M/S.Selva Ganapathy Rice Mill, Vs. the Deputy General Manager, and anr. - Court Judgment

Excerpt:
prayer: writ petition is filed under article 226 of the constitution of india praying for the issuance of writ of certiorarified mandamus, to call for the records of the first respondent in m.p. no.93 of 2006 and to quash the impugned order dated 28.11.2006 and to further direct the first respondent to entertain the appeal filed by the petitioner against the assessment order dated 27.06.2006 passed by the second respondent in tngst 0923182/2004-2005 in view of the time granted by the division bench of the madras high court in w.a. no.1173 of 2006 dated 11.09.2006.o r d e r1. the writ petition has been filed under article 226 of the constitution of india, seeking an order in the nature of writ of certiorari, calling for the records relating to the impugned order passed by the debt recovery officer, debt recovery tribunal, coimbatore, third respondent herein, in his proceedings no.r.p.no.25/06 in drc.no.24/06, dated 20.12.2006 and to quash the same. 2. the brief facts of the case are as follows:the petitioner is a partnership firm and the writ petition has been filed by its managing partner. the petitioner firm running a rice mill in the name and style of m/s.selva ganapathy rice mill at kangayam, erode district. in order to improve the rice mill business, the firm approached the state bank of india, kangayam branch and obtained loan by furnishing immovable property as security. rs.10, 50,000/- and rs.5,00,000/- have been sanctioned towards the term loan and working capital. 3. according to the petitioner, a sum of rs.5,00,000/- was subsequently repaid. the second respondent bank approached the debt recovery tribunal, chennai by way of o.a.no.646 of 2001. it was transferred to the debt recovery tribunal, coimbatore and re-numbered as t.a.no.1796 of 2002, for recovery of rs.18,00,000/-. subsequently, there was negotiated compromise between the parties and a compromise memo in i.a.no.42 of 2006 was filed by both the parties, and in terms of the compromise memo, orders were passed by the debt recovery tribunal on 22.02.2006. the operative portion of the order reads as follows: "in the result, the applicant bank is given a final order directing the defendants to pay to the applicant bank the sum of rs.10,00,000/- (rupees ten lakhs only) on or before 22.03.2006 and the sum of rs.12,00,000/- (rupees twelve lakhs only) together with interest on the sum of rs.22,00,000/- (rupees twenty two lakhs only) @ 10.25% per annum from 10.01.2006, the date of the compromise to the date of payment, within 6 months from the date of payment of the aforesaid amount of rs.10,00,000/- (rupees ten lakhs only) in full and final settlement of the claim made in the t.a. in the event of their committing default in paying any of the aforesaid amounts within the stipulated time, the applicant bank is allowed to recover the sum of rs.17,99,624.71 (rupees seventeen lakhs ninety nine thousand six hundred and twenty four and paise seventy only only) with interest @ 13% per annum with quarterly rests from 01.10.2001, the date of the oa till realization and also its costs from the defendants jointly and severally by sale of "a" to "e" schedule properties. "a" to "e" schedules to the ta shall be appended to this order." 4. as the petitioner has not paid the entire amount in terms of the orders passed by the debt recovery tribunal, based on the compromise memo, proceedings were initiated by the second respondent bank through the third respondent. challenging the order dated 20.12.2006, passed in proceedings no.r.p.no.25/06 and d.r.c.no.24/06 on the file of the third respondent, this writ petition has been filed. 5. learned counsel for the respondents 1 and 2 submitted that the order has been passed on compromise memo filed by both the parties under section 30 of the debt recovery tribunal, which reads as follows: "30.appeal against the order of the recovery officer: (1)notwithstanding anyway 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 to 28 (both inclusive)." 6. as contended by the learned counsel for the respondents 1 and 2, against the order passed by the debt recovery officer, the petitioner can make an appeal within a period of 30 days from the date of the order before the appellate authority. it is seen from the order passed by the tribunal that the tribunal after giving opportunity to the appellant, passed appropriate orders. in the instant case, admittedly the impugned order was passed in terms of the compromise memo filed by both the parties on 22.02.2006 in i.a.no.42/2006, on the file of the debt recovery tribunal, coimbatore. then the appeal remedy is available. it is not open to the petitioner to file writ petition by invoking under article 226 of constitution of india, when efficacious alternative remedy is available to the aggrieved party and further, as contended by the learned counsel for the respondents 1 and 2, there is no illegality in the impugned order, so as to warrant any interference by the court. it is not in dispute that the joint memo of compromise was filed on 22.02.2006 by consent of both the parties. as the petitioner firm has not settled the dues in terms of the compromise decree, there was no other go for the respondents 1 and 2, except to proceed against the debtor, according to law. as such there is no illegality in the order passed by the third respondent and also there is statutory alternative remedy available, in the absence of any illegality in the order passed by the third respondent infringing the fundamental rights of the petitioner, i am of the view the writ petition is not sustainable in law and the same is liable to be dismissed. 7. in the result, this writ petition is dismissed. consequently, connected miscellaneous petitions are closed. no order as to costs.

