M/S. Unified Agro Ind. (India) ... vs Debts Recovery Tribunal, N.D. & ...
2000 Latest Caselaw 665 Del

ORDER

Devinder Gupta, J.

1. Order passed on 5.5.1999 by Debt Recovery Tribunal, Delhi constituted under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act No. 51 of 1993) (hereinafter referred to as "the Act") is under challenge by the petitioners in these two separate petitions filed under Article 226 read with Article 227 of the Constitution of India. The petitioners have prayed for setting aside of the said order dated 5.5.1999 by which the Tribunal has allowed the application of the respondent Bank for passing an order against the petitioners on the alleged admissions.

2. The grievance of the petitioners is that the application of the respondent Bank was allowed and final order was passed by the Tribunal: (a) without holding trial on disputed facts emerging from pleadings of the parties and without adjudicating upon bank's claim submitted for adjudication, in view of the disputes stated there and contrary to the manner mandated by the provisions of the Act, the Procedure, Rules and Regulations of Practice under the Act. (b) the order has been passed in excess of jurisdiction by the Tribunal. (c) in flagrant disregard to the applicable rules and procedures and in violation of principles of natural justice.

3. Preliminary objection has been raised by respondent No.1 against entertainment of the writ petition on the ground that against the impugned order dated 5.5.1999 passed by the Tribunal, an appeal under Section 20 of the Act is maintainable before the Appellate Tribunal constituted under the Act. In view of availability of statutory remedy of appeal, writ petition is not maintainable. It is claimed by the respondents that when an alternative and equally efficacious remedy is available to a litigant, he should be required to pursue that remedy and not to invoke the constitutional jurisdiction of High Court under Articles 226 and 227 of the Constitution of India.

4. The respondents' answer to the preliminary objection is that where a statutory alternate remedy is onerous and not equally efficacious, it is permissible to invoke jurisdiction of the Court under Article 226 of the Constitution of India. When the statute requires the entire amount to be paid or deposited before the appeal can be preferred, the alternate remedy by way of appeal is not an equally efficacious alternate remedy and existence of alternate remedy is no bar to the writ petition where it is alleged that the Tribunal acted in violation of principles of natural justice.

5. In order to appreciate respective contentions of the parties, it will be necessary to narrate few facts. On 10.12.1998 the respondent Bank filed an application before the Tribunal against the petitioners for recovery of a sum of Rs. 28,03,19,182/- by sale of properties pleaded as mortgaged properties. The application was registered as O.A. 421/98. In the application filed by the respondent Bank, the amount was stated to be due under the following heads:-

                Packing Credit A/c      Rs. 20,19,26,552.00
                Export Bill FUDBP       Rs.    60,57,404.00
                Overdue Export bills 
                and FUDBP Account       Rs.  3,16,87,179.00
                Current Account         Rs.    61,96,659.82
                Other charges           Rs.  3,44,51,387.18
                                        -------------------
                        Total           Rs. 28,03,19,182.00
                                        -------------------

 

6. After the petitioners were served, they filed respective written statement. It is the petitioners' case that as the pleadings of the parties raised disputed issues/claims for adjudication by the Tribunal, the Tribunal fixed the case for hearing. During hearing the respondent Bank on 17.3.1999 filed an application purporting to be one under Order 12 Rule 6 C.P.C. praying for issuance of recovery certificate against the petitioners on the alleged admissions. The application was opposed by the petitioners on the ground that there was no admission on which the Tribunal may be in a position to pass an order of issuance of certificate in favour of the Bank against the petitioners. The Tribunal after hearing the parties on the said application reserved its orders and passed the impugned order on 5.5.1999.

7. Learned counsel for the parties were heard at length on the preliminary objection as well as on the scope of the Act. They also cited number of decisions in support of their submissions.

8. The petitioners' grievance is that after they had filed their written statement in answer to the summons issued by the Tribunal disputing the correctness of the Bank's claim; instead of allowing the parties to prove their respective case, the Tribunal proceeded to invoke the provisions of Order 12 Rule 6 C.P.C. and allowed the claim of the respondent by applying the principles prescribed for grant of leave under Order, 37 Rules 3 and 5 C.P.C. None of the said provisions, in view of specific provisions found in Rule 12(5) of Debt Recovery Tribunal (Procedure) Rules was applicable. The Tribunal acted in excess of its jurisdiction. Award of interest pendente lite and future is illegal and beyond jurisdiction. The Tribunal exceeded in its jurisdiction and acted contrary to law in declaring Bank's claim, as stated in the application, as proved, despite specific challenge, as detailed in the written statement on the ground of being against terms of the agreement and R.B.I. directives.

