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Judgment
P.K. Tripathy, J.—The above two civil revisions have been heard separately on the question of maintainability, and because a common question of law is involved relating to maintainability of both the civil revisions, therefore this common judgment shall abide the result of that issue involved in both the revisions.
In Civil Revision No. 231 of 2002, defendants No. 1, 5 and 6 in M.A. No. 19 of 2002 (arising out of T.C. No 185 of 2001) have challenged to the order passed on March 7, 2002) by the Debts Recovery Tribunal, Cuttack. Plaintiff (described as the applicant) and the defendants No. 2 to 4 are the opposite party members in this revision. It appears from the impugned order that an application for filing additional written statement by the defendants 2 and 3 was allowed by the Tribunal subject to payment of cost. Petitioners challenge to correctness and legality of that order.
In Civil Revision No. 321 of 2002, order passed on December 12,2002 by the Debts Recovery Tribunal, Cuttack in O.A. No. 47 of 2001 is under challenge by one of the defendants. It appears from the impugned order that an offer made by the petitioner to deposit the principal amount as a condition precedent to allow his application, as stated in the revision petition, to set aside the ex parte decree, was rejected by the said Tribunal.
At the stage of admission, the opposite party, i.e., The United Bank of India (plaintiff in both the cases) raised a preliminary objection regarding maintainability of the civil revisions in view of the provision in Section 20 of the Recovery of Debts Due to Banks & Financial Institutions Act, 1993 (in short, ''the Act''). Learned counsel for the plaintiff/opposite party argued that in view of the provision in Section 20 of the Act an appellate forum having been provided to challenge to any order passed by the Tribunal, therefore, the revision u/s 115 of the Code of Civil Procedure, 1908 (in short, ''the Code'') is not maintainable. On the other hand the contentions of the counsel appearing for the petitioners in each of the revisions are that :
(i) In view of the provision in Sub-section (3) of Section 22 of the Act, the Debts Recovery Tribunal shall be deemed to be a Civil Court and therefore, it is a Court subordinate to the High Court ;
(ii) The High Court exercises jurisdiction of superintendence and revision u/s 115 of the Code;
(iii) According to the provision in sub-section (1) of Section 20 of the Act, an appeal is maintainable only against orders passed under Sections 17 and 19, and therefore the present orders being covered by either Section 25 or 22 of the Act, the provision in Section 20(1) of the Act is not applicable to the present case. In other words, the impugned orders are not appellable.
The aforesaid rival contention needs careful consideration. Petitioners have relied on the cases of Chatur Mohan and Others Vs. Ram Behari Dixit, ; T.V. Subba Rao Vs. T. Koteswara Rao, ; Narayan Das v. Kasinath Pani and Ors. AIR 1968 Ori 94; Jenson and Nicholson (India) Ltd. Vs. Industrial Investment Bank of India and Others, ; to contend that the authorities functioning under the Act are Courts sub-ordinate to the High Court. Of all the aforesaid decisions which are on different context under the different statute, the decision in the case of Jenson & Nicholson (supra) is of a dispute under the Act, 1993. The Calcutta High Court has expressed the view that the Tribunal under the Act is a Court sub-ordinate to the .High Court. The plaintiff/opposite party does not dispute to that contention as well. Therefore, this Court records the decision on the above noted issue No. (i) in favour of the contention advanced by the petitioners.
Though as per the aforesaid finding the Tribunals under the Act are Courts sub-ordinate to the High Court, but in view of the provision in Section 18 of the Act the power of superintendence has been conferred on the High Courts under the writ jurisdiction as per Articles 226 and 227 of the Constitution of India and not u/s 115 of the Code.
So far as the above noted third point is concerned, the argument of the petitioners is that the provision in Section 20 only applies to orders of the Tribunal passed in accordance with the provision under Sections 17 and 19 and does not, extend to any order passed either u/s 22 or 25. In that context it is appropriate to quote Section 20 of the Act, which reads as follows :
"20. Appeal to the Appellate Tribunal :
(1) Save as provided in Sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.
(2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.
(3) 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 and it shall be in such form and be accompanied by such fee as may be prescribed :
PROVIDED that the Appellate Tribunal may entertain an appeal after the expiry of the said period of fortyfive days if it is satisfied that there was sufficient cause for not filing it, within that period.
(4) On receipt of an appeal under Sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Tribunal.
(6). The appeal filed before the Appellate Tribunal under Sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal."
Statutory provision in Sub-section (1) is clear from the above quoted provision that "any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act" makes it implicitly and abundantly clear that all orders passed by the Tribunal in accordance with any of the provisions in the Act has been made appellable. Exception to that is an order passed on consent of the parties. In other words, according to Sub-section (2), no appeal shall lie from an order made by the Tribunal with the consent of the parties. In the case of Jenson and Nicholson (supra) the Calcutta High Court has expressed such a view. In the case of Banwarilal Muralilal and Another Vs. Indian Overseas Bank and Others, a Division Bench of this Court has declined to invoke the writ jurisdiction, because the order refusing to set aside an ex parte decree was regarded to be an appealable order u/s 20 of the Act. In the case of Union of India and Another Vs. Delhi High Court Bar Association and Others, the Apex Court while upholding the constitutional validity of the Act have also found the provision in Sections 25 and 28 of the Act relating to the mode of recovery of debts as not violative of Article 14 of the Constitution of India. In a recent decision of this Court by this Bench in the case of Giridharilal Agrawal v. Registrar, Debts Recovery Tribunal and 3 others, (Civil Revision Petition No. 264 of 2002, decided on 20.2.2003) it has been held that an appeal lies against an order passed by the Tribunal and therefore, the civil revision is not maintainable. Above all, in the case of Punjab National Bank v. O. C. Krishnan and Ors. 2002 (1) CJD 66, the Apex Court have also held that when an order is appealable u/s 20 of the Act, High Court should not exercise its writ jurisdiction under Article 227 of the Constitution of India.
The net result of the aforesaid discussion thus makes it clear that civil revisions u/s 115 of the Code are not maintainable. Accordingly, both the civil revisions are dismissed.