Judgment:
O R D E R

1. The writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of Certiorari, calling for the records relating to the impugned order passed by the Debt Recovery Officer, Debt Recovery Tribunal, Coimbatore, third respondent herein, in his proceedings No.R.P.No.25/06 in DRC.No.24/06, dated 20.12.2006 and to quash the same.

2. The brief facts of the case are as follows:

The petitioner is a partnership firm and the writ petition has been filed by its managing partner. The petitioner firm running a rice mill in the name and style of M/s.Selva Ganapathy Rice Mill at Kangayam, Erode District. In order to improve the rice mill business, the firm approached the State Bank of India, Kangayam Branch and obtained loan by furnishing immovable property as security. Rs.10, 50,000/- and Rs.5,00,000/- have been sanctioned towards the term loan and working capital.

3. According to the petitioner, a sum of Rs.5,00,000/- was subsequently repaid. The second respondent Bank approached the Debt Recovery Tribunal, Chennai by way of O.A.No.646 of 2001. It was transferred to the Debt Recovery Tribunal, Coimbatore and re-numbered as T.A.No.1796 of 2002, for recovery of Rs.18,00,000/-. Subsequently, there was negotiated compromise between the parties and a compromise memo in I.A.No.42 of 2006 was filed by both the parties, and in terms of the compromise memo, orders were passed by the Debt Recovery Tribunal on 22.02.2006. The operative portion of the order reads as follows: "In the result, the applicant bank is given a final order directing the defendants to pay to the applicant bank the sum of Rs.10,00,000/- (Rupees Ten lakhs only) on or before 22.03.2006 and the sum of Rs.12,00,000/- (Rupees Twelve lakhs only) together with interest on the sum of Rs.22,00,000/- (Rupees Twenty two lakhs only) @ 10.25% per annum from 10.01.2006, the date of the compromise to the date of payment, within 6 months from the date of payment of the aforesaid amount of Rs.10,00,000/- (Rupees Ten lakhs only) in full and final settlement of the claim made in the T.A. In the event of their committing default in paying any of the aforesaid amounts within the stipulated time, the applicant bank is allowed to recover the sum of Rs.17,99,624.71 (Rupees Seventeen lakhs ninety nine thousand six hundred and twenty four and paise seventy only only) with interest @ 13% per annum with quarterly rests from 01.10.2001, the date of the OA till realization and also its costs from the defendants jointly and severally by sale of "A" to "E" schedule properties. "A" to "E" schedules to the TA shall be appended to this order."

4. As the petitioner has not paid the entire amount in terms of the orders passed by the Debt Recovery Tribunal, based on the compromise memo, proceedings were initiated by the second respondent Bank through the third respondent. Challenging the order dated 20.12.2006, passed in Proceedings No.R.P.No.25/06 and D.R.C.No.24/06 on the file of the third respondent, this writ petition has been filed.

5. Learned counsel for the respondents 1 and 2 submitted that the order has been passed on compromise memo filed by both the parties under Section 30 of the Debt Recovery Tribunal, which reads as follows: "30.Appeal against the order of the Recovery Officer: (1)Notwithstanding anyway 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 to 28 (both inclusive)."

6. As contended by the learned counsel for the respondents 1 and 2, against the order passed by the Debt Recovery Officer, the petitioner can make an appeal within a period of 30 days from the date of the order before the Appellate Authority. It is seen from the order passed by the Tribunal that the Tribunal after giving opportunity to the appellant, passed appropriate orders. In the instant case, admittedly the impugned order was passed in terms of the compromise memo filed by both the parties on 22.02.2006 in I.A.No.42/2006, on the file of the Debt Recovery Tribunal, Coimbatore. Then the appeal remedy is available. It is not open to the petitioner to file writ petition by invoking under Article 226 of Constitution of India, when efficacious alternative remedy is available to the aggrieved party and further, as contended by the learned counsel for the respondents 1 and 2, there is no illegality in the impugned order, so as to warrant any interference by the Court. It is not in dispute that the joint memo of compromise was filed on 22.02.2006 by consent of both the parties. As the petitioner firm has not settled the dues in terms of the compromise decree, there was no other go for the respondents 1 and 2, except to proceed against the debtor, according to law. As such there is no illegality in the order passed by the third respondent and also there is statutory alternative remedy available, in the absence of any illegality in the order passed by the third respondent infringing the fundamental rights of the petitioner, I am of the view the writ petition is not sustainable in law and the same is liable to be dismissed.

7. In the result, this writ petition is dismissed. Consequently, connected miscellaneous petitions are closed. No order as to costs.