Judgment:
B.N. Mahapatra, J.
1. This Writ Petition has been filed for quashing the Order Dated 21.04.2005 (Annexure-1) by which the Petitioner's application to cross-examine the officers of the Bank, who had filed evidence in chief in T.C. No. 112/2001, was rejected and the Order Dated 27.07.2005 by which the matter was posted to 25.08.2005 for orders without giving him opportunity of being heard on the merits of the case.
2. Facts and circumstances giving rise to the present Writ Petition are that the Petitioner being an erstwhile Director of the Opposite Party No. 2-Company, had executed a guarantee deed in favour of Opposite Party No. 5-Bank for the purpose of taking loan for smooth running of business of the company in the year 1987. Petitioner resigned from the company in the year 1988. Since the company violated the terms and conditions of the loan agreement, Opposite Party-Bank initiated recovery proceeding in the year 1991 by preferring TMS No. 51/1991 before the Subordinate Judge, Bhubaneswar impleading the present Petitioner as one of the defendants in the said proceeding. After establishment of the Debts Recovery Tribunal (for short, 'the Tribunal'), the said case was transferred to the Tribunal and renumbered as TC No. 112/2001. On 09.05.2002, Opposite Party-Bank filed its affidavit on evidence in-chief in support of its claim through its Branch Manager, a copy of which was served upon the Learned Counsel for the Petitioner on 04.12.2004. On receipt of the said affidavit, the Petitioner filed an application before the Tribunal for a direction to Opposite Party-Bank to produce all the documents on which reliance had been made to establish the claim of the Bank against the Petitioner. Learned Tribunal vide its Order Dated 29.12.2004 directed the Bank to produce the said documents. On 09.03.2005, the present Petitioner filed an application before the Tribunal to cross-examine the person who had filed evidence in-chief on behalf of the Bank impleading him as one of the party to the proceeding. After hearing the parties, the Learned Tribunal rejected the application of the Petitioner to cross-examine the officers of the Bank on the ground that by such cross-examination no fruitful result would come out since the documents on record were sufficient to prove the present Petitioner as a guarantor to the said guaranteed deed and the purpose of the Petitioner was only to drag the proceeding. Since the arguments of Counsel for the applicant-Bank and Counsel for D2(a) to D2(c) and D3 were already heard on 10.06.2005 and after availing sufficient opportunity Counsel for the Petitioner did not take his defence, Learned Tribunal on 27.07.2005 posted the matter to 25.08.2005 for orders. Hence, this petition.
3. This Court vide Order Dated 24.8.2005 stayed the further proceedings in TC No. 112/2001 pending before the Learned Tribunal in Annexure-2 till the next date.
4. At the outset, Mr. D.K. Mishra, Learned Counsel appearing for the Opposite Party-Bank raised a preliminary objection on the point of maintainability of the Writ Petition. He submitted that since alternative remedy by way of appeal is available to the Petitioner against the order of the Tribunal, the Petitioner should not have invoked the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. According to Mr. Mishra, it is open for the Petitioner to file an appeal under Section 20 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act, 1993') against the orders of the Learned Tribunal dated 21.4.2005 and 27.07.2005. In support of his contention, he relied on the Judgment of the Hon'ble Supreme Court in the case of Union of India and Anr. v. Delhi High Court Bar Association and Ors. : [2002]2SCR450 , Kowa Spinning Ltd. and Ors. etc. v. Debt Recovery Tribunal and Ors. : AIR2004MP1 and Judgment of this Court in State Bank of India v. Allied Chemical Laboratories and Anr. 2005 (II) OLR (SC) 596.
5. Mr. Mohanty, Learned Counsel appearing on behalf of the Petitioner submitted that alternative remedy is not a bar to invoke writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. He further submitted that an appeal under Section 20 of the Act, 1993 can be preferred only against the final order and Judgment of the Learned Tribunal and no appeal can lie against any interim order. Therefore, the only remedy available to the Petitioner is to invoke the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
6. In view of the rival contentions advanced at the Bar, the questions that fall for consideration by this Court are as follows:
(i) Whether any appeal can be preferred under Section 20 of the Act, 1993 against any order other than the final order passed by the Tribunal?
(ii) Whether alternative remedy is a bar to invoke writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India on the facts and circumstances of the case?
