IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11504 of 2008 BANK OF BARODA Versus UNION OF INDIA & ORS ----------- For the Petitioner : Mr. Vivek Prasad For Respondent Nos. 2 & 3:Mr. Arvind Kr. Jha For Respondent Nos. 4 & 5:Mr. S.D. Sanjay ----- 03 03.09.2008 This writ application has been filed by the Bank of Baroda through its Divisional Manager, Boring Canal Road, Patna assailing the order of the Presiding Officer Debt Recovery Tribunal, Bihar at Patna dated 14.03.2007, passed in OA No. 60 of 2005, which was affirmed by the order dated 09.05.2008 of the Debt Recovery Appellate Tribunal. The respondents to this writ application include one Sri Parmeshwar Prasad, Sri Shyam Kishore Prasad and Smt. Urmila Devi, who were Directors of Respondent No. 2 M/s Aman Coke Plant Private Limited. All have appeared and with the consent of parties this writ application is being disposed of at the stage of admission of itself. The dispute in the present case lies in a narrow compass and the facts relevant thereto are short. M/s Aman Coke Plant Private Limited had sought several financial accommodations from the Respondent-Bank of Baroda including a cash credit facility. For securing the same Respondent No. 4 Shyam Kishore Prasad had not only given guarantee but had mortgaged some of his assets. The assets of the Company were also mortgaged. On - 2 - an alleged default, Bank of Baroda, the petitioner filed an original application before the Debt Recovery Tribunal, Bihar at Patna for a certificate for recovery of its dues from the Company, the guarantor and the sureties. This proceeding was initiated in the year 2005 and was registered as OA No. 60 of 2005 (Bank of Baroda Vs. M/s Aman Coke Plant Pvt. Ltd. and Anr.). While the matter was pending before the Debt Recovery Tribunal the Bank chose to proceed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter referred as “SRFAESI Act”). They issued notices in terms of Section 13 (2) of the SRFAESI Act and on receipt of reply and after rejecting the same they proceeded to take action in terms of Section 13 (4) of the SRFAESI Act against the properties mortgaged by Respondent No. 4, Sri Shyam Kishore Prasad, apart from other properties of other Directors, which were charged with the Bank. As noticed above, the first proceedings initiated were under the provisions of The Recovery of Debts Due to Banks and Financial Institution Act, 1993 and once these proceedings under Section 13 (4) of the SRFAESI Act were taken respondent- Shyam Kishore Prasad filed an application in the Debt Recovery Tribunal (DRT) in OA No. 60 of 2005, asking DRT to virtually injunct the proceedings under Section 13 (4) of the SRFAESI Act, as being taken out by the petitioner-Bank. This application was seriously objected to by the Bank, who was the applicant in the original application, on the specific ground that DRT lacked the jurisdiction to injunct the Bank in its action being taken in terms of Section 13 (4) of the SRFAESI Act. They specifically pointed out that Respondent No. 4 had specific statutory remedy by way of an - 3 - appeal in terms of Section 17 of the SRFAESI Act to the Debt Recovery Tribunal, in which, it was open to Respondent No. 4 to challenge the proceedings under Section 13 (4) of the SRFAESI Act, but, having avoided/failed to avail any such appeal, as statutorily provided, they cannot be permitted to seek the same very relief in an indirect method through a collateral proceeding. The Tribunal rejected the contention and as noticed above injunct the Bank from proceeding with action under Section 13 (4) of the SRFAESI Act, which order has not been interfered by the Debt Recovery Appellate Tribunal. Tribunal has merely held in the end that even though no appeal in terms of Section 17 of the SRFAESI Act has been filed in the Tribunal, if such appeal had been filed it had the jurisdiction and thus it was mere matter of formality which did not divest its authority, in the matter. It is the correctness of this stand taken by the Debt Recovery Tribunal or as affirmed by the Debt Recovery Appellate Tribunal that is in question. In my view, the answer to this question is one single line. It is well settled that when by law a procedure is prescribed to rule, to perform an act, then, the act must be done in that manner and all other modes are impliedly prohibited. This is what has been held by the Apex Court in the case of Hukam Chand Shyam Lal Vs. The Union of India and Ors. AIR 1976 Supreme Court 789 in paragraph 18: “……It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily - 4 - forbidden. It is all the more necessary to observe this rule where power is of a drastic nature……..” Here, as against actions taken under Section 13 (4) of the SRFAESI Act a specific statutory remedy in terms of Section 17 of the SRFAESI Act to the Debt Recovery Tribunal is provided in the form of an appeal to the Tribunal. Respondent No. 4, in stead of availing the said forum by filing an appeal chose to file miscellaneous application in OA No. 