9. Learned counsel for the respondents vehemently contended that the Tribunal was free to evolve its own procedure. Only after notice to the petitioners, Bank's application for passing final order on the basis of admission was duly considered and decided. A finding was recorded that in view of the clear and unequivocal admission admitting the claim of the respondent Bank, there was no need for trial. The Tribunal rightly passed an order, which was well within its jurisdiction. As the order has been passed under the provisions of the Act, there was no reason why the petitioners should not have preferred an appeal, which is statutorily provided under the Act. Had the petitioners approached the Appellate Authority to challenge the impugned order, they would have been directed to deposit 75% of the amount. Jurisdiction of the Court has been invoked merely to avoid the liability. The entire aim is to cause delay in payment of the admitted amount to the respondent Bank.

10. After the respondent Bank had filed the application and the petitioners had filed their written statement, the case was fixed for hearing on 17.3.1999. On that date, an application was moved by the respondent Bank praying for passing of a final order. The respondent Bank alleged that the petitioner Company had submitted annual report including balance sheet for the year 1996-97 and 1997-98 ending 31st March, 1997 and 31st March, 1998 respectively before Registrar, of Companies. In the said balance sheets for 1996-97 and 1997-98 and annual reports, the petitioner Company had admitted, acknowledged and confirmed its liability towards the Bank for a sum of Rs.20,94,62,107/- and Rs.20,99,81,044/- respectively, which is subject matter of the application The Bank had in the original application made averments with respect to this admission by the Company and also appended copies of the annual reports. The petitioner Company in its written statement in para-109 had stated that the annual report referred to was under review by the Auditors. Audited reports for the period in issue, as and when received, would be submitted. The respondent Bank in the application claimed that neither in para-109 nor in any other part of written statement, the petitioners had denied the fact of the Company having submitted the annual report and balance sheets. The plea taken by the petitioners that some were under review, tantamounts to admission of the correctness of the report and balance sheet. Issuance of annual report and balance sheet along with the notices and the fact that the said document contained a recital about the amount outstanding towards the Bank with regard to taking credit, amounts to admission of liability of the amount to the extent, as claimed by the Bank. It was alleged that the annual reports and balance sheet for the year ending 31st March, 1997 is a copy certified by the Company and is admissible in evidence without formal proof. According to annual report for 1996-97 ending 31st March, 1997, liability admitted is to the extent of Rs. 20,94,62,107/- and in the balance sheet of 1997-98, liability admitted is to the extent of Rs. 20,99,81,044/-. It was prayed that in view of this admission, it was a fit case for issuance of recovery certificate.

11. The petitioners filed their reply to the application stating that the provisions of Order 12 Rule 6 have no applicability to the proceedings before the Tribunal in view of Rule 12(5) of the Debt Recovery Tribunal (Procedure) Rules. The petitioners denied that they had made any admission of the amount of the debt due to the Bank and as such, there was no cause for the Bank to file application for passing final order. The petitioners stated that they had opposed the claim of the Bank in their written statement and that the Bank was not entitled to final order. In any case, claim of the Bank for pendente lite and future interest at 19.39% per annum at quarterly rests was outside the scope of law. The balance sheet for the year 1997-98 ending 31st March, 1998 incorporated a note that value of packing credit given in Schedule '3' to the accounts is as per statements provided by Oriental Bank of Commerce. Effects of disputed values, raised by Company in their representation to the Bank will be incorporated in the next report. The petitioners' claim that the Bank while filing copy of the balance sheet for 1997-98 had tampered with page-7 by not filing the full text of the said page. Para-3(i) had been omitted by the Bank while filing the same. The petitioners filed a copy of the annual report of 1997-98 along with their reply. It is stated that as there was disputed question of facts, the same should have been decided, in accordance with law and no final order could be passed.

12. The Bank filed rejoinder opposing the claim of the petitioners.

13. In the hearing, which took place on 26.3.1999, considering the respective stand of the parties on the application moved by the Bank and after hearing some arguments, the case was adjourned by the Debt Recovery Tribunal. On 13.4.1999 again arguments were heard. On the request of learned counsel for the petitioners, it was adjourned to 23.4.1999. On 23.4.1999 arguments of both the parties were heard and the case was adjourned to 26.4.1999, on which date learned counsel for the petitioners was heard and judgment was reserved, which was pronounced on 5.5.1999. We heard learned counsel for the parties at length and were taken through the record.

