Calcutta High Court (Appellete Side)

The Authorized Officer vs Sri Rudra Bhattacharya And Anr on 5 September, 2024

Author: Debangsu Basak

Bench: Debangsu Basak

                                                          1
                                                   MAT 1226 of 2024




                                        IN THE HIGH COURT AT CALCUTTA
                                         CIVIL APPELLATE JURISDICTION
                                                APPELLATE SIDE

                    Present:
                    The Hon'ble Justice Debangsu Basak
                                  And
                    The Hon'ble Justice Md. Shabbar Rashidi
                                                MAT 1226 of 2024
                                                      With
                                              IA No.: CAN 1 of 2024

                               The Authorized Officer, Bank of India and Anr.
                                                    Vs.
                                    Sri Rudra Bhattacharya and Anr.

                      For the appellants                  : Mr. Sanjib Das, Advocate
                                                           Ms. Sunita Kabi, Advocate
                                                           Ms. Mohuya Ghosh, Advocate


                      For the respondent no.1(in-Person): Mr. Rudra Bhattacharya

Heard & Judgment on : September 5, 2024

DEBANGSU BASAK, J.:-

1. Appeal is directed against the order dated May 21, 2024 passed in WPA

12003 of 2024.

2. Learned Advocate appearing for the appellants submits that, private

respondents herein approached the Debts Recovery Tribunal under

Signed By : Section 17 of the SARFAESI Act, 2002. Such proceeding was registered ABHIJIT DAS High Court of Calcutta 6 th of September as S.A. No. 142 of 2015. In S.A. No.142 of 2015 from time to time diverse 2024 04:14:58 PM

MAT 1226 of 2024

orders were passed. Some orders were appealed against before the Debts

Recovery Appellate Tribunal. One order of the Debts Recovery Tribunal

was assailed before the High Court under Article 227 of the Constitution

of India.

3. Learned Advocate appearing for the appellants submits that, the private

respondents filed an application under Section 340 of the Code of

Criminal Procedure before the Presiding Officer, Debts Recovery Tribunal

in S.A. No.142 of 2015 which was registered as I.A. No.1360 of 2019. I.A.

No.1360 of 2019 was disposed of by an order dated February 1, 2023 by

the Presiding Officer, Debts Recovery Tribunal after holding that prima

facie evidence of any offence being committed was not available.

4. Learned Advocate appearing for the appellants relies upon 2024 INSC

297 (PHR Invent Educational Society vs. UCO Bank and Others) and

(2014) 1 Supreme Court Cases 603 (Commissioner of Income Tax

and Others vs. Chhabil Dass Agarwal) and submits that, a writ

petition challenging an order of the Presiding Officer, Debts Recovery

Tribunal passed under the SARFAESI Act, 2002 is not maintainable.

Private respondents did not avail of the statutory alternative remedy

prescribed. Learned Single Judge erred in entertaining the writ petition.

He refers to the prayers made in the writ petition. He contends that,

since there exits statutory alternative remedy which is effective and Signed By :

ABHIJIT DAS High Court of efficacious, the private respondents should avail of such remedy if they Calcutta 6 th of September 2024 04:14:58 PM so advised.

MAT 1226 of 2024

5. Private respondent no.1 appears in person. He draws the attention of the

Court to the proceedings before the Debts Recovery Tribunal as also the

Debts Recovery Appellate Tribunal. He submits that, the claim of false

evidence made in the application was in respect of the proceedings

pending before the Debts Recovery Tribunal and Debts Recovery

Appellate Tribunal and, therefore, he is unlikely to receive justice for

such fora given the facts and circumstances of the present case. He also

contends that, the appeal provisions are onerous and, therefore, there

should be a direction upon the Debts Recovery Appellate Tribunal to

waive the pre-deposit in the event he files the appeal. Moreover, he

submits that, there is an issue of limitation.

6. We considered the rival contentions of the parties.

7. A notice under Section 13(2) of the SARFAESI Act, 2002 was issued as

against the private respondents. Apparently, private respondents

responded thereto. Appellants took measures under Section 13(4) of the

Act of 2002 in respect of the secured assets. Private respondents filed an

appeal under Section 17 of the Act of 2002 which was registered as S.A.

