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HIGH COURT OF MEGHALAYA AT SHILLONG
H.S. Thangkhiew, J.
Manik Dhar - Appellant
Versus
Indian Overseas Bank & Anr. - Respondents
CRP No. 14 of 2016
Decided On : 28-07-2022
stare decisis - Recovery of Debts due to Banks and Financial Institutions - Section 19, Section 22 - The judgment discusses the invocation of Article 227 of the Constitution of India in view of contradictory orders passed by the Recovery Officer regarding the attachment of the petitioner's property. The court considered the doctrine of stare decisis and the provisions of Section 22(2)(e) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. The court emphasized the need to exhaust alternative remedies provided under the Act before invoking Article 227.
Fact of the Case:
The petitioner challenged the impugned orders passed by the Recovery Officer, alleging that they were in conflict with earlier orders and that the property was yet to be registered in the petitioner's name. The petitioner also argued that substantial payments had been made towards loan repayment.
Finding of the Court:
The court found that the impugned orders were passed under a special statute, and the petitioner should have pursued the statutory appeal provided under Section 20 of the Act instead of invoking Article 227. The court dismissed the petition, leaving the petitioner to seek appellate remedy as provided under the statute.
Issues: The issues revolved around the conflicting orders passed by the Recovery Officer, the invocation of Article 227, and the availability of alternative remedies under the Recovery of Debts due to Banks and Financial Institutions Act, 1993.
Ratio Decidendi: The court emphasized the need to exhaust alternative remedies provided under the Act before invoking Article 227. It cited relevant case law to support the principle that when there is an alternate remedy available, courts should refrain from exercising jurisdiction under Articles 226 and 227 of the Constitution.
Final Decision: The court dismissed the petition, leaving the petitioner to seek appellate remedy as provided under the statute to assail the impugned orders. The records were to be transmitted back to the Debts Recovery Tribunal, Guwahati immediately.
JUDGMENT
1. This application under Article 227 of the Constitution of India has been filed assailing the impugned orders dated 09.09.2015 and 18.04.2016, passed by the Recovery Officer, Debts Recovery Tribunal, Gauhati in O.A. No. 12 of 2007, against the proclamation of attachment of the petitioner's property which is alleged, is yet to be registered in the name of the petitioner and that the said impugned orders, run contrary to an earlier order dated 10.12.2009 of the Recovery Officer itself. Being aggrieved that the impugned orders had been passed without considering the earlier order dated 10.12.2009, the petitioner is before this Court.
2. The factual aspects that are necessary for consideration of the matter is that the petitioner, had applied for credit facilities from the respondents Bank under a fund-based account namely; Term Loan and working Capital Term Loan account with varying limits against hypothecation of all movable assets. The respondents Bank sanctioned the said credit facilities in favour of the petitioner and various amounts were sanctioned on many dates, as per the set terms and conditions, against the securities stipulated in the sanction letters. The petitioner in confirmation thereof, executed various documents. To secure the loan, the guarantor of the petitioner created an equitable mortgage in favour of the respondents of a plot of land situated in Silchar and apart from the said plot, the petitioner vide letter dated 06.04.2004, mortgaged his flat situated at Iakatori Complex Keating Road, Shillong as part of the collateral securities towards the Loan account. It appears that after having availed of the loan, the petitioner could not re-pay the same and the respondent Bank thereafter, on such non-repayment, filed an application under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 now known as Recovery of Debts and Bankruptcy Act, 1993, before the Debt Recovery Tribunal, Gauhati, praying for issuance of recovery certificate for Rs. 1,44,97,391/- (Rupees One Crore, Forty-Four Lakhs, Ninety-Seven Thousand, Three Hundred and Ninety-One) only along with future interest, and the same was registered as O.A. No. 12 of 2007. The learned Tribunal vide Judgment and Order dated 29.05.2008 then issued a recovery certificate in favour of the respondent holding as follows: -
'Issued Recovery Certificate in favour of the applicant for the recovery of Rs. 1,44,97,391/- (Rupees One Crore, Forty Four Lakhs, Ninety Seven Thousand, Three Hundred and Ninety One) only against both the defendants along with the future interest @ 14% per annum from the date of filing of the application till realization of the amount and also cost of the application'.
3. Thereafter, pursuant to the order dated 29.05.2008, a certificate was issued under Section 19 (22) of the Recovery of Debts Act and by order dated 24.02.2009, the Recovery Officer directed attachment of the properties of the petitioner. However, on 10.12.2009, on a report of the Recovery Inspector DRT, that the apartment situated at Iakitori Complex was yet to be registered, the said attachment was recalled to await till proper registration was completed. By another order dated 31.03.2011, the learned Tribunal recorded that, as there was no other property on record against which recovery proceedings could be carried out, it directed the applicant Bank to furnish property particulars belonging to the petitioner and that till submission thereof, the matter be kept in abeyance.
4. Thereafter, it appears by order dated 09.09.2015 the learned Tribunal on coming to a finding that the petitioner had purchased the other property in his name and the said sale had been confirmed by the vendor, then rejected the petitioner's prayer from the liability against the said certificate and fixed 28.10.2015 for report and for passing of necessary orders on proclamation of attachment. The petitioner sought recall of the said order which was came to be rejected
AI
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