14. Parliament enacted the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act') to provide for establishment of Tribunals for expeditious adjudication and recovery of debts due to Banks and Financial Institutions and for matters connected therewith or incidental thereto. The Tribunal constituted and established under Section 3 of the Act has been vested, under Section 17 of the Act, with the jurisdiction, power and authority to entertain and decide the applications from the Bank and Financial Institutions. Appellate Tribunal is constituted and established under Section 7 of the Act and on or from the appointed day by virtue of Section 17(2) of the Act is authorised to exercise jurisdiction, powers and authority to entertain appeal against any order made or deemed to have been made, by a Tribunal under the Act. Section 19 of the Act lays down the manner in which an application of the Bank is to be filed before the Tribunal. Section 22 of the Act prescribes the procedure to be followed by the Tribunal and Appellate Tribunal as to how the applications and appeal are to be disposed of. The Tribunals can regulate their own procedure and are to be guided by the principles of natural justice. Section 22 of the Act reads:-

22. Powers and functions of the Registrar-

(1) The Registrar shall have the custody of the records of the Tribunal and shall exercise such other functions as are assigned to him under these rules or by the Presiding Officer by a separate order in writing.

(2) The official seal shall be kept in the custody of the Registrar.

(3) Subject to any general or special direction by the Presiding Officer, the seal of the Tribunal shall not be affixed to any order, summons or other process save under the authority in writing from the Registrar.

(4) The seal of the Tribunal shall not be affixed to any certified copy issued by the Tribunal save under the authority in writing of the Registrar.

15. A bare reading of Section 22 shows that the Tribunals can regulate their own procedure and so long as the procedure adopted by the Tribunal is not contrary to the provisions of Rules; is not opposed to principles of natural justice and is not arbitrary or unreasonable, no interference can be made with the orders so passed. Section 22 of the Act says that Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure and as held in Industrial Credit and Investment Corporation of India Ltd. Vs. Grapco Industries Ltd. and others, . It does not mean that it will not have jurisdiction to exercise powers of a Court, as contained in the Code of Civil Procedure. Rather the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its power is to observe the principles of natural justice.

16. The point in controversy amongst parties is that while passing the impugned order by the Tribunal whether there has been violation of the principles of natural justice. The respondent Bank claims that the application of the respondent Bank was disposed of, in accordance with law after affording due adequate opportunity to the petitioners to meet the case set up by the Bank and there was no violation of principles of natural justice. The petitioners allege that it was incumbent for the Tribunal to have considered and examined and thereafter adjudicated upon the disputed questions raised without which the order passed would amount to violating of the principles of natural justice.

17. Before dealing with the above question, the first question which has to be considered by us is the propriety of entertaining a writ petition against the order passed by the Tribunal.

18. In State of Bombay Vs. The United Motors (India) Limited, 1953 SCR 1069, it was held that the principle that a Court will not issue a prerogative writ when an alternative remedy was available, could not apply where a party came to the Court with an allegation that a fundamental right has been infringed and sought relief under Article 226. Same view was reiterat-

ed in Himmatlal Harilal Mehta Vs. State of Madhya Pradesh and others, 1954 SCR 1122:-

"The principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226. Moreover, the remedy provided by the Act is of onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly be described as an adequate alternative remedy."

19. In State of U.P. Vs. Mohammad Nooh, AIR 1958 SC 86, it was held:-

"The existence of other adequate legal remedies is not per se a bar to the issue of a writ of certiorari and if in a proper case it may be the duty of the superior court to issue a writ of certiorari to correct the errors of an inferior court or tribunal called upon to exercise judicial or quasi judicial functions and not to relegate the petitioner to other legal remedies available to him and if the superior court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal, e.g. by furnishing security required by the statute, it cannot then be laid down as an inflexible rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior court or tribunal on appeal or revision.

There may conceivably be cases where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed that ex facie was a nullity for reasons aforementioned."

