1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE WRIT PETITION {LODGING} NO.531 OF 2010 The Sri Ganapathi Mills Company Limited .... Petitioner Vs. Oriental Bank of Commerce & Anr. .... Respondents S/Shri P.K. Dhakephalkar, Senior Advocate i/b A.S. Khan & Associates for the Petitioner. S/Shri Rabindra Hazari with K.S. Mukhtiar for Respondent No.1. CORAM: J.N. PATEL AND A.P. BHANGALE, JJ. DATED: MARCH 18, 2010 P.C: 1. Heard. By this writ petition under Article 226, 227 of the Constitution of India, the petitioner challenges the order dated 25-1-2010, passed by the Chairperson of the Debts Recovery Appellate Tribunal, Mumbai and prays that the same be quashed and set aside. 2. The facts, in brief, are that the petitioner is a Public Limited Company duly 2 registered under the Companies Act, 1956. The petitioner and respondent No.2-Alpic Finance Limited had entered into a Hire Purchase Agreement dated 3-5-1995 for erection of Wind Mills at Perungudi Village, Tirunelveli District in Tamilnadu. The petitioner agreed to pay instalments periodically and paid a sum of Rs.1,25,37,800/- (Rupees One Crore Twenty Five Lakhs Thirty Seven Thousand Eight Hundred) by February, 1998. Due to financial crisis, the petitioner could not make further payments but to discharge the liability, the petitioner transferred two Wind Mills in favour of M/s. Winever Investment Consultant Private Limited, Mumbai, a party identified by respondent No.2 and also conveyed land admeasuring 1.40 acres. The petitioner claims that the accounts with respondent No.3 were settled and the Hire Purchase Agreement was also terminated. The petitioner received legal notice from respondent No.1-Bank dated 20-7-2001, demanding a sum of Rs.1,64,00,000/- (Rupees One Crore Sixty Four Lakhs) since the petitioner had consented to and with respondent No.2 had created a charge over the Wind Mills hypothecated to the Bank. As the petitioner by its reply denied the liability to pay, the respondent-Bank initiated proceedings {O.A. No. 3 685 of 2001} before the Debt Recovery Tribunal, Mumbai, for recovery of the sum of Rs. 1,64,00,000/- with interest. The petitioner resisted the claim by filing Written Statement claiming that there was no privity of contract between the petitioner and the claimant-Bank. Decree came to be passed against the petitioner on 8-8-2005 and later a Demand Notice dated 2-11-2005 was also served on the petitioner in Recovery Proceeding No.224 of 2005. The petitioner challenged the Decree in the Debts Recovery Appellate Tribunal, Mumbai by preferring an appeal being Appeal No.409 of 2006. By an interim order dated 25-1-2010, the Debts Recovery Appellate Tribunal directed the petitioner to deposit a sum of Rs.50 lakhs within six weeks. The petitioner has impugned the said order in this petition. 3. The learned counsel appearing for the petitioner submitted that there was no privity of contract between the petitioner and respondent No.2 and that there was no legal obligation or requirement of the petitioner to pay the amount demanded by respondent No.1- Bank. He also submitted that the petitioner had not created any right in favour of respondent No.1-Bank. Reference is made to 4 Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 to argue that the petitioner could have been exempted from making deposit for want of privity of contract. 4. On the other hand, the learned counsel appearing for respondent No.1-Bank supported the impugned order. 5. The petitioner did not plead inability to make deposit in response to the recovery proceedings. Under the circumstances, there was no prayer made to waive the deposit. The impugned order, therefore, cannot be faulted. Since the recovery proceedings are still pending for final disposal, it is open for the petitioner to agitate the question of its liability before the Debts Recovery Appellate Tribunal, which can deal with and decide the disputed questions of fact. 6. We have perused the impugned order and the same appears to have been passed in accordance with law. The remedy of writ petition cannot be used to evade or delay the execution process in respect of payment of decreetal dues. We are of the view that this 5 Court cannot convert itself as a Court of Appeal to re-appreciate or evaluate evidence or substitute its own opinion over the discretion exercised by the Debts Recovery Appellate Tribunal. 7. In the circumstances, therefore, the impugned order does not disclose any infirmity or error of law so as to warrant interference in exercise of power under Article 226, 227 of the Constitution of India. Hence the petition fails and is hereby dismissed. No order as to costs. J.N. PATEL, J. A.P. BHANGALE, J.