1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7703 OF 2008 WITH CIVIL APPLICATION NO. 6434 OF 2009 Jalgaon Merchants Co-operative Bank Ltd ...Petitioner Versus The Recovery Officer and others ...Respondents ..... Mr. S.S. Deve, advocate for the petitioner Mr. N.N. Kapadia, advocate for respondent No. 5 ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 05 .09.2009 OF ORDER DATE OF PRONOUCNEMENT : 10.09.2009 OF ORDER PER COURT:- 1 This petition is filed challenging the order dated 11.10.2006 passed by the Debt Recovery Tribunal, Aurangabad in Original Application No. 113 of 2004 and the order dated 25.11.2008 passed by the Recovery Officer, Debt Recovery Tribunal Aurangabad in Recovery application No. 70 of 2006. 2 The counsel appearing for the respondent No.5 has raised preliminary objection that in view of the alternate remedy of appeal 2 available under Section 20 and 30 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short “the said Act”), the present writ petition may not be entertained. In support of his said contention learned counsel for the respondent No.5 has placed reliance on the reported judgments of the Apex Court in the cases Punjab National Bank Vs. O.C. Krishnan and others reported in AIR 2001 SC 3208 and in the case of Oriental Bank of Commerce Vs Sunder Lal Jain and Anr. Reported in AIR 2008 SC 1339. 3 Learned counsel appearing for the petitioner submitted that though the alternate remedy is available still the present writ petition is maintainable. Learned counsel relied on the reported judgment of this Court in the case Suteja Suresh Mathkar Vs. Saroj Sadan Co- operative Housing Society Limited and others, reported in 2005 (1) Mh.L.J. 661 and submitted that this Court in para 5 of the said judgment has held that once the petition is admitted the petitioner cannot be non suited on the technical ground of availability of alternative remedy. Learned counsel further invited my attention to the reported judgment of this court in the case of Narendra Ishulal Rahangdale Vs. State of Maharashtra and others, reported in 2005 (3) Mh.L.J. 561 and submitted that though alternate remedy of appeal is available, in view of the pronouncements by this Court in aforesaid judgments, the writ petition is maintainable. 3 4 I have heard learned counsel appearing for the petitioner and learned counsel for the respondent No.5. I feel it appropriate to deal with a preliminary point raised by the respondent of having alternate remedy of appeal to challenge the impugned orders of Debt Recovery Tribunal, Aurangabad and order passed by the Recovery Officer, Debt Recovery Tribunal. 5 At this juncture, it would be appropriate to refer to the provisions of Section 20 and 30 of the said Act. The provisions of Section 20 and 30 reads thus :- “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 form 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 forty five days from 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 forty five days if it is satisfied that there was sufficient cause for not filing it within that period. 4 (4) On receipt of an appeal under sub-section (1), 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 udder sub-section (1) shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal.” “30. Appeal against the order of Recovery Officer._ (1) Notwithstanding anything contained in section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal. (2) On receipt of an appeal under sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such enquiry as it deems fit, confirm modify or set aside the order made by the Recovery Officer in exercise of his powers under sections 25 and 28 (both inclusive). On bare perusal of the provisions of Sections 20 and 30, it is clear that the petitioner could have availed remedy of appeal by challenging the order dated 11.10.2006 passed by the Tribunal in Original application No.113 of 2004 under Section 20 of the said Act 5 and order dated 25.11.2008 passed by the Recovery Officer of Tribunal Aurangabad in recovery application No. 70 of 2006 under Section 30 of the said Act. 6 The Hon'ble Supreme Court in the case of Punjab National Bank (Supra) in para 5 and 6 held thus:- “5. The High Court ought not to have exercised its jurisdiction under Article 227 in view of this provisions for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum.” “6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institution's There is hierarchy of appeal provided in the Act, namely, filing of an appeal under S. 20 and this fast track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Arts 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial produce demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High court should not have entertained the petition under Art. 227 of the Constitution and should have directed the respondent to take recourse to the 6 appeal mechanism provided by the Act.” Yet in another case i.e. in the case of Oriental Bank of Commerce (supra), the Apex Court in para 10 of the judgment held that in the facts of that case the High Court erred in issuing writ of mandamus directing the appellant bank to declare the respondents’ account as NPA and maintenance and further observed that respondent therein should have chosen to assail the decree by filing an appeal, which is a statutory remedy provided under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Therefore, in view of the two pronouncement referred above by the Hon'ble Apex Court, and in view of the alternate remedy available to the petitioner, the writ petition deserves to be dismissed. 7 Though learned counsel appearing for the petitioner has relied on the judgment of this Court in the case of Suteja Suresh Mathkar (supra), however, in that case the writ petition was already admitted, whereas in the present case, the petition is not admitted, therefore, the reliance placed by the learned counsel for the petitioner on the said judgment is wholly misplaced. So far as the another judgment of this Court in case of Narendra Ishulal Rahangdale (supra) concerned, there cannot be any dispute about observations by this Court in the said judgment that if the facts of case demand entertaining the grievance of the parties under Article 226 of the Constitution of India, it 7 is not necessary that such party relegated to the alternative remedy available to such party. However, in view of the clear language of Section 20 and 30 of the said Act and in view of the two pronouncements of the Hon'ble Apex Court directly on the issue, present writ petition stands dismissed in view of the alternate remedy of appeal available under Section 20 and 30 of the said Act. 8 It will be open for the petitioner to avail alternate remedy as available in law. This court has not expressed any opinion on merits of the matter. Interim order dated 29.12.2008 stands vacated. 9 Civil application No.6434 of 2009 does not survive and the same is disposed of as infructuous. (S.S. SHINDE, J.) At this stage, learned counsel appearing for the petitioner prays for continuation of interim order granted dated 29.12.2008, for further period of four weeks to enable the petitioner to file an appeal before the appropriate forum. Counsel appearing for the respondent vehemently opposed the said prayer. However, I feel it appropriate to continue the interim order dated 29.12.2008 for a further period of four weeks to enable the petitioner to prefer appeal before the appropriate forum. Hence, interim order granted on 29.12.2008, stands continued for a period of four weeks from today. *****