TaxTMI 
TaxTMI 
2016 (3) TMI 333
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.... thereupon initiated recovery proceedings against the petitioners. One of the properties of the petitioner, namely, land bearing block No.278paiki admeasuring 3631 sq.mtrs., of Village : Gadhoda, Taluka : Himmatnagar, alongwith factory building thereon came to be attached by the Recovery Officer on 9.9.2003. The Recovery Officer thereafter put the property to auction. Earlier auction attempts having failed, a fresh attempt was made in September, 2009. On 22.9.2009, the Recovery Officer noted that the auction was fixed on that day, only one bidder, namely, one Shri Gopalkrishnan Dahyabhai Patel, the respondent No.2 herein had submitted his bid for an amount of Rs. 21 lacs against the reserved price of Rs. 21 lacs. He had also attached the demand draft for a sum of Rs. 5.25 lacs. He was persuaded to raise his bid to Rs. 21.05 lacs. In view of such developments the Recovery Officer on 22.9.2009 passed the following order :" In view of the above the following order is passed : 1. The offer received for the above mentioned immovable property from Shri Gopalkrishna D. Patel for an amount of Rs. 21.05 lacs against the reserve price of Rs. 21.00 lacs is hereby accepted. 2. Successf....
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....years. The said auction of the property therefore could not have been effected on the basis of such attachment order. The respondents i.e. the Dena Bank and the sole auction participant opposed the appeal on the ground of maintainability. It was argued that the Recovery Officer had not carried out any adjudication of rival disputes, such order was therefore not appealable under Section 30 of the RDDB Act. 5. The DRT, Ahmedabad by an order dated 29.3.2010 dismissed the appeal of the petitioners. It was held that the issues sought to be raised before the Tribunal were not raised before the Recovery Officer. In the opinion of the Tribunal unless such matters were adjudicated before the Recovery Officer by filing objections and were adjudicated by the Recovery Officer, the parties cannot straightaway come to the Tribunal by filing appeal under Section 30 of the RDDB Act. Despite the above conclusion the Tribunal proceeded to consider the contentions of the petitioners on merits as well. With respect to not maintaining timegap of 30 days between proclamation and auction, the Tribunal observed that such issue was not raised before the Recovery Officer and further in order to set aside t....
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....ce. Unless and until such issues are allowed to be raised, the petitioners would suffer irreparable injury. 8. In support of his contention that appeal against any order of the Recovery Officer is maintainable under Section 30 of the RDDB Act, counsel relied on the following decisions :( 1) Union of India and another v. Delhi High Court Bar Association and others, AIR 2002 SC 1479 (2) Unreported judgment of learned Single Judge dated 25.4.2008 passed in Special Civil Application No.28784 of 2007 in case of Panchmahal Steel Ltd., vs. The Bank of Baroda, (3) The decision of Division Bench of this Court in the case of Bank of Baroda vs. Balbir Kumar Paul and ors., reported in 2010 (2) GLH 790, (4) Official Liquidator, Uttar Pradesh and Uttarakhand vs. Allahabad Bank and ors., reported in (2013) 4 SCC 381, (5) Sanjay Singh and another vs. U.P.Public Service Commission, Allahabad and another, reported in (2007) 3 SCC 720, Sadashiv Prasad Singh vs. Harendar Singh and others, reported in (2015) 5 SCC 574, 1. In order to further his contention that the decision of the Recovery Officer dated 22.9.2009 is an appealable order the counsel relied on the following decisions :( 1) D....
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....consideration within specified time. 5. From the statement of objects and reasons for enactment of the RDDB Act, one can notice that legislature realized that the banks and financial institutions were experiencing considerable difficulties in recovering loans and enforcement of security and the existing procedure for recovery of debts due to the banks and financial institutions required modifications. It was therefore, felt that speedy recovery had to be enabled. The Act was therefore enacted to establish Tribunals and Appellate Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions. With these objects in mind RDDB Act came to be enacted. Section 3 of the Act pertains to establishment of the Tribunal. Section 8 pertains to establishment of Appellate Tribunal. Section 17 of the RDDB Act pertains to jurisdiction, powers and authority of Tribunals. Section 18 of the RDDB Act provides that on and from the appointed day, no court or other authority shall have, or be entitled to exercise any jurisdiction, powers or authority, except the Supreme Court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution, in....
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....uiry 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)." 10. Section 31 which falls in Chapter VI containing miscellaneous provisions, provides that every suit or other proceeding pending before any court immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action where on it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal. 11. It can thus be seen that to provide mechanism for speedy recoveries of unpaid dues of banks and financial institutions the RDDB Act was enacted. By virtue of Section 17 pertaining to jurisdiction of the Tribunal, Section 18 pertaining to bar of jurisdiction of the Civil Court and Section 31 providing for transfer of pending cases before the Tribunal, the Tribunal is given exclusive jurisdiction over such matters and ordinary jurisdiction of the Civil Court would be ousted. 12. We have also noticed that in terms of Section 29 of the RDDB Act the provisions of 2nd ....
