment to tax is there, but the fact that the petitioner has not availed of it, does not oust the jurisdiction of the High Court to entertain a petition under Article 226 and it is for the High Court to exercise its discretion whether to entertain the petition or not. Where there is nothing to show that the discretion has not been properly exercised by the High Court the Supreme Court would not interfere. In the case of Champalal Binani vs. The Commissioner of Income Tax, West Bengal and others , AIR 1970 SC 645 the Apex Court ruled thus: ...A writ of certiorari is discretionary: it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is settled practice of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly. In this regard, the decision rendered in the case of M/s Shiv Shanker Dal Mills vs. State of Haryana and others AIR 1980 SC 1037 is worth noting. In the aforesaid decision, their Lordships spoke thus: Where public bodies, under color of public laws, recover people's money, later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without jurisdiction as a pre-condition therefore of consultation with the financing bank of the society has not been satisfied, the bar of Art. 226 (3) cannot be invoked by saying that alternative remedy of revision and appeal is available against the final order of supersession. In the case of Kamla Kanta vs. O.S. Board of Homeopathic Medicine, Bhubaneswar , AIR 1988 Ori 82, another Division Bench of the High Court of Orissa has expressed the opinion in the following terms: It has been authoritatively held in a series of decisions of the Supreme Court as well as of this Court that the prohibition to grant relief under Art. 226 of the Constitution of India when an alternative remedy has not been resorted to is only a self-imposed limitation adopted more for the necessity of propriety than as a mandatory requirement of law and that such a policy has no application where the act complained of is that of violation of the principles of natural justice, or one of lack of jurisdiction. Even apart from it. nothing prevents the prerogative of the High Court to issue a writ of certiorari in a fit case where recourse to the alternative remedy would be unnecessary, lengthy and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cising such power under the Constitution the Court is required to keep in view certain factors. As has been noticed when an order is passed without jurisdiction or when principles of natural justice are violated or when the virus of an Act is challenged, or where enforcement of any of the fundamental right is sought or where a pure question of law arises or where a strong case has been made out the Court may exercise the discretion. It is further noted that the Apex Court has also observed that the grounds are not exhaustive. No strait-jacket formula can be laid down. It will depend upon the facts of each case. In view of the aforesaid pronouncement of law, it is discernible that list is not exhaustive but only illustrative. It would depend upon the facts and circumstances of each case. In the present case, we are of the considered opinion, the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is not warranted to be exercised. If the rights or liabilities of the petitioners have been substantially affected, they may approach the Tribunal. However, as the writ petition was pending before this Court, we can only grant leave to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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