20. In Calcutta Discount Co. Ltd. Vs. Income-tax Officer, Companies District I, Calcutta and another, , it was held that though writ of prohibition or certiorari is exhausted against an Executive Authority, but the High Court has powers to issue it in a fit case by an order prohibiting the Executive Authority from acting without jurisdiction. Where such an action of the Executive Authority acting without jurisdiction or is likely to subject a person to lengthy procedure and unnecessary harassment, High Courts will issue appropriate directions to prevent such circumstances. In Additional Collector of Customs and another Vs. M/s Shantilal Chhotelal and Co., , a writ petition was entertained by the High Court despite availability of remedy of filing an appeal on the ground that the alternate remedy was not an effective remedy since the assessee could not file an appeal without depositing, as a condition precedent, the large amount of penalty imposed on them. In those circumstances, Supreme Court held that the existence of an effective remedy does not oust the jurisdiction of the High Court, but it is only one of the circumstances that the Court should take into consideration in exercising its extraordinary discretionary jurisdiction. The Court observed:-

"Lastly, it was argued that the High Court should not have exercised its jurisdiction under Article 226 of the Constitution, as the respondents had an effective remedy by way of appeal to higher Customs Authorities. But the High Court rightly pointed out that the respondents had no effective remedy, for they could not file an appeal without depositing as a condition precedent the large amount of penalty imposed on them. That apart, the existence of an effective remedy does not oust the jurisdiction of the High Court, but it is only one of the circumstances that the Court should take into consideration in exercising its discretionary jurisdiction under Article 226 of the Constitution. In his case, the High Court thought fit to exercise its jurisdiction under Article 226 of the Constitution and we do not see any exceptional circumstances to interfere with its discretion. In the result, Civil Appeals Nos.376 and 377 of 1963 are dismissed with costs."

21. In Bhopal Sugar Industries Limited, Madhya Pradesh Vs. D.P. Dube, Sales Tax Officer, Bhopal Region, Bhopal, AIR 1967 SC 549, entertaining writ petition in view of availability of the statutory remedy of appeal or other proceedings to a party was held to be not an absolute bar. High Court had undoubtedly jurisdiction to decide whether statute under which tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes any fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous.

22. In M/s. Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, , it was held that there are well recognised exceptions to the doctrine with regard to the exhaustion of statutory remedy before filing of a writ petition. The Court ob-

served:-

"In the first place, it is well settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs. for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. [See the decisions of this Court in Carl Still G.m.b.H. Vs. State of Bihar, and Bengal Immunity Co. Ltd. Vs. State of Bihar, . In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice (See 1958 SCR 595, 605=(AIR 1958 SC 86,93)]."

23. In M/s. Filterco and Another Vs. Commissioner of Sales Tax, Madhya Pradesh and Another, , it was held that High Courts should have entertained the writ petition and examined the same on merits irrespective of availability of statutory remedy of appeal, which requires a substantial portion of tax to be deposited before an appeal or revision could be filed on the ground that order of Sales Tax Authority was bad in law and was contrary to the orders, which had already been passed by the Commissioner of Sales Tax. Therefore, filing of appeal before Appellate Authority would have been a mere exercise in futility.

24. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, , after considering number of decisions, it has been laid down that under Article 226 of the Constitution of India, the High Court having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. The High Courts have imposed upon themselves certain restrictions, one of which is the availability of an effective and efficacious remedy. High Court would not normally exercise its jurisdiction in case of availability of an alternate remedy, but the Supreme Court observed that the alternative remedy has been consistently held by it not to operate as a bar in at least three contingencies, namely(a) where the writ petition has been filed for enforcement of any of the fundamental rights or (b) where there has been violation of principles of natural justice or (c) where the order or proceedings are wholly without jurisdiction or the vires of the Act has been challenged. As regards the practice of High Courts entertaining writ petitions irrespective of availability of alternate remedy ignoring the self imposed aforementioned restriction, Supreme Court in Whirlpool Corporation's case (supra) observed:-

"Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the filed with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."

