IMPORTANT POINT
The main legal point established in the judgment is that the exercise of jurisdiction under Article 226 of the Constitution is not called for when there is an efficacious and effective relief available before the Debt Recovery Appellate Tribunal.

JUDGMENT :

D. Baruah, J.

This intra Court appeal is directed against the judgment and order dated 30.04.2024 passed by the learned Single Judge in WP(C) No.1(K)/2021 whereby the writ petition was disposed of without entering into the merits and giving liberty to the Appellant herein to approach the Debt Recovery Appellate Tribunal challenging the order dated 20.10.2020 passed by the Recovery Officer, Debt Recovery Tribunal, Guwahati in Original Application No.445/2016.

2. The learned Single Judge further observed in the said order that till the disposal of the appeal by the Debt Recovery Appellate Tribunal, the order dated 20.10.2020 impugned in the writ proceedings passed by the Recovery Officer, Debt Recovery Tribunal, Guwahati in Original Application No.445/2016 shall remain stayed.

3. Being aggrieved, the instant appeal has been filed on the ground that the learned Single Judge failed to consider that the exercise of the power by the Recovery Officer was a nullity and as such, the writ petition was maintainable under Article 226 of the Constitution.

4. For the purpose of deciding the said aspect of the matter, we find it relevant to briefly state the facts which has led to the filing of the intra Court appeal.

5. The Respondent No.3 herein had taken a housing loan amounting to Rs.39,00,000/- from the Respondent No.2 Bank in the year 2013. On account of non-payment of the loan, the said account was categorized as a Non-Performing Asset. Subsequent thereto, the Respondent No.2 filed an Original Application being O.A. No.445/2016 against the Respondent No.3 before the learned Debt Recovery Tribunal, Guwahati seeking for issuance of a recovery certificate of an amount of Rs.43,75,518/- along with interest. The said proceedings which was filed against the Respondent No.3 proceeded ex-parte and vide the judgment dated 21.06.2017, the learned Presiding Officer, Debt Recovery Tribunal issued recovery certificate for an amount of Rs.43,75,518/- along with interest in favour of the Respondent No.2 Bank.

6. It is relevant to take note of that the Respondent No.3 neither appeared before the learned Debt Recovery Tribunal during the proceedings nor thereafter assailed the judgment and order dated 21.06.2017 passed by the learned Debt Recovery Tribunal in O.A. No.445/2016. On the other hand, the Respondent No.3 vide a Deed of Sale dated 02.09.2017 transferred the property in favour of the Appellant herein. Subsequent thereto, the Respondent No.2 filed a report before the learned Recovery Officer, Debt Recovery Tribunal, Guwahati showing that the attachment has been proclaimed on the mortgage property by them as per law. However, the appellant was in occupation of the same who claimed to be the owner of the property.

7. The learned Recovery Officer thereupon passed the order dated 20.10.2020 which was challenged by filing a writ petition before this Court which was registered and numbered as WP(C) No.1(K)/2021. The learned Single Judge vide the impugned judgment and order dated 30.04.2024 was of the opinion that it was not a fit case for exercise of jurisdiction under Article 226 of the Constitution in view of an effective efficacious remedy is available before the Debt Recovery Appellate Tribunal. Under such circumstances, vide the impugned order, the learned Single Judge did not entertain the dispute on merits and gave a liberty to the Appellant herein to prefer an appeal before the Debt Recovery Tribunal challenging the order dated 20.10.2020 passed by the Recovery Officer, Debt Recovery Tribunal, Guwahati in O.A. No.445/2016.

8. We have heard Mr. S. Dutta, the learned Senior counsel for the Appellant who submitted that the order dated 20.10.2020 passed by the learned Recovery Officer, Debt Recovery Tribunal, Guwahati was without jurisdiction on the ground that there could not have been equitable mortgage created by the Respondent No.3 on the basis of the order dated 16.08.2013 issued by the Deputy Commissioner, Dimapur, Nagaland and as such t