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....e was not served on the defaulter to pay the arrears as required by this Schedule or on the ground of a material irregularity in publishing or conducting the sale: Provided that (a) no sale shall be set aside on any such ground unless the Tax Recovery Officer is satisfied that the applicant has sustained substantial injury by reason of the nonservice or irregularity; and (b) an application made by a defaulter under this rule shall be disallowed unless the applicant deposits the amount recoverable from him in the execution of the certificate." 15. Rule 63 pertains to confirmation of sale. Subrule (1) thereof provides that, where no application is made for setting aside the sale under the earlier rules or where an application is made but disallowed by the Tax Recovery Officer and if the full amount of purchase money has been paid, he shall make an order confirming the sale upon which the sale shall become absolute. Subrule (2) of Section 63 provides that where such application is allowed and where in case of an application made to set aside the sale on deposit of the amount and penalty and charges such deposit is made within 30 days from the date of the sale, the Tax Recove....
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....28 on the other hand, is in the nature of garnishee powers and envisages recovery by the officer directly from the creditor of the defaulter. 17. Thus the scope of appeal under Section 30 of the RDDB Act against an order passed by the Recovery Officer is sufficiently wide and would take within its sweep, any order that the Recovery Officer may pass which would have a bearing on the rights of the appellant before the Tribunal. It is true that the law recognizes certain orders, which are not appealable. Nevertheless where an order that the Recovery Officer may pass has a substantial potential to adversely affect a party or injure his rights, it would certainly be one which would be appealable under Section 30 of the RDDB Act. 18. To contend that only remedy to a defaulter would be under Rule 61 of the 2nd Schedule to the Incometax Act is wholly erroneous. First and foremost immediately after providing in Section 29 of the RDDB Act that the provisions contained in 2nd Schedule to the Incometax Act, will apply to the recoveries made by the Recovery Officer under RDDB Act, in Subsection (1) of Section 30 it is provided that notwithstanding such provisions, an appeal would be available....
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....Act, these are relevant observations for our purpose. 20. The learned Single Judge in case of Panchmahal Steel Ltd., (Supra), however, was not directly concerned with the issue at hand. It was the case where against the order of the Recovery Officer the DRT and thereafter of DRAT who refused to grant complete stay to the petitioner against attachment of Nickel which was the stock of the petitioner used in the industry. The petitioner had approached the High Court. It was in this background the learned Single Judge noticed the provisions of Section 30 of the RDDB Act. 21. The Division Bench of High Court in case of Bank of Baroda (Supra), did not have the occasion to decide the present issue, as can be seen from recording in paragraph6 of the judgment that, it is not in dispute that orders passed by the Recovery Officer were appealable under Section 30 of the said Act. It was in this background of this unopposed position that the Court observed that, when statutory appeal is available, ordinarily the Court would not entertain a writ petition without insisting on the person aggrieved to avail such alternative remedy. 22. In case of Official Liquidator, Uttar Pradesh and Uttarakhan....
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.... Officer under subsection (2) of S. 13 of the Act. It is true that only against an order, an appeal lies under S. 13 of the Act, whether such appeal is filed by the claimant or by the State Government, as the case may be.Before dealing with the question whether the letter of the Forest Settlement Officer dated 18121984 is an order or not, it is necessary to know how the term "order" is understood in legal parlance. The term "order" occurring in S. 13 of the Act is comprehensive enough to include every decision, award or order, made under Ss. 10 and 11 of the Act. The term "order" is not a term of art. It has no fixed legal meaning. The term "order" has not been defined in the Andhra Pradesh Forest Act like the Code of Civil Procedure which gives it a special meaning in order to distinguish from a decree. Therefore, it becomes necessary how the term "order" is understood in ordinary legal parlance. The term "order" in legal parlance, would always indicate some expression of opinion which is to be carried out or enforced. In other words, an "order" is a conclusion of a Court or an Authority or a Tribunal upon any motion. The term "order," "decision" and "judgment" are commonly used i....
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.... observed that interlocutory or interim orders which are passed during the pendency of a case would fall under one or the other of the following categories: "(i) Orders which finally decide a question or issue in controversy in the main case; (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case; (iii) Orders which finally decide a collateral issue or question which is not the subjectmatter of the main case; (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment; (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties." 29. It can thus be recognized that there may be some kinds of orders, which do not undertake any adjudication process or decide even momentary rights and liabilities of the parties and such orders therefore may not be appealable. This was the view of the Full Bench of Allahbad High Court in case of Ashutosh Shrotriya (Supra). It was the case where on a reference the Larger Bench was deciding whether when a learned Single Judge mer....