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PATNA HIGH COURT
Asok Kumar Ganguly, J.
Kavita Pigments And Chemicals (Pvt.) Limited
Versus
Allahabad Bank
Civil Writ Jurisdiction Case No. 2373 of 1999 ;
Decided On : AUGUST 26, 1999
RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993 - APPEAL - INTERLOCUTORY ORDER - MAINTAINABILITY - WRIT PETITION - JURISDICTION - ALTERNATIVE REMEDY - PRINCIPLES.
Fact of the Case:
The petitioner filed a writ petition challenging the order of the Debt Recovery Tribunal, Patna, dismissing the petitioner's application for cross-examination of the witnesses of the respondent bank. The petitioner contended that the impugned order was passed in violation of the principles of natural justice and that the writ petition was maintainable without exhausting the statutory remedy of appeal.
Finding of the Court:
The Court held that an appeal lies against an interlocutory order passed by the Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The Court further held that the writ petition was not maintainable as the petitioner had an effective and efficacious alternative remedy by way of an appeal to the Appellate Tribunal.
Issues: 1. Whether an appeal lies against an interlocutory order passed by the Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993? 2. Whether a writ petition is maintainable when the petitioner has an effective and efficacious alternative remedy by way of an appeal to the Appellate Tribunal?
Ratio Decidendi: 1. The Court held that the language of Section 17(2) read with Section 20(1) of the Act makes the provisions relating to the right of appeal from an interlocutory order so clear and unambiguous that no other construction is possible. The Court further held that any other construction would bring about great injustice to the extent of depriving the litigant of his substantive right of appeal against an interlocutory order when the law gives him such a right. 2. The Court held that when a special law has created a special remedy by providing for a complete machinery, allowing the petitioner a resort to the writ Court by passing the said machinery will not be a proper exercise of judicial power.
Final Decision: The Court dismissed the writ petition on the ground that the petitioner had an effective and efficacious alternative remedy by way of an appeal to the Appellate Tribunal.
1. This writ petition has been filed for quashing the order dated 30-12-1998 passed by the Debt Recovery Tribunal, Patna in O.A. No. 4/97.
2. It appears that an application under Sec. 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter called the said Act) was filed against the petitioner by respondent No. 1 which is Allahabad Bank, Bokaro Steel City Branch, Naya More, Bokaro, Bihar (hereinafter called the said Bank). In the said application the said Bank as an applicant has made out a case that the petitioner No. 1, a Company incorporated under the Indian Companies Act, 1956 having its registered office at Bakaro, approached the said Bank through its Director for Cash credit Limit of rupees one lac for working capital and submitted its application for the same. The said Bank sanctioned the said cash credit limit of rupees one lac against the hypothecation of stocks and book debt payable on demand with interest specified in the sanction letter. Thereafter necessary documents were executed between the parties. The writ petitioner then approached the said Bank for enhancing the said limit upto rupees five lac thirty thousand and submitted an application to that effect on 31-3-1990. The said application of the petitioner was recommended by the Bank to the Regional Office, Ranchi and the loan was sanctioned upto the limit of rupees four lacs fifty thousand on certain terms and conditions mentioned therein. The case of the said Bank is that despite several requests and reminders by the Bank, the petitioners did not regularise the position of the amount nor paid to the said Bank the dues outstanding in their account. Ultimately a legal notice was given by the said Bank on 27- 2-1997. As nothing had happened, an application was field by the said Bank before the Tribunal with a prayer for a declaration that the petitioners owe to the said Bank a sum of Rs. 18,38,475.24 paise with interest calculated upto 28-12-1997 and further interests at the rate of 19.75% per annum with quarterly rests.
3. On the said application being filed the petitioners were served with summons and they filed their written statement taking their defence to the said claim. It appears that thereafter the parties field their evidence of affidavits, and the petitioners filed a substantive application requesting that the witnesses of the said Bank be produced for cross-examination.
4. The grievance of the petitioners is that by the impugned order dated 30-12-1998 the Presiding Officer of the said Tribunal dismissed the petitioners application.
5. It is not in dispute that the said order dated 30-12-1998 was passed by the said Tribunal after hearing the parties. While passing the said order the Tribunal has considered the case of the rival parties especially the case of the petitioners that they want to cross-examine the witnesses of the Bank in view of the principles of natural justice but the said prayer of the petitioner was declined by the Presiding Officer of the said Tribunal by passing a speaking order.
6. This Court, however, does not pronounce on the correctness or validity of the said order having regard to principles decided in this case as would appear from the following discussion.
7. Learned counsel for the respondent Bank raised a preliminary objection about the maintainability of the writ petition, inter alia on the ground that the said order dated 30-12-1998 is an appealable order and a clear right of appeal to the appellate tribunal under the said Act is given to the petitioners. Initially learned counsel for the petitioners raised doubt as to whether the appellate tribunal is functioning or not. As such the Court adjourned the matter on 29-7-1999 with a direction upon the learned counsel for the Bank to find out whether the appellate tribunal is functioning. Thereafter on 6-8-1999 the learned counsel for the Bank informed this Court that the appellate tribunal is functioning at Bombay and Hon ble Mr. J
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