Prodip Kumar Dutta & Anr vs The Authorised Officer & Anr
2023 Latest Caselaw 1214 Cal

S/L 62
17.02.2023
Court No.652
SD
                                    CO 481 of 2021
                                Prodip Kumar Dutta & Anr.
                                           Vs.
                               The Authorised Officer & Anr.

               Mr. Sounak Bhattacharya
               Mr. Emon Bhattacharya
               Ms. Pooja Sah
                                                        ... for the Petitioners.
               Ms. Soni Ojha
                                                   ... for the Opposite Parties.


                     Being aggrieved and dissatisfied with the order dated

               25.02.2020 passed by the learned Presiding Officer, Kolkata

               Debts Recovery Tribunal-III in S.A. No.65 of 2018, present

               revisional application has been preferred.

                     By the order impugned, the learned Presiding Officer

               was pleased to dismiss the case for non-compliance of

               Tribunal's order and non-service of petition/notices to the

               respondent during last two years.

Mr. Sounak Bhattacharya, learned counsel appearing

on behalf of the petitioners, referring the order dated

11.3.2021 passed by this Court contended that this Court was

pleased to observe that the petition was served upon the

learned advocate for the respondents in the court room and

it also reveals that the service was not completed despite

various opportunities having been given to the petitioners.

Therefore, a prima facie case has been made out by the

petitioners that the court below ought to have given one last

chance for effecting the service instead of passing the

dismissal order.

In this context, he further contended that Section 18

of the Recovery of Debts and Bankruptcy Act, 1993 High

Court has its jurisdiction under Article 226 and 227 of the

Constitution of India and the revisional jurisdiction of the

High Court has not been curtailed by the said enactment.

He also referred the judgment passed by a Coordinate

Bench of this Court in CO 592 of 2021 wherein it was

observed that the High Court has limited scope to interfere

under Article 227 in appropriate cases. He also referred

another judgment passed by a Coordinate Bench of this

Court in WPA 13081 of 2022 wherein this Court was pleased

to pass restraining order wherein it was observed that

pending final order in the matter the respondent/bank could

not have issued the impugned notice of sale.

Learned counsel appearing on behalf of the opposite

parties raised strong objection contending that an amount of

more than Rs.3 crores is lying outstanding. Furthermore, in

order to avoid the statutory deposit under the provision as

laid down in Section 18 of the securitization and

Reconstruction of Financial Assets and enforcement of

security Interest Act, 2002 , (called as SARFAESI Act, 2002)

present application has been filed, with mala fide intention

to drag the proceeding.

She further submits that though it has been stated

that at the relevant point of time Debts Recovery Appellate

Tribunal was not functioning but in fact, one Judge of the

Debts Recovery Appellate Tribunal, Allahabad was in charge

of that court. Even if the petitioner has any cause to be

aggrieved by the order impugned, he could have preferred

appeal before Appellate Tribunal who is in seisin by making

statutory deposit and as such, the revisional application is

not maintainable and is liable to be rejected.

Considered submissions made by the parties.

At the outset, Section 18 of the Act of 2002 is

reproduced hereinbelow:-

"18. Appeal to Appellate Tribunal. - (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal [under section 17, may prefer an appeal along with such fee, as may be prescribed] to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal.

[Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:] [Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less;

Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent of debt referred to in the second proviso.] (2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder."

In view of aforesaid specific provision of the Act of

2002, it is clear that any person aggrieved by any order may

prefer an appeal before the appellate tribunal within 30

days. Here instead of preferring appeal, the petitioners have

preferred this present revisional application. The authorities

of judgment has clearly laid down that although there is

limited scope for interference under Article 227 but in case

of gross miscarriage of justice, patent illegality or procedural

irregularity having been committed by a subordinate court

or tribunal and the like, the High Court can interfere by

exercising its jurisdiction under Article 227 of the

Constitution of India.

On perusal of the order impugned, it appears that the

Presiding Officer was of clear view that the petitioners were

not appearing in the said case for last five occasions and it

was taken on 28.02.2018 for recovery of claim of

Rs.3,26,23,508/- and the matter is pending since 2018 for

service of summon only and the applicant failed to serve the

same since last two years. According to respondents, the

copy of SARFAESI Act application only served in the court

room on that day. But before that he had taken so many

dates, i.e., 07.5.2018, 10.7.2018, 19.9.2018, 11.01.2019,

27.3.2019, 15.5.2019 and 06.8.2019 and accordingly, the

Presiding Officer was pleased to dismiss the application for

non-compliance of the order and non-service of the

petition/notice.

In my considered view, the said order neither involves

gross-miscarriage of justice nor relates to patent illegality or

procedural irregularity, so that the limited scope of

interference by this Court under Article 227, can attract in

the present circumstance. The observation of this court

dated 11.3.2021 is interlocutory in nature and was passed for

limited purpose.

Accordingly, I am of the view that when the

petitioners have efficacious relief and when statute makes

specific provision under Section 18 of the Act, then the

petitioners even if any cause to be aggrieved by any such

order they could have preferred appeal before the appellate

tribunal.

In view of the above, CO 481 of 2021 is dismissed.

However, such dismissal order will not preclude the

petitioners to prefer appeal before the appellate tribunal

against the order impugned in compliance of Section 18 of

the Act of 2002 and also subject to relevant provisions

including Section 5 read with Section 14 of the Limitation

Act, before the appellate forum.

Petitioners will be at liberty to take back the certified

copy of the order impugned, as prayed for, on production of

an authenticated copy of the same.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)