Gujarat High Court
Bank Of Baroda vs M/S Rrk Properties on 21 July, 2022
Bench: Bhargav D. Karia
C/SCA/19098/2021 ORDER DATED: 21/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19098 of 2021
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BANK OF BARODA
Versus
M/S RRK PROPERTIES
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Appearance:
MR BIJU A NAIR(5703) for the Petitioner(s) No. 1
MR DHAVAL D VYAS(3225) for the Respondent(s) No. 12,13,2,3
MR NV GANDHI(1693) for the Respondent(s) No. 6
MR. HARMISH K SHAH(2438) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1,10,11,14,5,7,8,9
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 21/07/2022
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned advocates for the respective parties.
2. The writ jurisdiction of this court is sought to be invoked by filing
this Special Civil Application by the petitioner, who has challenged
judgment and order dated 17.11.2021 passed by learned Presiding
Officer, Debt Recovery Tribunal-II, Ahmedabad, in Original Application
No. 570 of 2015. The Original Application filed by the petitioner bank
came to be dismissed and the directions were given as per the operative
order.
3. While learned advocate for the petitioner Mr. Biju Nair attempted
to submit that the Tribunal has committed certain errors including in
respect of grant of interest and inter alia in directing the applicant bank to
release the assets etc., it could not be disputed that alternative efficacious
statutory remedy in the nature of an appeal before the Appellate Tribunal
C/SCA/19098/2021 ORDER DATED: 21/07/2022
under section 20 of the Recovery of Dues and Bankruptcy Act, 1993, is
available to the petitioner.
4. Section 20 of the Act reads as under,
"20.Appeal to the Appellate Tribunal.--
(1) Save as provided in sub-section (2), any person aggrieved by an
order made, or deemed to have been made, by a Tribunal under this Act,
may prefer an appeal to an Appellate Tribunal having jurisdiction in the
matter.
(2) No appeal shall lie to the Appellate Tribunal from an order made by
a Tribunal with the consent of the parties.
(3) Every appeal under sub-section (1) shall be filed within a period of
thirty days the date on which a copy of the order made, or deemed to
have been made, by the Tribunal is received by him and it shall be in
such form and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an appeal
after the expiry of the said period of thirty days if it is satisfied
that there was sufficient cause for not filing it with in that period.
(4) On receipt of an appeal under sub-section (1) or under sub-section
(1) of section 181 of the Insolvency and Bankruptcy Code, 2016, the
Appellate Tribunal may, after giving the parties to the appeal, an
opportunity of being heard, pass such orders thereon as it thinks fit,
confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it
to the parties to the appeal and to the concerned Tribunal.
(6) The appeal filed before the Appellate Tribunal under sub-section (1)
shall be dealt with by it as expeditiously as possible and endeavour shall
be made by it to dispose of the appeal finally within six months from the
date of receipt of the appeal."
4.1 As per above provision in section 20(3), the appeal before the
C/SCA/19098/2021 ORDER DATED: 21/07/2022
Appellate Tribunal is permitted to be preferred within time of 30 days.
The Appellate Tribunal has powers to entertain the appeal upon sufficient
cause being established for not filling the same within the said time
period.
5. In view of the availability of remedy of Appeal as above and
further that the Appellate Tribunal would be the proper forum which can
go into all the issues including of facts, this court is not inclined to
entertain the writ petition. The petitioner deserves to be relegated to the
remedy of Appeal.
5.1 It transpires that the present Special Civil Application was filed
before this court at the relevant time in view of the fact that the
Chairperson of the Appellate Tribunal was not available. The invocation
of jurisdiction of this court in that light is reflected in petitioner's own
pleadings in paragraph No. 43 of the memorandum of the petition,
reproduced as under,
"It is submitted that the last Chairperson of the Debt Recovery Appellate
Tribunal, Mumbai has demitted the charge on 30.09.2021 and no
Chairperson has been appointed thereafter. To the best of the
knowledge, information and belief of the petitioner and from the
enquiries made it is understood that no other Debt Recovery Appellate
has been given charge of the Honorable DRAT, Mumbai. Hence, in the
present situation, the efficacious alternative remedy is not available to
the petitioner and hence practically no other remedy in eyes of law."
5.2 It was in the above circumstances that the petition was filed and
notice was issued by this court on 21.12.0221 and interim relief in terms
of para 48(b) was granted.
5.3 It was given out and was not disputed that now the Chairperson of
the appellate Tribunal has assumed the charge and the appellate Tribunal
C/SCA/19098/2021 ORDER DATED: 21/07/2022
is functional. Therefore, this petition is not entertained on the ground of
availability of alternative remedy of appeal as above.
6. It goes without saying that this court has not gone into the merits of
the case of either side much less has expressed any opinion on merits.
6.1 At this stage, learned advocate for the petitioner requested that
since the ad-interim relief has been operative, the same may be continued
till the petitioner approaches the Tribunal. The request is reasonable.
7. It is, accordingly, directed that interim relief granted by this court
as per order dated 21.12.2021 shall continue to operate for a period of
four weeks from today or till the date on which the petitioner's appeal is
placed before the Tribunal, whichever is earlier. It will be also
permissible for the petitioner to file application for interim stay before the
appellate Tribunal, which shall be considered by the Tribunal in
accordance with law and on its own merits.
8. It is clarified also that the time spent in prosecuting this petition
shall be considered as petitioner litigating bona fide.
9. The petition is disposed of in the above terms. Notice is discharged
subject to above observations and directions.
(N.V.ANJARIA, J)
(BHARGAV D. KARIA, J)
C.M. JOSHI
