The main legal point established in the judgment is the interpretation of the provisions of the Second Schedule of the Income Tax Act to determine the legality of the sale conducted and the authority of the Recovery Officer and the Tax Recovery Officer.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. The genesis of these appeals arises from an order of the Debt Recovery Tribunal (DRT), Ernakulam, in two appeals filed before the Tribunal invoking Section 30 of the Recovery of Debts Due to Banks and Financial Institutions Act (RDDBFI Act), 1993. These appeals were filed before DRT by the borrowers aggrieved by the sale conducted pursuant to the Recovery Certificate being issued by DRT. The sale was conducted by the Recovery Inspector as authorized by the Recovery Officer invoking Second Schedule of the Income Tax Act, 1961. The Tribunal refused to set aside the same holding that there was no irregularity in the conduct of the sale. In normal course, the borrowers ought to have moved the Appellate Tribunal, Chennai, challenging the orders of the Tribunal, but approached this Court by the writ petition invoking Article 226 and 227 of the Constitution. The learned Single Judge, who heard the matter, entertained the challenge and set aside the order of the Tribunal and consequently, sale has also been set aside. The Bank and the auction purchaser have come up in these appeals.

2. We heard the learned Senior Counsel Shri Sethu Madhavan appearing for the Bank, Shri P.B. Krishnan appearing for the auction purchaser and also the learned Senior Counsel Shri S. Sreekumar appearing for the borrower.

3. We are not adverting to the facts involved in this case other than the facts required for adjudication on the point of law involved as the learned Single Judge had adverted to all the facts in these cases.

4. The first objection raised before us was against exercise of the writ jurisdiction when an equally efficacious remedy is available by way of appeal before the Appellate Tribunal. We note that the sale was effected on 26/3/2013 and the appeals filed before the Tribunal in the year 2013 came to be disposed of on 21/1/2015. The learned Single Judge in the writ petitions filed in the year 2015, disposed of the writ petitions on 19/2/2016. We heard this appeal in the year 2023. The reason for entertaining the writ petition was that there was no sitting of the Appellate Tribunal at Chennai as the office of the presiding officer became vacant. Further, the learned Single Judge noted that there were no disputed questions of facts and the only points to be decided were on questions of law. It may not be proper for us at this distance of time to relegate the parties to the appellate authority as rightly noted by the learned Single Judge. The questions involved in this matter are pure questions of law and in the particular circumstances of the case, there was no embargo on this Court against entertaining the writ petitions. We, in these circumstances, overrule the objections raised on behalf of the appellants.

5. The challenge in the appeal before the Tribunal was on the ground that sale conducted was against the provisions of the Second Schedule of the Income Tax Act. The sale proclamation was made on 19/11/2012. The auction was notified on 5/2/2013. The auction was conducted through the e-auction mode. There was no challenge against the proclamation. No sale took place on 5/2/2013. Sale was adjourned to 4/3/2013. No sale took place on 4/3/2013 either. Thus, the sale was adjourned to 26/3/2013. Shri Preman V.G. bid on both the properties on 26/3/2013. There was only one bid of Shri Preman V.G.

6. Challenge of sale was on the three enumerated grounds as below:

(i) The Recovery Officer ought to have conducted the sale and he could not have authorised the Revenue Recovery Inspector to conduct the sale.

(ii) There was no sale conducted on 26/3/2013 and that the sale and confirmation of sale were both on 8/5/2013.

(iii) The sale conducted without fresh proclamation after 30 days of the original date of sale is illegal.

7. Point No. (i):

Section 29 of RDDBFI Act incorporates the provisions of the Second and Third Sched