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Judgment
S. Ravi Kumar, J
This Appeal is preferred against order dated 19th August, 2015 in Appeal No. 7/2013 on the file of Debts Recovery Tribunal No. 1, Mumbai (D.R.T.). This Appeal is posted to this date from yesterday on the request of Advocate for appellant to hear waiver application. When the waiver application is taken up for hearing, learned Counsel for appellant requested that as no debt is in existence today, there is no need to deposit amount, therefore, waiver application is not necessary and that same thing is stated in the application on that ground sought permission to withdraw the application. When he sought permission to withdraw waiver application, it is made clear that if permission is granted he shall proceed with hearing of main Appeal to which he readily agreed.
However, other side opposed for withdrawal of waiver application. It is made clear that the other side can point out and argue as to maintainability of an appeal without deposit and with this condition; permission is accorded to the appellant to withdraw waiver application (M.A. No. 764/2015) and the same is dismissed as withdrawn.
Thereafter the Appeal is taken up for hearing and when the learned Counsel for appellant was referring to the merits of the case, Advocate for respondent No. 1 raised objection to first satisfy about maintainability of the Appeal without making pre-deposit. Therefore, learned Counsel for appellant was requested to clarify this aspect.
Advocate for the appellant submitted that on the date of filing of the Appeal there was no debt due. Now it may be relevant to refer to the situation which led the appellant to approach this Tribunal. In the recovery proceeding an order was passed on 30th March, 2012 to the effect that application for closure of the recovery proceeding is filed and affidavit in support of the same is filed and prayers A and B were allowed. It is also recorded that applicant has received entire O.T.S. amount of Rs. 41 lacs and on that R.P. was closed. Thereafter appellants herein filed application with prayer to recall order dated 30th March, 2012 and direct applicant assignee to take necessary steps to comply with order dated 8th August, 2008 and direct the Recovery Inspector to take physical possession of the property from defendant No. 4 or any person claiming through him within seven days and to take action against applicant for misleading DRT by concealing the true and correct facts as well as non-service of application upon these defendants and by way of injunction against defendant No. 4 or any other person claiming through him from creating any third party rights, interest or part with possession of the Suit property i.e. factory, land and building situated on the Plot No. B-38 together with structure standing thereon in Badlapur Industrial Area within the village of Shrigaon and Kharavi, Taluka : Ulhasnagar, District: Thane, along with movable goods lying therein and to maintain status quo.
Learned Recovery Officer entertained this application though no specific provision is quoted in the said application under which such reliefs are claimed and such reliefs can be granted by Recovery Officer after closure of the R.P. Learned Recovery Officer through order dated 28th February, 2013 allowed application and recalled order dated 30th March, 2012 and discharged DRT Receiver and directed for delivery of possession of Suit property to Recovery Inspector of DRT. Aggrieved by that order respondents herein filed Appeal before learned Presiding Officer, DRT and the learned Presiding Officer by way of common order dated 19th August, 2015 allowed Appeal and set aside order dated 28th February, 2013 passed by Recovery Officer holding that Recovery Officer has no power to pass such order. Now being aggrieved by the same present Appeal is preferred.
Before hearing the Appeal, learned Advocate for appellant was requested to show the provision under which Recovery Officer has got power to recall his own order for which he sought time. But, I am not inclined to grant any time since when he was ready to argue the Appeal he should be in a position to meet all the legal aspects particularly when the appellant is supporting the order of the Recovery Officer dated 30th March, 2012 which is passed on the application of the appellant. Advocate for appellant further represented that as per Rules 86 and 87 of Second Schedule to Income-tax Act, the Recovery Officer has power to recall order for which learned Advocate for respondent submitted that as per decision of the Hon'ble Supreme Court in C.N. Paramasivan v. Sunrise Plaza through Partner, I (2013) BC 757 (SC) : II (2013) SLT 34 : (2013) 9 SCC 460, Rules 86 and 87 of Second Schedule to Income-tax Act do not have application to the provision of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 while Rules 57 and 58 of Second Schedule to Income-tax Act deal with the process of recovery of the amount due and, therefore, the argument of Advocate for appellant cannot be accepted. Advocate for appellants has drawn my attention to Para 21 of the judgment wherein it is held as follows:
"It is noteworthy that the Income-tax Rules make provisions that do not strictly deal with recovery of debts under the Act. Such of the Rules cannot possibly apply to recovery of debts under the RDDBFI Act. For instance Rules 86 and 87 under the Income-tax Act do not have any application to the provisions of the RDDBFI Act, while Rules 57 and 58 of the said Rules in the Second Schedule deal with the process of recovery of the amount due and present no difficulty in enforcing them for recoveries under the RDDBFI Act. Suffice it to say that the use of the words "as far as possible" in Section 29 of the RDDBFI Act simply indicates that the provisions of the Income-tax Rules are applicable except such of them as do not have any role to play In the matter of recovery of debts recoverable under the RDDBFI Act."
It is clear from the above observation of the Hon'ble Supreme Court that Rules 86 and 87 of Second Schedule to Income-tax Act have no application to the provisions of RDDBFI Act. There are rules to govern conduct of the proceeding before the DRT Rule 5-A of the Debts Recovery Tribunal (Procedure) Rules, 1993 confers review power only on the Tribunal but not on the Recovery Officer. When there is no such review power, the question of entertaining any application for recall of the order would not arise. Even if a wrong order is passed, remedy of the aggrieved party is to approach Appellate Forum or the Revisional Authority, but not the Recovery Officer, particularly when the proceedings are closed after recording full satisfaction. After recording full satisfaction, the Recovery Officer has become functus officio and no further proceedings or applications can be entertained by the Recovery Officer, effecting full satisfaction. But Recovery Officer committed an error in entertaining the application for recall of the order and allowing it, which was rightly set aside by the learned Presiding Officer.
As seen from the impugned order, learned Presiding Officer has considered all the aspects and passed a detailed order with sound reasoning. There are absolutely no grounds to interfere with such well reasoned order. As seen from the material, it appears that dispute between appellant and other partners is internal between them for which the remedy of the appellant is elsewhere but not before the Recovery Officer and ignoring this aspect Recovery Officer entertained application and granted reliefs without any power, which order was rightly set aside by the learned Presiding Officer of the Tribunal below. Therefore, I do not find any grounds to interfere with such well reasoned order. For these reasons, I am of the view that Appeal is devoid of merit and liable to be dismissed. Appeal is dismissed as devoid of merits with costs. All Miscellaneous Applications, if any, are dismissed as infructuous.