WP(C) 1793/2003 BEFORE HON’BLE MR. JUSTICE B K SHARMA Both the writ petitions have been filed by the same petitioner i n respect of a debt recovery proceeding pending before the Debt Recovery Tribuna l at Guwahati. [2] In WP(C) No.6779/2002, following is the prayer : In the premises aforesaid, it is therefore prayed that Your Lordship may be pl eased to admit this petition, issue a rule calling upon the Respondents to show cause as to why a Writ of Certiorary shall not be issued for setting aside/quash ing the impugned order dated 2.9.02 passed by the Debt Recovery Tribunal, Guwaha ti in O.A. 37/2000 (Annexure no.XI) and a writ of Mandamus shall not be issued d irecting/commanding the Debt Recovery Tribunal, Guwahati to stay/keep in abeyanc e the order/judgment to be passed in O.A 37/2000 till disposal of the appeal No. 28/2002 pending before the DRAT at Kolkata and after hearing the cause or causes being shown be pleased to make the rule absolute and final and/or to pass such order or other orders as to Your Lordships may deem fit and proper to render com plete justice to the petitioner. And Pending hearing of the rule be pleased to stay the further proceeding in case no .O.A.37/2000 pending before the DRT, Guwahati with a direction to DRT, Guwahati not to pass or prohibit from passing any order/judgement in case no.O.A.37/2000 till disposal of the rule and to pass such order or direction to DRT Guwahati to render justice and relief to the petitioner. [3] In WP(C) 1793/2003 the prayer made is as follows: In the premises aforesaid, it is therefore prayed that Your Lordship may be pl eased to admit this petition. 1. Call for records of O.A.37/2000 from the DRT at Guwahati. 2. Call for internal audit reports of all the accounts of Guwahati Cotton M ills (P) Ltd. (P) Ltd. in Punjab National Bank, Zoo road branch upto the end of the year 2000. 3. Call for the records of the insurance claim policy no.1153020900813/94 i n New India Assurance Co. Ltd., A.T. Road Branch in the name of Guwahati Cotton Mill (P) Ltd. and Punjab National Bank, Zoo road Branch And Issue rule calling upon the respondents to show cause as to why writ of mandamus /Certiorari or any other appropriate Writ shall not be issued by the directing t he respondent no.2 for special auditing of all the accounts in the name of Guwah ati Cotton Mill (P) Ltd. in Punjab National Bank, Zoo Road Branch for a period f rom 1st January 1994 to 31st August 2000 under section 30 (1B) of Banking Regula tion Act 1949 as prayed in the petition And After hearing the parties and on perusal of the records and the causes being sho wn be pleased to make the rule absolute and final and/or to pass such order or o ther others a to Your Lordships may deem fit and proper to render complete justi ce to the petitioner And Pending hearing of the rule, be pleased to stay the further proceedings of the c ase no.O.A37/2000 before the DRT at Guwahati Punjab National Bank Vs. Guwahati C otton Mills (P) Ltd. and others. [4] The petitioner is the Director of the Company called M/s Guwahat i Cotton Mills (P) Ltd. The respondent Bank has extended working capital loan in the form of cash credit facilities to the said company to the extent of Rs.23,0 0,000/- (Rupees twenty three lakhs) under specific terms and conditions. When th ere was failure to repay the loan, the respondent Bank filed OA No.37/2000 in th e Debt Recovery Tribunal at Guwahati (hereinafter referred to as the Tribunal). According to the petitioner, although the OA has been filed against the company and the other Directors of the company and the guarantors, but it is the petitio ner, who alone is contesting the case. As per the allegations made in Para-3 of the writ petition being WP(C) No.6779/2002 (Hereinafter referred to as the first writ petition) the respondent Bank while filing the OA in the Tribunal has supp ressed some vital material facts and also provided certain misinformations for m isleading the Tribunal. An application was made by the petitioner for procuremen t of certain relevant documents as stated in Para-4 of the writ petition. [5] In Para-5 of the said writ petition, that the petitioner has sta ted about filing of two petitions on 11/12/2001 along with the written statement to produce the seizure list by the respondent Corporation of the immovable prop erties of the Company and for issuance of Commission by appointing Auditor for i nspection and auditing of accounts of the company. Objection being filed by the respondent Bank, the Tribunal fixed the matter for objection hearing on 07.03.20 02, 10.04.2002 and subsequently, on 16.05.2002 and 18.06.2002. According to the petitioner, when the parties were ready for objection hearing on 18.06.2002, the Tribunal refused to listen to the petitioner’s submission for objection hearing and passed the impugned order dated 18.06.2002 purportedly, modifying its earli er order dated 16.05.2002 and fixed the matter for filing of evidence-on- affida vit on 16.07.2002 by the petitioner, instead of proceeding with the objection he aring as per the previous order. For a ready reference, the said order dated 18. 