60 of 2005, where, he was a defendant and sought injunction and /or annulment of proceedings under Section 13 (4) of the SRFAESI Act. In other words, what the said respondent wanted from the DRT, which was exercising its independent jurisdiction under the DRT Act to exercise powers under the DRT Act to injunct the actions of the Bank taken under another statute of which Bank had the jurisdiction to take action being the SRFAESI Act. The said respondent was thus seeking to do indirectly, what it was prohibited from doing directly otherwise than by way of an appeal. This would have normally ended the matter. But, as the matter has been argued in extenso, I would refer two facets of the matter. The Recovery of Debts Due to Banks and Financial institutions Act, 1993 was enacted by the Central Government in the year 1993. The said Act provided for an expeditious procedure for recovery of dues of Banks and financial institutions with the intervention of independent impartial authority. Apparently, noticing that the procedure was still taking to long the SRFAESI Act was enacted in the year 2002. Here, Bank could on its own motion and by itself without intervention of any - 5 - other authority proceed to recover its dues. This is essentially the difference between the two Acts, in one assistance of an impartial authority is taken and in another the Bank proceeds on its own. Mr. S.D. Sanjay, learned counsel for the Respondent No. 4 submitted that in terms of Section 17 of the DRT Act read with Sections 19 and 22, thereof, the Debt Recovery Tribunal has the power to grant injunction. If it had the power to grant injunction, then, it could grant an injunction which in effect would injunct the Bank from exercising its independent statutory power in terms of Section 13 (4) of the SRFAESI Act. At the very out set, I cannot accept such a broad submission, for it would lead to chaos. It is undesirable in terms of Section 34 read with Section 35 of the SRFAESI Act, as the Apex Court has held in the case of M/s Transcore Vs.The Union of India and Anr. AIR 2007 Supreme Court 712, that the two Acts i.e. DRT Act and the SRFAESI Act are complimentary. They are complimentary, then, at least this much is there that the DRT is not an authority superior to that of Bank under the SRFAESI Act. The legislature recognized this and it is because of that in Section 17 of SRFAESI Act they provided an appeal to the DRT, against actions taken under Section 13 (4) of the SRFAESI Act. Thus, the jurisdiction of the DRT to interfere in matters pertaining to SRFAESI Act arises only when an appeal in terms of Section 17 of the SRFAESI Act is filed otherwise it has no jurisdiction over actions taken under Section 13 (4) of the SRFAESI Act. If no appeal in terms of Section 17 SRFAESI Act is filed, then, the Tribunal cannot assume or usurp jurisdiction nor can the same conferred on it by acts of parties. - 6 - Further, a reference to the Transco judgment (Supra) would show that their Lordships were conscious of Section 35 of the SRFAESI Act, which in no uncertain terms lays down that the provisions of the SRFAESI Act would override provision of any other Act which are in conflict thereto, but, their Lordships further held that the two Acts are not in conflict but were complimentary. Where the jurisdiction of the Tribunal is the dependent on an application (Appeal) being filed before it, then, under any assumed jurisdiction or inherent jurisdiction or on the ground that its jurisdiction were wider than Civil Court, as provided under the Code of Civil Procedure, it (DRT) cannot assume jurisdiction. Its jurisdiction is founded on an appeal being filed. To say that what the Tribunal was doing was to protect the property, which was in dispute in the OA 60 of 2005 on an application itself by the Bank for recovery of its dues and by this ingenious process by the Tribunal and as affirmed by the Appellate Tribunal, the Bank own effort to recover its dues had been injuncted. For grievance if any the remedy was in terms of Section 17 of the SRFAESI Act and not in this in-direct method. In my view, the two reasons for this gymnastic by Respondent No. 4 is the provision of fee as provided in Section 17 of the SRFAESI Act. If the said respondent chose to file an appeal, as he was statutorily bound, then he was required to deposit fee but in order to avoid payment of fee, this ingenious method was adopted to which regrettably and unfortunately the Tribunal and the Appellate Tribunal fell pray to. Thus, I find that the impugned orders cannot be sustained as (i) the Respondent No. 4 invoked the jurisdiction of DRT in a collateral proceedings in-directly - 7 - instead of filing appeal as statutorily provides and (ii) the DRT which had jurisdiction dependent on an appeal filed wrongly assumed jurisdiction in an independent collateral proceeding. The result is, this writ application is allowed. The orders of the Tribunal as affirmed by the Appellate Tribunal are set aside. Trivedi/ (Navaniti Prasad Singh,J.)