7. To deal with the first question, it is relevant to refer the provisions contained in Section 20 of the Act, 1993, which provides for appeal to the Appellate Tribunal. The relevant provisions of Section 20 of the Act, 1993, are quoted herein below:
20. Appeal to the Appellate Tribunal.-(I) 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.
A plain reading of Sub-section (1) of Section 20 of the Act makes it clear that any person aggrieved by an order made or deemed to have been made by a Tribunal may prefer an appeal to the Appellate Tribunal having jurisdiction in the matter. Thus, it does not say that only against the final order of the Tribunal appeal can be preferred to the Appellate Tribunal. The only embargo provided in Sub-section (2) is that an order which is made by the Learned Tribunal with the consent of the parties is not appealable to Appellate Tribunal.
8. The Madhya Pradesh High Court in M/s Kowa Spinning Ltd. (supra) held that an appeal lies to the Appellate Tribunal against any order or an order, which substantially affects some rights or liabilities of the party and is not confined to the final order alone. Section 17(2) uses the words 'any order made' and Section 20(1) uses the words 'an order made'. There is difference between the two terms, namely, 'an' and 'any'. If the words used are understood in proper perspective taking into consideration the text and context, the expressions used in Sections 17 and 20 are not repugnant to each other. In fact, they point out to a complete harmonious whole leading to a specific, precise, appropriate destination i.e. the tenability of appeal from an order or any order. The term 'an order' would convey that an appeal lies against the interim order, which substantially affects the rights of the parties and those words are not confined to an order, which finally disposes an application before the tribunal.
Therefore, we are of the view that appeal can lie under Section 20 of the Act, 1993 to the Appellate Tribunal against any order passed by the Tribunal.
9. So far as the second question is concerned, law is well settled that the Court must be very much cautious while exercising the jurisdiction under Articles 226 and 227 of the Constitution of India where statutory remedy is available,.
In Punjab National Bank v. O.C. Krishnan and Ors. : AIR2001SC3208 , the Hon'ble Supreme Court while considering the issue of alternative remedy observed as under:
The act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast track procedure cannot be allowed to be detailed either by taking recourse to proceedings under Arts. 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 prudence 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 Article 227 of the Constitution and should have directed the Respondent to take recourse to the appeal mechanism provided by the Act.
The Constitution Bench of the Hon'ble Supreme Court, in State of U.P. v. Mohammed Nooh AIR 1958 SC 86, held as follows:.save in exceptional cases, the Courts will not interfere under Article 226 until all normal remedies available to a Petitioner have been exhausted. The normal remedies in a case of this kind are appeal or revision. It is true that on a matter of jurisdiction, or on a question that goes to the root of the case, the High Courts can entertain a petition at an earlier stage but they are not bound to do so and a petition would not be thrown out because the Petitioner had done that which the Courts usually direct him to do, namely, to exhausi his normal remedies before invoking an extraordinary jurisdiction. The Petitioner would have been expected to pursue his remedies of appeal and revision first and could not have come to the High Court in the ordinary way until he had exhausted them....
In N.T. Veluswami Thevar v. G. Raja Nainar and Ors. : AIR1959SC422 , the Apex Court held 'that the jurisdiction of the High Court to issue writs against the orders of the tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court must properly exercise its discretion in declining to interfere under Article 226 of the Constitution.
In S.T. Muthusami v. K. Natarajan and Ors. : [1988]2SCR759 , the Hon'ble Supreme Court held that the High Court is not justified in exercising powers under writ jurisdiction if an efficacious alternative remedy is available to the party.
In Kerala State Electricity Board and Anr. v. Kurien E. Kalathil and Ors. : AIR2000SC2573 , while dealing with a similar issue, the Apex Court held that the Writ Petition should not be entertained unless the party exhausted the alternative) statutory efficacious remedy.
In C.A. Abraham v. Income-tax officer, Kottayam and Anr. : [1961]41ITR425(SC) and H.B. Gandhi, Excise & Taxation Officer-cum-Assessing Authority, Karnal and Ors. v. Gopinath & Sons and Ors. , the Apex Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.