06.2002 is reproduced below : O R D E R O.A. No.37/2000 18.06.2002 Learned Advocate on both sides are present. It is understood fro m both sides that they are satisfied with the documents furnished by each side. There is no grumble for supply of any further document. Learned Advocate for the defendant no.3 wanted to make submission about the objection and prayer relatin g to appointment of commission for auditing of accounts for issuance of commissi on to audit the accounts of the Bank. I find from the objection and prayer so ma de to this respect nothing more than creation of confusion. Defendant no.3 is ye t to file evidence on affidavit. It is the Law that the parties contesting must file evidence on affidavit and thereafter, if any, confusion or any point wanted to be clarified, they may make submission. Let the defendant no.3 file evidence on affidavit first and then any further matter regarding the prayer for appoint ment of commission or feasibility of such appointment may be taken into consider ation. Another opportunity is given to the defendant no.3 to file evidence on af fidavit on 16.07.2002. Sd/- Presiding Officer DEBTS RECOVERY TRIBUNAL GUWAHATI [6] It is stated in Para-9 of the writ petition that the petitioner decided to file a petition before this Court on 16.07.2002, on which date the Co urt was to reopen after vacation and accordingly, an application was filed befor e the Tribunal on 16.07.2002 seeking adjournment and made verbal submission as t o why the petitioner could not file his petition before this Court prior to 16.0 7.2002. Be it stated here that 16.07.2002 was the date fixed for filing of evide nce- on-affidavit by the petitioner. According to the petitioner, inspite of ver bal submissions the Tribunal refused to listen to the same and passed an order f ixing the matter for argument on the next date i.e. 01.08.2002 by closing the op portunity of filing evidence-on-affidavit by the petitioner. For a ready referen ce, the order dated 16.07.2002 is quoted below : O R D E R O.A. No.37/2000 16.07.2002 Applicant’s lawyer is present. Seen petition no.497/02 filed on behalf of defendant no.3 stating that the defendant no.3 is going to High Court to file a petition there, and thus sought an adjournment. The petition does not say in what connection the defendant no.3 is going to the High Court. It is up t o the defendant no.3 as the liberty is wide open to him to move any petition und er the Law, before the Hon’ble High Court, but here, so far as this Tribunal is concerned, last opportunity was given to the defendant no.3 to file evidence on affidavit today. The affidavit is not filed. The prayer for adjournment on such ground, mentioned in the aforesaid petition, is rejected. Fix 01/08/02 for argument. Sd/- PRESIDING Officer DEBTS RECOVERY TRIBUNAL GUWAHATI [7] In para-11 of the writ petition the statement made is that the p etitioner being aggrieved by the aforesaid orders dated 18.06.2002 and 16.07.200 2, passed by the Tribunal filed an appeal under Section 20 of the Debt Recovery Tribunal Act before the Debt Recovery Appellate Tribunal at Kolkata on 30.08.200 2 and moved on 02.09.2002 and that the same was registered as Appeal No.28/2002. The Appellate Tribunal did not grant any stay order. However, liberty was grant ed to the petitioner to serve Notice on the respondents. It has further been sta ted in Para-11 that prior to filing of the appeal before the Appellate Tribunal, the petitioner had moved this Court by filing WP(C) No.4595/2002 and WA No.446/ 2002. [8] It appears that the writ petition was dismissed by Annexure-6 or der dated 09.08.2002 and thereafter, the appeal preferred against the said order was also dismissed by order dated 27.08.2002. For a ready reference both the or ders are reproduced below : [1] O R D E R WP(C) No.4595/2002 09.08.2002 Heard Mrs. A. Sarma, Learned Advocate for the petitioner and Mr. Borkotoki, Learned Advocate for the Bank. This writ application has been filed challenging the order dated 16.07.2002 passed by the Presiding Officer, DRT in O.A No.37/00. An application was filed by the respondent bank for realisation of huge amount. That applicati on is pending since 2002. On 16.7.2002 the Tribunal passed the following impugne d order : Applicant’s lawyer is present. Seen petition no.497/02 filed on behalf of defen dant no.3 stating that the defendant no.3 is going to High Court to file a petit ion there, and thus sought an adjournment. The petition does not say in what con nection the defendant no.3 is going to the High Court. It is up to the defendant no.3 as the liberty is wide open to him to move any petition under the Law, bef ore the Hon’ble High Court, but here, so far as this Tribunal is concerned, last opportunity was given to the defendant no.3 to file evidence on affidavit today . The affidavit is not filed. The prayer for adjournment on such ground, mention ed in the aforesaid petition, is rejected. Fix 01/08/02 for argument. On 18.6.2002 the Tribunal passed the following order : Learned Advocate on both sides are present. It is understood from both sides th at they are satisfied with the documents furnished by each side. There is no gru mble for supply of any further document. Learned Advocate for the defendant no.3 wanted to make submission about the objection and prayer relating to appointmen t of commission for auditing of accounts for issuance of commission to audit the accounts of the Bank. I find from the objection and prayer so made to this resp ect nothing more than creation of confusion. Defendant no.3 is yet to file evide nce on affidavit. It is the Law that the parties contesting must file evidence o n affidavit and thereafter, if any, confusion or any point wanted to be clarifie d, they may make submission. Let the defendant no.3 file evidence on affidavit f irst and then any further matter regarding the prayer for appointment of commiss ion or feasibility of such appointment may be taken into consideration. Another opportunity is given to the defendant no.3 to file evidence on affidavit on 16.0 7.2002. After hearing the Learned Advocate for the parties and on perus al of the materials on record, I do not find any merit in this writ application and the same shall stand dismissed. [2] O R D E R W.A No.446/2002 in W.P.C No.4595/2002 27.08.2002 Heard Mr. A S Choudhury, learned counsel for the appellant. The appellant has an alternative efficacious remedy to file appe al against the order passed by the Tribunal under Section 20 of the Recovery of Debts Due to Banks and Financial Institution Act, 1993. That being the position, the appeal is not maintainable and shall stand dismissed. While considering the question of limitation the Appellate Tribu nal may take in to consideration the pendency of the writ petition/appeal before this court [9] Although, the petitioner has annexed the aforesaid two orders to the writ petition but there is no mention of the same in Para-11 of the writ pe tition in which, the writ petition and writ appeal have been referred to. From t he statements it appears that an impression is sought to be given that this Cour t provided for pursuing the alternative and efficacious remedy to the petitioner by preferring an appeal before the Appellate Tribunal. [10] When the matter was fixed for argument on 30.08.2002, but the pe titioner being away to Kolkata moved an application through his engaged counsel for an adjournment. However, the application intended to be filed on 30.08.2002, could be filed on 02.09.2002. The orders passed on 30.08.2002 and 02.09.2002 ar e as follows: O R D E R O.A.37/00 30.08.2002 Learned Counsels on both sides present. Learned Advocate for the defendants submits that the defendants are going to file a petition for adjourn ment, supported by affidavit because of some latest development in connection wi th writ petition filed by them before the Hon’ble High Court. Fix 2.9.2002 for f illing the petition intended to be filed by the defendants. Sd/- PRESIDING OFFICER 2.9.02 Learned Advocate for the applicant is present but none for the m ain defendants. There is also no petition filed by the main defendants, as it wa s submitted on the last date. Learned Advocate for the proforma defendant No.7 i s present. Argument heard. Fix 3.10.2002 for order. Sd/- PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL GUWAHATI [11] According to the petitioner, another application was filed on 26 .09.2002 for stay of the proceeding in OA No.37/2000, on the ground of pendency of the appeal before the Appellate Tribunal. However, the Tribunal refused to st ay the proceeding and fixed the matter for order/judgment on 03.10.2002. In Para -15 of the writ petition, which was filed on 16.07.2002, it has been stated that till filing of the writ petition no judgment/order had been passed. [12] It is in the aforesaid facts and circumstances, the instant writ petition was filed with the aforesaid prayer. This Court