25. Article 226 empowers a High Court to issue various writs: (a) for enforcement of any of the rights conferred by Part-III of the Constitution, and (b) for any other purpose. Article 226 confers on all High Courts very wide powers in the nature of issuing writs. Though the powers are discretionary and no limits can be placed upon that discretion, it must be exercised along with recognised lines and not arbitrarily and subject to certain self imposed limitations. It is also a well established principle that in exercise of this discretionary jurisdiction, High Court should not act as Court of appeal or revision to correct mere errors of law or of fact. Resort to the jurisdiction under Article 226 is not intended as an alternative remedy for relief, which may be obtained by filing a suit or other mode prescribed by the statute. It is equally well settled principle that the remedy under Article 226 being in general a discretionary remedy, High Court may refuse to grant it when there is an alternative equally efficacious, adequate and efficient remedy available unless there are good grounds there for. Whether the alternative remedy is equally efficacious and adequate is a question of fact to be decided in each case. Article 226 is not intended to circumvent statutory procedures unless the statutory remedies are ill-suited to meet the demands of an extraordinary situation. However, the existence of an alternate remedy is not an absolute bar to the relief under Article 226. It is a circumstance, which the Court has to take into consideration in exercising its discretionary powers under Article 226. It does not take away the jurisdiction of the Court to grant relief under Article 226 in exceptional circumstances In nutshell, existence of an adequate alternate remedy whether statutory or otherwise is no bar to relief under Article 226 in cases (a) where a fundamental right has been infringed; (b) where some mandatory provisions of the Constitution have been violated; (c) where the alternative remedy is too dilatory or difficult to give quick relief; (d) where the Act, which provides the remedy is itself unconstitutional or ultra vires; (e) where the statutory rule under which the order has been passed is itself ultra vires the statute under which the order has been made; (f) where the Authority against whom complaint is made has violated the rules of natural justice; (g) where the order is a nullity, and (h) where the Authority imposes an ultra vires condition.

26. Learned counsel for the respondent Bank contended that even taking into account the principles of alternate remedy laid down by Supreme Court and High Courts, the same does not debar the High Court from entertaining writ petitions. Still considering the nature of the order and the remedy of appeal available against the impugned order, it was not a fit case for entertaining a writ petition. He placed reliance upon number of decisions where various High Courts in the country, while considering the nature of alternate remedy prescribed under Section 20 of the Act came to the conclusion that the writ petitions filed against the order of Tribunal are not maintainable as remedy provided under Section 20 is adequate and efficacious remedy.

27. It is an admitted position that any person aggrieved by an order passed or deemed to have been passed by the Tribunal under the Act is entitled to prefer an appeal before the Appellate Tribunal by virtue of Section 20 of the Act. The appeal has to be preferred within 45 days. Appeal can be entertained even after expiry of the period of limitation provided the Tribunal is satisfied that there was sufficient cause for nonfiling of the appeal within the prescribed time. The procedure to be followed by the Tribunal in deciding the appeal is the same as by the Tribunal for conduct of trial of applications, namely, the Tribunal shall not be bound by the principles laid down by the Code of Civil Procedure, but shall be guided by the principles of natural justice and subject to other provisions of the Rules. It has also powers to lay down its own procedures. Section 21 of the Act requires a party to make a deposit of 75% of the amount debt, so due from him, as determined by the Tribunal under Section 19 of the Act. Section 21 says that the appeal shall not be entertained by the Appellate Tribunal unless such deposit is made by the appellant. However, this requirement of deposit is subject to an exception and vast discretion is vested with the Tribunal by virtue of Section 21 of the Act for reasons to be recorded even to completely waive off or reduce the amount to be deposited by the appellant. Reading of provisions of Sections 20 and 21 of the Act thus makes it clear that though no appeal is entertainable without deposit of 75% of the amount adjudged by the Tribunal, but the Appellate Tribunal still has power to waive the entire amount or to reduce the same, for reasons to be recorded, for which we have no doubt that in case sufficient ground is made out by an appellant that the Appellate Tribunal will not exercise its jurisdiction judicially and in accordance with law of passing appropriate orders seeking waiver from deposit or reduction in the amount to be deposited as a condition precedent for maintainability of the appeal.

