TaxTMI 
TaxTMI 
2001 (11) TMI 21
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....oan, the petitioners created an equitable mortgage of three houses situated in Mathura city in favour of the respondent-bank. Subsequently, the petitioners were sanctioned additional packing credit limit of Rs. 19 lakhs and additional foreign bill purchase limit of Rs. 25 lakhs. It appears that the petitioners did not repay the amount to the bank (respondent No. 4) and consequently it filed Original Application No. 3 of 1999, against the petitioners for recovery of the amount before the Debt Recovery Tribunal, Jabalpur. They did not file their written statement and, consequently, the Tribunal proceeded ex parte against them. Ultimately, by its order dated October 15, 1999, it decreed the claim of the bank for a sum of Rs. 93,88,386 together with interest at the rate of 20 percent per annum with quarterly rests with effect from January 6, 1999, till the realisation of the outstanding dues. The order further provided that the bank may press into service its independent right for the sale of the hypothecated property without waiting for any order from the Tribunal and the defendants were debarred from transferring, alienating or otherwise dealing with or disposing of the hypothecated/....
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....eal cannot be entertained by the Appellate Tribunal and this must be the reason for not registering the appeal. Thus there is no impediment in the way of the bank to execute the decree and recover the amount. The bank has applied for initiating action for sale of the mortgaged properties and in that connection various orders have been passed by the Recovery Officer which have been impugned in the writ petition. Sub-section (1) of section 30 of the Act provides that notwithstanding anything contained in section 29, any person aggrieved by an order of the Recovery Officer made under the 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. Therefore, the petitioners have a right to prefer an appeal against the impugned orders before the Tribunal and in view of availability of this alternative remedy of appeal, the present writ petition under article 226 of the Constitution is not maintainable and the same is liable to be dismissed on this ground alone. Sri Ravi Kant, learned senior counsel, has submitted that the petitioners have also sought a declaration that rules 48 to 51 of the Income-tax Rules', which lay d....
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....he purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the Tax Recovery Officer, otherwise be given." Sri Ravi Kant has submitted that the aforesaid rules do not envisage affording of an opportunity of hearing to the defaulter or judgment-debtor whereas rules 54 and 66 of Order 21 of the Civil Procedure Code, specifically provide for giving notice to the judgment-debtor before settling or drawing up proclamation of sale and on account of the said reasons the rules are likely to cause a serious injury to the judgment-debtor (defendant) and consequently they are ultra vires. He has submitted that the provisions of Order 21, rule 66(2) of the Civil Procedure Code, have been held to be mandatory in Desh Bandhu Gupta v. N. L. Anand and Rajinder Singh (1994] SCC 131 and also that a sale without notice is nullity. Learned counsel has further submitted that the object of the sale is to fetch the best price for the property so that the decree may be satisfied but sub-rule (2) of rule 541 gives a discretion to the Recovery Officer to publish the proclamation of sale in the Offi....
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.... trial of suits and execution of decrees provided under the Code of Civil Procedure has been given a go-by. Sub-section (4) of section 19 of the Act provides that on receipt of the application from a bank or financial institution for the recovery of the amount, the Tribunal shall issue summons requiring the defendant to show cause within thirty days of the service of summons as to why the relief prayed for should not be granted. Sub-section (24) of the same section lays down that the application made to the Tribunal under sub-section (1) or sub-section (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application finally within one hundred and eight days from the date of receipt of the application. Sub-section (3) of section 20 lays down that 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. The period prescribed here is less than the period of limitation prescribed for filing an appeal in the High Court. Sub-section (6) of section 20 enjoins that the appeal filed before the ....