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Judgment
Ranjit Singh, J
The Recovery Officer has allowed the prayer of the respondent Tourism Finance Corporation of India for putting the property situated at Mahabaleshwar Village, Rengiwadi, Post Varoshi Tal Jawali, District Satara (Maharashtra) on auction in accordance with law. The CDs had opposed the prayer on the ground that the Designated Court of Special Judge, Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 (for short, MPID Act) had passed order dated 27th March, 2001 restraining the parties from creating third party interest. While rejecting this limb of submission, the Recovery Officer has held that the RDDBFI Act has special enactment to recover public money and since execution proceedings were under progress, these would override provision over the other Acts except for exception carved out under the RDDBFI Act. The view of the Recovery Officer was that the provisions of RDDBFI Act would prevail over the MPID Act.
Aggrieved against this order, the appellants herein filed appeal before the Tribunal below which is rejected on 14th August, 2014. The present appeal is directed against this order passed by the Tribunal below in exercise of powers under Section 30 of the RDDBFI Act.
The prayer before the Tribunal was that the CDs have created one obstacle after another in the execution and, thus, they have no right to challenge the order passed by the Recovery Officer in view of certain admissions that they had made before the Recovery Officer. In this regard, reference is made to one affidavit filed by Mr. Surender M. Kandhar as Director of the appellant concern before the Recovery Officer wherein it was conceded that the original title deed of the property i.e. Misty Woods situated at Mahabaleshwar, village Rengliwadi, Post Varoshi Tal Jawali, District Satara (Maharashtra) was lying with respondent. TFCI in the accounts of M/s. Suman Motels Ltd. The Recovery Certificate titled TFCI v. M/s. Suman Motels was pending with the Recovery Officer to DRT-II, Delhi. The Tribunal below accordingly has rejected the submissions advance by the appellants that this property was attached under MPID Act and that in view of the non-obstante clause available in Section 14 of the Act, the Recovery Officer could not proceed against the property. The Tribunal below has held that the certificate holder is the secured creditor and his security interest over the property shall definitely prevail over the attachment, if any. Accordingly, the order passed by the Recovery Officer was upheld and the appeal was dismissed. The present appeal is accordingly filed before this Tribunal.
The sole submission advanced before me by the Counsel for the appellants is that the provisions of MPID Act would prevail over the provisions of the RDDBFI Act and hence attachment order passed in respect of the property under the MPID Act would have precedence over the recovery proceedings initiated under the RDDBFI Act. In support of her submission, the Counsel for the appellants has relied upon the judgment in the case of Bank of India v. Ketan Parekh and Ors., III (2008) BC 247 : V (2008) SLT 76 : AIR 2008 SC 2361.
No doubt in this case, the Hon'ble Supreme Court has considered the provisions of RDDBFI Act and the Special Courts (Trial of Offences Relating to Transactions in Securities) Act, 1992. It is observed that both the Acts start with non-obstante clause. Reference is made to the provisions of Section 34 of the RDDBFI Act and that of Section 9A of the 1992 Act. Noticing that Section 9A of 1992 Act came on the statute on 25th January, 1994 which was subsequent to the RDDBFI Act, the Court has held that a subsequent legislation will have overriding effect over the RDDBFI Act.
In my view, this issue of precedent ought to have been raised when the OA was being adjudicated. The appellants have raised this issue at the time of recovery. Once the OA is allowed, recovery proceedings are in progress. The Recovery Officer cannot go behind the decree passed in the OA to hold that it would not have any power to not to resort to the recovery proceedings pursuant to the direction in the OA. In order to succeed, the appellants were either to take up this plea when the OA was under consideration or had to challenge the order passed in the OA on this or any other ground.
So far the appellants have not raised any challenge against the order passed in the OA. Once the appellants have allowed the order passed in the OA to acquire finality, they cannot rake up this issue to challenge the order passed in the OA in this circuitous manner by raising this plea before the Recovery Officer. This issue in the absence of failure to challenge the order passed in the OA could not have been gone into either by the Recovery Officer or the Tribunal below while exercising the appellate jurisdiction under Section 30 of the RDDBFI Act. For this reason alone, no interference in the present appeal is called for. I am of the view that no case is made out for going into the issue of jurisdiction raised by the appellants. The appeal is therefore dismissed on this short ground.