while entertaining the writ petition by order dated 17.10.2002, stayed the proceeding of OA No.37/2000 and it is submitted that the said proceeding is still pending in the Tribunal w ithout any finality. [13] As noted above, the petitioner had earlier approached this Court by filing WP(C) No.4595/2002 making a grievance against the aforesaid orders da ted 18.06.2002 and 16.07.2002, passed by the Tribunal in the same OA i.e. OA No. 36/2000. In the instant writ petition also, what is challenged is the consequent ial order passed by the Tribunal pursuant to the said two orders. This Court not icing the entire facts and circumstances dismissed the said writ petition by the aforesaid order dated 09.08.2002 against which, the petitioner had preferred wr it appeal being WA No.446/2002 and the same was also dismissed taking note of th e alternative remedy available to the petitioner. [14] In WP(C) No.1793/2003 (hereinafter referred to as the second wri t petition), the petitioner has made the above quoted prayer. The writ petition was entertained by order dated 11.03.2003. However, it was made clear that the p endency of the writ petition would not in any way make hindrance in the proceedi ng pending before the Tribunal. According to the petitioner, there is failure on the part of the respondent Bank to implicate the Managing Director of the compa ny of which, the petitioner is the Director. According to the petitioner, the lo an amount was grossly misappropriated by the Managing Director of the company. I n the writ petition, the petitioner has attributed fault on the part of the resp ondent Bank and the Managing Director of the company and on that basis, he has p rayed for auditing of all the accounts of the company. [15] The respondent Bank has filed its counter-affidavits in both the writ petitions denying the contentions raised in the writ petitions. In the aff idavit filed in WP(C) No.1793/2003 the respondent Bank has questioned the very m aintainability of the writ petitions. In this connection, the Bank has referred to the aforesaid two orders passed in the earlier writ petition and the writ app eal. The petitioner has also filed his affidavit-in-reply reiterating his stand in the writ petition. [16] I have heard Mrs. A Sharma, learned counsel for the petitioner a s well as Mr. P K Kalita, learned counsel representing the respondent Bank. I ha ve also heard Mr. M Bhuiyan, learned counsel appearing for the Reserve Bank of I ndia and Mr. S Dutta, learned counsel representing the respondent Insurance comp any. In addition to the argument advanced by the learned counsel for the petitio ner, she has also submitted a written argument enclosing therewith certain decis ions of the Apex Court and the High Courts. Alongwith the written argument the p etitioner has also enclosed a statement of accounts furnished by the Bank. [17] The decisions on which, Mrs. Sarma, the learned counsel for the petitioner has placed reliance are : i) 1984 (3) SCC 96, ii) AIR 1967 SC 1058, iii) AIR 1997 Gujrat 75, iv) AIR 1999 MAD 1, v) AIR 1967 SC 1322, vi) AIR 1966 SC 1370, vii) AIR 1989 SC 1528, viii) AIR 1966 SC 1370, ix) AIR 1983 P&H 244. [18] I have considered the rival submissions made by the learned coun sel for the parties and the entire materials on record. The writ appeal was dism issed by order dated 27.08.2002 noticing the alternative efficacious remedy open ed to the petitioner. Accordingly, the petitioner had also approached the Appell ate Tribunal at Kolkata and as disclosed in the counter-affidavit filed by the r espondent Bank, the appeal was dismissed by the judgment and order dated 26.02.2 003 holding interalia that & &.The appeal petition is frivolous and with deliber ate intent to frustrate the recovery proceedings, the appeal is accordingly dism issed. The appellant (Sri Dilip Sarma) shall pay the cost of appeal reasonably a ssessed at Rs.3,400/- (Rupees three thousand four hundred) only. [19] The aforesaid revelation made in the counter-affidavit has not b een denied by the petitioner in his affidavit-in-reply. Thus, the matter has att ained its finality before the Appellate Tribunal and the said order is not under challenge in this proceeding. After dismissal of the earlier writ petition ther e could not have been any occasion for the petitioner to approach this Court by filing the first writ petition and that too Virtually, on the same ground, as wa s agitated in the earlier writ petition. [20] In the given facts and circumstances, the Tribunal was justified in concluding the hearing and fixing the matter for further order/judgment. Mer ely because the petitioner had decided to approach the Appellate Tribunal and/or had filed