No.142 of 2015. In such S.A. No.142 of 2015, appellants filed an

application under Section 340 of the Code of Criminal Procedure being

I.A. No.1360 of 2019 which was disposed of by the Presiding Officer,

Debts Recovery Tribunal by the order dated February 1, 2023. Signed By :

ABHIJIT DAS High Court of 8. Order dated February 1, 2023 passed in I.A. No.1360 of 2019 is Calcutta 6 th of September 2024 04:14:58 PM appealable under Section 18 of the Act of 2002. Private respondents did

MAT 1226 of 2024

not file any appeal directed against such order. Appellants approached

the High Court by way of WPA No.12003 of 2024 praying for the following

reliefs:

"Under the circumstances, your petitioner most namely prays that Your Lordships would graciously be pleased to pass the following Orders.

a) A writ of and/or in the nature of mandamus thereby add as necessary party respondents who are involve in tampering of court records i.e. the then DRT-III the then Registrar DRT-

III, DRT-I and DRAT Kolkata, various person including the Chairman of Bank of India Zonal Manager of BOI, Finance Ministry of India who have deliberately lingered the proceedings to cover up the seam like tampering of Court records and also draw criminal proceedings against those added party respondents and impose upon them exemplary costs.

b) A writ of and/or in the nature of Certiorari thereby directing the respondents to certify and transmit to this Hon'ble Court all relevant records of the Present Case.;

c) A writ of and/or in the nature of prohibition thereby Prohibiting the respondents and/or their men and agents from doing any act, deed or thing which may cause prejudice Signed By :

ABHIJIT DAS High Court of and/or harm to the writ petitioners; Calcutta 6 th of September 2024 04:14:58 PM

MAT 1226 of 2024

d) Rule NISI in terms of prayers (a), (b) and (c) above.

e) Costs of and/or incidental to this applications;;

f) To pass such other or further order or orders and /or direction or directions as to this Hon'ble Court may deem fit and proper."

9. Learned Single Judge by the impugned order dated May 21, 2024

overruled the objection of maintainability of the writ petition. Learned

Single Judge found that, the impugned order was unreasoned and,

therefore, violated the principles of natural justice. Learned Single

Judge, therefore, set aside the order of the Tribunal dated February 1,

2023 and remanded the application under Section 340 of the Code of

Criminal Procedure being I.A. No.1360 of 2019 to the Tribunal for fresh

adjudication.

10. PHR Invent Educational Society (supra) noted earlier decisions of the

Supreme Court including that of (2010) 8 SCC 110 (United Bank of

India v. Satyawati Tondon and Others) and reminded the High Courts

of the observations made in Satyawati Tondon and Others (supra) in

paragraph 55 thereof.

11. Supreme Court in M/S. South Indian Bank Ltd. & Ors. (supra) also

noted the earlier judgments on the issue and held as follows:

Signed By :

ABHIJIT DAS High Court of "18. While doing so, we are conscious of the Calcutta 6 th of September 2024 04:14:58 fact that the powers conferred under Article PM

MAT 1226 of 2024

226 of the Constitution of India are rather wide but are required to be exercised only in extraordinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involving a lender and a borrower, when the legislature has provided for a specific mechanism for appropriate redressal."

12. The authorities cited above are of the view that where there exists a

statutory alternative remedy which is effective and efficacious,

particularly with regard to commercial matters such as those governed by

the provisions of the Recovery of Debts & Bankruptcy Act, 1993 and the

SARFAESI Act, 2002, the Writ Court should require the parties to avail of

their remedies before the appropriate forum.

13. We dealt with the issue of delay in filing an appeal under Section 21 of

the National Investigation Agency Act, 2008 in Sheikh Rahamtulla @

Sajid @ Burhan Sheikh @ Surot Ali & Ors. (supra).

14. The writ petitioners/private respondents are not remediless against the

order of the Presiding Officer, Debts Recovery Tribunal dated February 1,

2023 passed in I.A. No.1360 of 2019. Remedy prescribed under Section

18 of the Act of 2002 cannot be said to be ineffective or inefficient in the

Signed By : facts and circumstances of the present case. The plea that the conditions ABHIJIT DAS High Court of Calcutta 6 th of September precedent to be complied with for approaching the Debts Recovery 2024 04:14:58 PM

MAT 1226 of 2024

Tribunal under Section 18 of the Act of 2002 is onerous is of no avail.

Requirement to comply with the conditions prescribed to approach the

Appellate Court cannot be construed to mean that the appeal provisions

are non-existent or ineffective or inadequate.

15. In such circumstances, we are of the view that the learned Single Judge

erred in holding the writ petition as maintainable.

16. Both the plea of limitation as also waiver should be considered by Debts

Recovery Appellate Tribunal, if the private respondents before us

approach the Debts Recovery Appellate Tribunal in this regard.

17. In such circumstances, the impugned order dated May 21, 2024 passed

in WPA No. 12003 of 2024 is set aside. MAT 1226 of 2024 along with IA