In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. : AIR1999SC22 and Tin Plate Co. of India Ltd. v. State of Bihar and Ors. : AIR1999SC74 , the Apex Court came to the conclusion that writ should not generally be entertained if statute provide for remedy of appeal and even if it has been admitted, parties should be relegated to the alternative forum.
In Sheela Devi v. Jaspal Singh (1999) 1 SC 209, the Apex Court has held that if the statute itself provides for a remedy of revision, writ jurisdiction cannot be invoked.
A Constitution Bench of the Hon'ble Supreme Court, in G. Veerappa Pillai v. Raman & Raman Ltd. and Ors. : [1952]1SCR583 , held that as the Motor Vehicles Act is a self contained code and itself provides for appealable/revisable forum, the writ jurisdiction should not be invoked generally in matters relating to its provision.
Again a Constitution Bench of the Hon'ble Supreme Court, in Union of India v. T.R. Varma : (1958)IILLJ259SC , held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ.
A Constitution Bench of the Hon'ble Supremo Court, in K.S. Rashid & Son v. Income Tax Investigation Commission and Ors. : [1954]25ITR167(SC) , held that Article 226 of the Constitution confers on all the High Courts new and very wide powers in the matter of issuing writs. The said power is limited. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewnere.
In M/s. Allied Chemical Laboratories (supra), the Apex Court held as follows:.We have heard Counsel for the parties. We fail to understand how the High Court could have exercised its jurisdiction under Articles 226 and 227 of the Constitution to set side a decree/final order passed by the DRT on 9.04.2003, in a collateral proceeding wherein the decree/final order was challenged indirectly on the ground that the application of the Respondent for cross-examining the deponent had earlier been wrongly rejected. We have no hesitation in holding that when the DRT did not accede to the request of the Respondent to cross-examine the deponent, it could have, in the appeal preferred by it, assailed the decree/final order on that ground and the Appellate authority would have passed appropriate orders. The mere fact that the Respondent had not been given an opportunity to cross-examine the deponent did not enable the Respondent to by-pass the provision for appeal and approach the High Court directly by a Writ Petition under Articles 226 and 227 of the Constitution of India, challenging the decree/ final order on the ground that the order earlier passed, refusing to permit the cross-examination of the deponent, was erroneous.
In the facts and circumstances of this case, we hold that the Respondent ought to have availed the remedy provided under Section 20 of the Act and preferred an appeal before the Appellate Tribunal wherein he could have urged all his grievances and challenged the decree/final order passed by the DRT. The order passed by the High Court in exercise of writ jurisdiction is wholly unjustified and it is accordingly set aside....
In Delhi High Court Bar Association (supra), the Apex Court held as follows:.When the High Courts and the Supreme Court in exercise of their jurisdiction under Article 226 and Article 32 can decide questions of fact as well as law merely on the basis of documents and affidavits filed before it ordinarily, there should be no reason as to why a Tribunal, likewise, should not be able to decide the case merely on the basis of documents and affidavits before it. It is common knowledge that hardly any transaction with the Bank would be oral and without proper documentation, whether in the form of letters or formal agreements. In such an event the bona fide need for the oral examination of a witness should rarely arise. There has to be a very good reason to hold that affidavits in such a case, would not be sufficient.
10. The Act, 1993 has been enacted with a view to provide special procedure for recovery of debts due to the banks and financial institutions. It is a self-contained Code and the statute itself provides a hierarchy of appeal. Since alternative remedy by way of appeal is available under Section 20 of the Act, 1993, the judicial prudence demands that the Court should normally refrain from exercising its jurisdiction under Articles 226 and 227 of the Constitution of India.
11. In view of the above, we are not inclined to entertain the Writ Petition, which is accordingly dismissed with liberty to the Petitioner to approach the Appellate Tribunal.
In case, the Petitioner files an appeal under Section 20 of the Act, 1993 along with a petition for condonation of delay within a period of four weeks from today, the Appellate authority shall consider the question of delay taking into consideration that the Writ Petition was pending in this Court since 22.08.2005. If any petition for interim relief is filed, the same may also be decided within a period of two weeks from the date of its filing after giving opportunity of hearing to all the parties.
12. Interim Order Dated 24.08.2005 shall continue to operate for a further period of six weeks from today.
There shall be no order as to costs.
L. Mohapatra, J.
13. I agree.