the appeal before the Tribunal but there being no stay order, the Tri bunal was legally not precluded from hearing the matter. [21] In the second writ petition what has been contended is an intern al matter of the company. The writ petition is founded on various facts pertaini ng to the company. The petitioner has also made allegation against the Managing Director of the company and has prayed for auditing of all the accounts in the n ame of the company with the respondent Bank for the period from 01.01.1994 to 31 .08.2000. The Tribunal is concerned with the O.A filed by the respondent Bank to wards realisation of the loan amount. The Tribunal is not concerned with the int ernal matters of the company. [22] Although the petitioner has made allegations against the respond ent Bank and the respondent No.6 regarding the management and day to day affairs of the company but there is nothing to show that the petitioner, who is directl y associated and involved in the management of the company from 1993 that, he ha d ever disclosed his grievance to the Registrar of Companies or to the Bank. The Bank accounts could not have been operated by the Managing Director i.e. the re spondent No.6 without full knowledge and full consent of the petitioner. He had never raised any objection regarding the operation of the accounts by the respon dent No.6. The petitioner, who is a Director of the company all along participat ed in the management of the company and nothing had prevented him from raising a ppropriate objection to the Bank or to the Registrar of companies. Admittedly, h e did not do anything of the sort. The bundle of disputed questions of fact that has been raised in the writ petition cannot be gone into exercising writ jurisd iction under Article 226 of the Constitution of India. [23] From the materials on record what has appeared is that the respo ndent Bank filed the O.A. for recovery of its debts amount of Rs.36,45,200.06 wi th interest calculated as on 09.07.2000 from M/s. Guwahati Cotton Mills (Pvt.) L td. under Section 19 of Recovery of Debts due to Banks and Financial Institution s Act, 1993. In the O.A the particular debtor has been impleaded as defendant No .1 and its Directors as other defendants including the petitioner as defendant N o.3, who is contesting the proceeding before the Tribunal. The Tribunal in its o rder dated 18.06.2002 recorded the statements of both the sides in respect of th e documents furnished. It was recorded in the order that there was no more docum ents to be supplied. As regards the objection hearing, the Tribunal rightly obse rved that the same was just to create confusion while the petitioner was given o pportunity to file the evidence-on-affidavit. [24] On 16.07.2002 when the case was fixed for submission of evidence -on-affidavit by the petitioner, he filed the petition praying for adjournment o f the case. The Tribunal on perusal of the petition passed the above quoted orde r : [25] Meanwhile, the petitioner filed the aforementioned WP(C) No.4595 /2002 and thereafter, WA No.446/2002 and the orders passed therein have been not ed above. As disclosed in the counter-affidavit, the appeal of the petitioner be fore the Tribunal has also been dismissed. The manner and method in which the pe titioner has tried to scuttle the proceeding before the Tribunal by filing vario us applications/petitions have been described in Para-12 of the counter-affidavi t, which is quoted below : 12. That apparently to scuttle the respondent bank’s claim for recov ery its legitimate dues that petitioner filed another writ petition before this Hon’ble Court, being W.P.(C) No.1793/2003 which read as : ’ & & & & & & &It is absolutely made clear that the pendency of the writ petition b e this court would not in any way make hindrance in the proceeding pending befor e the Debts Recovery Tribunal and the Tribunal is free to proceed with the matte r.’ 13. That it is reiterated that in spite of several opportunities, th e petitioner failed and neglected to file its evidence-on-affidavit before the D ebts Recovery Tribunal, Guwahati and instead, with intent to delay the proceedin gs before the Debts Recovery Tribunal, Guwahati made diverse applications, viz., i) before the Debts Recovery Tribunal at Guwahati. ii) before this Hon.ble High Court in (a) W.P.(C) No.4595/02 (dismissed on 9-8-02) (b) W.P.(C) No.6779/02 (pending) (c) W.A No.446/02 in W.P.(C) No.4595/02 (dismissed on 27-8-02) (d) W.P.(C) No.1793/03 (Pending) (e) Misc Case No.837/03 (in W.P.(C) No.1793/03) ( pending ) iii) before the Debts Recovery Appellate Tribunal, Kolkata in Appeal No.Drat/ CAL/A-28/2002 (Dismissed on 26-2-2003) iv) before the Reserve Bank of