28. We may refer to some of the decisions cited by the respondent. In M.C.Mittal and others Vs. Central Bank of India and others, , Division Bench of this Court declined to entertain the writ petition challenging the order passed by the Tribunal refusing to grant permission to amend the written statement. It was held that any order referred to in sub-section (2) of Section 20 would include even interlocutory orders, which substantially affect rights of the parties against which an appeal is maintainable and as the petitioner had a wider remedy by way of appeal, the Court will not exercise its jurisdiction under Article 226 of the Constitution of India. Relying upon the said decision, learned Single Judge in M/s Shoes East Ltd. Vs. Allahabad Bank, , declined to hear the petition arising out of an order passed by the Tribunal refusing to stay the proceedings initiated against it by the Bank. In I.T.C. Vs. N.D.M.C., 1996 AIHC 4116, learned Single Judge of this Court declined to entertain writ petition holding that since there is no question of constitutional invalidity or any provision of law, there existed no special circumstance to justify the petitioner in by-passing the alternative remedy available to him to file appeal. Division Bench of Punjab and Haryana High Court in H.Paul and Co. Vs. Bank of India, 1998 ISJ (Banking) 550, did not entertain a writ petition against the order passed by the Tribunal rejecting the petitioner's application for setting aside ex-parte order. In S.Ravichandra Vs. Debt Recovery Tribunal, 1998 ISJ (Banking) 642, Karnataka High Court declined to entertain a petition against an order passed by the Tribunal declining to set aside ex-parte order. While reiterating principles of law that a writ petition is not intended to be substitute for appeals and revisions that may be provided under a statute where there is an efficacious alternative remedy in respect of the order under the statute itself, the parties aggrieved should avail the said remedy and normally a writ filed by such aggrieved person ignoring the statutory remedy will not be entertained. Though it was held that existence of an efficacious and adequate alternate remedy by itself has never come in the way of High Courts entertaining writ petitions under Article 226 of the Constitution of India:- (a) where there is complete lack of jurisdiction on the part of the authority or the Tribunal; (b) the order or action impugned prejudicial to the petitioner has been passed in violation of principles of natural justice; or (c) order or action impugned is arbitrary, unreasonable and unfair resulting in clear injustice to the petitioner and shocks the judicial conscience of the Court. In G. Siva Prasada Reddy & Co. and Another Vs. Presiding Officer, Debts Recovery Tribunal of A.P. & Karnataka and others, 1999 Bankmann 352, Andhra Pradesh High Court declined to entertain a petition against an order passed by the Tribunal holding:-

"It is not the case of the petitioners that there is no statutory appeal provided but they contend that the Appellate authority is also bound by the Act and Rules and cannot ask the first respondent-Tribunal to vary the amount in the Demand Notice dated 98-11-1998. We are not inclined to accept this contention of the petitioners for more reasons than one. Where statutory remedies are available or a Statutory Tribunal has been set up, a petition under Article 226 of the Constitution of India should not be entertained, unless the statutory remedies are ill-suited or where the alternative remedy is not effective or burdensome. In this case, petitioners have not contended that the filing of a statutory appeal is onerous or it involves inordinate delay or is illusory in nature, or the impugned order is palpably erroneous. Petitioners only contend that the Appellate Authority is bound by the Act and Rules and cannot ask the first respondent-Tribunal to vary the amount in the Demand Notice dated 9-11-1998. This contention of the petitioners is incongruous inasmuch as the Statutory Appellate Tribunal cannot deviate from the Rules framed under the Act and grant the relief to the petitioners. This tendency of the petitioners is reprehensible and we disapprove the same. When the statute provides an appellate forum, it is incumbent upon the petitioners to move the said appellate forum by filing an appeal against the decree of the first respondent-Tribunal. Having not done so, the petitioners are not entitled to move this Court invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India."

29. Division Bench of Andhra Pradesh in R. Adavaiah Vs. Union of India and others, 1999 Bankmann 307 declined to entertain a writ petition against an order passed by the Recovery Officer under the provisions of the Act.

30. Reference was also made to decision of Supreme Court in The Anant Mills Co. Ltd. etc. Vs. The State of Gujarat, by learned counsel for the respondent Bank on the point that imposing of condition for deposit of the amount or substantial part of the impugned amount as a condition precedent for filing appeal cannot be said to be invalid. The said decision holds:-

"It is significant that the right of appeal is conferred upon all persons who are aggrieved against the determination of tax or rateable value The bar created by Section 406(2)(e) to the entertainment of the appeal by a person who has not deposited the amount of tax due from him and who is not able to show to the appellate Judge that the deposit of the amount would cause him undue hardship arises out of his own omission and default. The above provision, in our opinion, has not the effect of making invidious distinction or creating two classes with the object of meting out differential treatment to them; it only spells out the consequences flowing from the omission and default of a person who despite the fact that the deposit of the amount found due from him would cause him no found due from him would cause him no hardship, declines of his own volition to deposit that amount. The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute book in Section 30 of the Indian Income-tax Act, 1992. The proviso to that section provided that no appeal shall lie against an order under sub-section (1) of Section 46 unless the tax had been paid. Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfillment of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern no contravention of Article 14 in it. A disability or disadvantage arising out of a party's own default or omission cannot be taken to be tantamount to the creation of two classes offensive to Article 14 of the Constitution, especially when that disability or disadvantage operates upon all persons who make the default or omission."

