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SUPREME COURT OF INDIA
T.S. THAKUR, GYAN SUDHA MISRA, JJ.
C.N. PARAMSIVAN & ANR. – Appellants.
VERSUS
SUNRISE PLAZA TR. PARTNER & ORS. – Respondent
Civil Appeal No. 154 of 2013 (Arising out of S.L.P. (C) No.21765 of 2010)
Decided On : 9-1-2013.
(1969) 3 SCC 471; (1979) 2 SCC 529; (1985) 4 SCC 404; (1986) 2 SCC 209; (2002) 7 SCC 657; (1999) 4 SCC 306 - Relied upon
(b) Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 29 - As far as possible - May be indicative of a certain inbuilt flexibility - Scope of that flexibility extends only to what is "not at all practicable" - For departure from Rules 57 and 58 of the Second Schedule of the Income Tax Act impracticability of its application to RDDB Act has to be shown - Income Tax Rules may not apply where it is not at all possible to apply them having regard to the scheme and the context of the legislation. (Paras 23 and 26)
(1997) 10 SCC 741; (1977) 1 SCC 308 - Relied upon
(c) Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 29 r/e Rules 57and 58; and Order XXI, rules 84,85 and 86 - Rules 57 and 58 are mandatory in character. (Paras 28 and 32)
AIR 1954 SC 349; (1990) 4 SCC 90; (1996) 5 SCC 705; (1995) 4 SCC 275; (1997) 10 SCC 387; (2005) 12 SCC 364; (2007) 12 SCC 165 - Relied upon
(1967) 2 SCR 77; (2008) 12 SCC 582; (1994) 2 SCC 364; (1996) 7 SCC 668; (1990) 1 SCC 513 - Referred
Facts of the case:
Interpretation of Rules 57 and 58 in the Second Schedule of the Income Tax Act, 1961 and Section 29 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 falls for consideration in this case.
Finding of the Court:
Rules 57 and 58 in the Second Schedule of the Income Tax Act, 1961 are mandatory.
Result : Appeal dismissed.
JUDGMENT
T.S. Thakur, J.:-
Leave granted.
2. This appeal by special leave arises out of an order passed by the High Court of Judicature at Madras whereby writ petition No.14594 of 2007 filed by the appellants has been dismissed and orders passed by the Debt Recovery Appellate Tribunal in M.A. No.90 of 2006 upheld, no matter on a ground other than the one on which that found favour with the Appellate Tribunal.
3. Facts leading to the filing of the writ petition have been set out at considerable length in the orders passed by the Appellate Tribunal and that passed by the High Court. We do not, therefore, consider it necessary to recapitulate the entire history over again except to the extent the same is necessary for the disposal of the present appeal. The long drawn legal battle that has raged over the past two decades or so has its genesis in a loan which respondent Indian Bank advanced to M/s. Sunrise Plaza, a partnership concern comprising respondent-S. Kalyanasundaram and his wife - Mrs. Vasantha Kalyanasundaram. The loan was advanced on the basis of an equitable mortgage of the properties owned by the partners of the firm by deposit of title deeds relevant thereto. The borrower having defaulted in the repayment of the loan amount, the respondent-bank filed O.A. No.238 of 1998 re-numbered as O.A. No.1098 of 2001 before the Debt Recovery Tribunal at Chennai. Failure of the respondents to appear and contest the claim made against them culminated in the passing of an ex-parte decree in favour of the bank on 20th September, 1999. An application for setting aside of the said decree was then made by the borrower defendants which was dismissed by the Tribunal for default. An application for recall of the said order too failed and was dismissed by the Tribunal.
4. Proceedings for execution of the Recovery Certificate issued in favour of the bank were in the meantime initiated and the property mortgaged with the bank brought to sale in a public auction on 7th March, 2003 in which the appellants emerged as the successful bidders. The respondents then filed I.A. No.146 of 2003 for setting aside of the auction sale, while I.A. No.150 of 2003 filed by them prayed for an order of refusal of confirmation of the sale. The Debt Recovery Tribunal passed a conditional order in the said application deferring the confirmation of sale subject to the judgment-debtor depositing a sum of Rs.10, 00, 000/- with the decree holder bank on or before 25th April, 2003. I.A. No.146 of 2003 for setting aside the sale was, however, dismissed by the Tribunal on 15th April, 2003, as not maintainable. A prayer made by the respondents - judgment-debtors for extension of time to make the deposit of the amount directed by the Tribunal having been rejected, the recovery officer proceeded further and issued a sale certificate in favour of the appellants on 28th May, 2003. The judgment-debtors -respondent Nos.1 to 3 then filed an appeal challenging the orders passed by the Debt Recovery Tribunal in which the Appellate Tribunal directed them to pay the requisite court fee.
5. Aggrieved by the order of the Appellate Tribunal, the judgment- debtors filed Writ Petition No.28235 of 2003 in which the High Court by an order dated 14th October, 2003 set aside the ex-parte decree on payment of costs. That order when challenged by the decree holder bank in a Special Leave Petition before this Court was affirmed and the SLP dismissed in July 2004. Undeterred by the dismissal of the Special Leave Petition, the bank filed a Review Application before the High Court for review of its order dated 14th October, 2003 setting aside the ex-parte decree. Even the appellants herein filed a review petition against the said order which applications were dismissed by the High Court with liberty to the auction purchaser-appellants herein to represent their case before the Debt Recovery Tribunal in the O.A. pending before it.
6. The appellants-auction purchasers at that stage filed I.A. No.20 o
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