31. The writ petition was held as not maintainable in view of the availability of remedy of appeal provided under Section 20 of the Act by Madras High Court in Radha Ravi Vs. Indian Bank, 1999 ISJ (Banking) 421 and Division Bench of Gujarat High Court in Bank of India Vs. Baroda Cables, 1999 ISJ (Banking) 309.

32. As has been noticed above, it is not a case where statute requires the entire amount to be deposited before an appeal is entertained. It is only 75% of the adjudicated amount, which has to be paid and the statute also confers absolute discretion with the Appellate Tribunal to waive off the condition of deposit of the entire amount or a part thereof, which of course, has to be exercised by the Appellate Tribunal on assigning good and cogent reasons. Therefore, it cannot be said that the appeal is not an adequate remedy. It also cannot be said that the alternate remedy is onerous and not equally efficacious. The Appellate Authority while hearing the appeal will be entitled to pass such orders, as it may deem fit on merits of the case since the entire matter will be open before it.

33. The only other question in this case to be examined by us is whether the petitioners are justified in contending that while passing the order, the Tribunal violated the principles of natural justice. Answer obviously has to be in the negative. The Tribunal has passed a reasoned order considering the submissions made on behalf of the petitioners as well as the respondent Bank while deciding the application moved by the respondent Bank. Issue before the Tribunal was whether there is clear and unambiguous admission made by the petitioner admitting the claim of the respondent Bank so as to justify the passing of the final order without trial. The Tribunal did record such a finding after hearing the arguments. The respondent Bank had in the application stated that in which part of the pleadings and in what manner the petitioners had made admission. The petitioners had an occasion to meet the said plea of the respondent Bank opportunity was allowed to the petitioners to file reply to the said application, which was filed. Thereafter the case was adjourned for hearing arguments. Question whether or not Bank had concealed a part of the statement or whether it was the petitioners, who had manipulated the documents was also a matter of consideration before the Tribunal on which the Tribunal made its observations. The Tribunal while deciding the question did take into consideration the mandates of Section 19(3) and (4) which enjoined upon the Tribunal that even on the application filed by the respondent Bank after allowing opportunity of being heard to the petitioner, the Tribunal will pass such orders as it thinks fit to meet the ends of justice. Therefore, in the light of what has been stated above, it is not a case where it can be said that the application was decided without complying with the provisions of natural justice, which only require a notice to be issued to the petitioners pointing out that what was being claimed by the respondent Bank in the application. Opportunity was allowed to file reply thereto and on being heard, thereafter the Tribunal passed the order as it thought fit to meet the ends of justice. In case such an order has been passed on compliance of principles of natural justice, same is appealable under Section 20 of the Act and there is no reason why the petitioners should not have approached the Tribunal by filing an appeal and there is no reason why this Court should entertain the writ petition and then enter into merits of the case that whether or not there is admission or not or whether on that admission, final order should or should not be passed. All such matters have to be considered and decided by the Appellate Tribunal if and when an appeal is preferred before it. It is not a case falling in any of the exceptions, as have been discussed in our order entitling and enabling this Court to deviate from the settled principles that ordinarily the High Court shall refuse to interfere until the party aggrieved by the order has exhausted the statutory remedy, if any available. The rule is of policy, convenience and discretion rather than a rule of law. If the Authority acts without jurisdiction or does not observe the principles of natural justice or fair play, High Court would be competent to exercise its powers even if remedy of appeal was open and the aggrieved party did not avail of it. If the alternate statutory remedy is onerous or is not equally efficacious, High Court may examine the validity of acts done by the Authority notwithstanding the alternate remedy. The question is one of discretion and not of jurisdiction. In a case where infringement of fundamental rights is raised, High Court may in suitable case investigate into the case in order to give appropriate relief. Irrespective of the fact whether there was admission or not, the other question whether interest could be granted, is also a question, which has to be examined by the Tribunal, which is incompetent to decide.

34. When there is no infringement of fundamental right, no violation of principles of natural justice, we are of the view that it is a fit case where we should decline to entertain the writ petitions leaving it to the petitioners to seek their remedy, in accordance with law, making it clear that we have not made any observation on merits and it will be open for the petitioners, in case they are so advised, to avail of the said remedy, in accordance with law.

35. Both the petitions stand dismissed as aforementioned.

36. Interim orders stand vacated.