Ritesh Oil Mills Pvt. Ltd vs Dena Bank

Raj Mani Chauhan, J

The challenge under the present Appeal under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the RDDBFI Act) is the judgment and order dated 29th March, 2010 passed by Mr. V.N. Lothey Patil, the then learned Presiding Officer (learned P.O.), Debts Recovery Tribunal (DRT) No. 1, Ahmedabad, in Appeal No. 14/2009, Ritesh Oil Mills Pvt. Ltd. v. Dena Bank, whereby the learned P.O. has dismissed the aforesaid Appeal filed by the appellants against order dated 22nd September, 2009 passed by the Recovery Officer (R.O.) in Recovery Proceeding (R.P.) No. 1304/2002, arising out of the Original Application (O.A.) No. 319/1998 whereby the learned R.O. has passed the following order:

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.

Successful auction purchaser is hereby directed to deposit the balance amount of 25% on or before 23rd September, 2009 by Demand Draft/Pay Order in favour of the Recovery Officer, DRT-1, Ahmedabad.

The successful bidder is further directed to deposit the remaining 75% of the offered amount on or before 6th October, 2009 by Demand Draft/Pay Order in favour of the Recovery Officer, DRT 1, Ahmedabad. The sale shall be confirmed in due course in accordance with, the prescribed terms and conditions.

Further, the successful purchaser is directed to deposit the Poundage Fee (1% of the bid amount plus Rs. 10) as per Sub-rule (1) of the Income-tax (Certificate Proceedings) Rules, 1962, Appendix 28 in favour of the Registrar, Debts Recovery Tribunal, Ahmedabad.

CH Bank is hereby directed to file FIR regarding the theft of the movable property. Further CH Bank is also directed to depute security with immediate effect and to ensure that no further theft takes place till confirmation of sale.

The relevant facts giving rise to the present Appeal in nutshell may be stated as under.

The appellant No. 1, Ritesh Oil Mills Pvt., had availed certain credit facilities sanctioned by the respondent No. 1, Dena Bank. The appellant No. 2 and the defendant Nos. 3 to 5 stood guarantors to the amount of credit facility availed by the borrower. The amount of credit facilities was secured by creation of mortgage of the following immovable property : Block No. 278, Village Gadhoda, Near Vitrag Foam Sabar Dairy Road, Taluka Himmatnagar, Gujarat" as well as hypothecation of plant and machineries, (hereinafter referred as the Suit property)

It is indisputed that the appellant No. 1 committed default in repayment of the amount of the credit facilities availed by it. Consequentially the respondent No. 1 filed Original Application No. 319/1998 in DRT-1, Ahmedabad, against the borrower and the guarantors for recovery of its outstanding dues together with interest, costs and other charges.

Daring pending O.A. the defendants settled the outstanding dues with the applicant Bank at Rs. 32 lacs. Consequently the parties filed consent terms (Exh. A-32) in the pending O.A. Account which was disposed of by the learned P.O. in view of the consent terms. As per the consent terms, the defendants were required to make a down payment of Rs. 4 lacs and remaining amount of Rs. 28 lacs in four equal quarterly instalments of Rs. 7 lacs each together with interest @ 12.5 p.a. commencing from 1st April, 2002. Admittedly, the defendants could not pay entire settled amount within the time frame provided in credit facilities agreement. Consequently the learned P.O., DRT, on the application of the applicant/certificate holder Bank issued Recovery Certificate (R.C.) No. 1304/2002 dated 5th August, 2002 for recovery of Rs. 56,39,015.51 + cost and interest of Rs. 92,170/- i.e. for Rs. 57,31,185.51 with further interest & 19.60% p.a. On the basis of the aforesaid R.C. the R.O. initiated R.P. No. 1304/2002.

The R.O. on 21st July, 2003 issued demand notice to the certificate debtors calling upon them to pay the amount payable under the R.C. which was duly served on the certificate debtors. But they despite service of demand notice failed to make any payment. The CH Bank/the respondent No. 1 thereafter on 9th September, 2003 moved an application for attachment of the Suit properties. The Suit properties were accordingly attached by the Bank in pursuant to the attachment order passed by the R.O. The respondent No. 1 filed compliance report on 17th October, before the R.O.

The R.O. thereafter made three attempts to sell the Suit properties. But all the attempt were failed as no bidder came forward to purchase the properties. The first auction was scheduled on 30th July, 2004, the second auction was scheduled on 12th March, 2009 and the third auction was scheduled on 31st March, 2009.

The R.C. remained pending for a quite long time. Lastly, the R.O. on 2nd July, 2009 issued fresh notice for settling the terms of sale proclamation to sell the Suit properties. He directed CH Bank to serve the notice to the CDs by R.P.A.D. The R.O. thereafter vide order dated 10th August, 2009 settling the terms of the sale ordered to sell the Suit properties fixing 22nd September, 2009 at 2.30 p.m. for conducting the auction sale. He classified the immovable Suit property as lot No. 1 fixing reserve price of Rs. 21 lacs and hypothecated movable property lying on the aforesaid immovable property as lot No. 2 fixing reserve price of Rs. 60,000/-. The R.O. by the same order ordered for issuance of sale proclamation notice and appointed the branch manager of the respondent No. 1 as ex officio receiver and authorized him to issue proclamation of sale. He directed the receiver to affix the sale notice on conspicuous part of the Suit property at least 30 days before the public auction. He also ordered that the sale notice be published in two newspapers, one in English and one in vernacular language newspaper. The receiver accordingly on 2nd September, 2009 pasted sale notice on the Suit property.

The R.O. as per scheduled date of the auction i.e. on 22nd September, 2009 conducted the auction sale of the Suit property. The respondent No. 2, Gopalkrishna Dahyabhai Patel, the only bidder participated in the auction sale who offered to purchase the immovable Suit property for Rs. 210.01 lacs as against reserve price of Rs. 21 lacs. But on persuasion the auction purchaser raised his offer from Rs. 21.00 lacs to Rs. 21.05 lacs. The R.O. accepting his offer passed the order which has already been extracted above. The R.O. by the same order directed the auction purchaser to deposit 25% of the sale price on or before 23rd September, 2009 and to deposit the balance amount of 75% of the sale price alongwith poundage fee @ 1% through Demand Draft/Pay Order drawn in favour of the Recovery Officer, DRT-1, Ahmedabad on or before 6th October, 2009. The auction purchaser as directed by the R.O. deposited the entire sale price with him within the stipulated time.

The defendant Nos. 1 and 2/certificate debtors/appellants feeling aggrieved by order dated 22nd September, 2009 passed by the R.O. selling the Suit properties in favour of the respondent No. 2 preferred Appeal in DRT-1, Ahmedabad, under Section 30 of the RDDBFI Act. The appellants challenged the order dated 22nd September, 2009 passed by the R.O. declaring the respondent No. 1 as the successful auction purchaser mainly on the following grounds :

(i) The sale has been conducted by the R.O. in violation of mandatory provision under Rule 55 of the Second Schedule to the Income-tax Act. The R.O. vide order dated 10th August, 2009 ordered for issuance of the sale proclamation notice fixing 22nd September, 2009 as the date of auction sale. The sale notice was pasted on the Suit property on 2nd September, 2009. Rule 55 of the Second Schedule to the Income-tax Act provides that no sale of immovable property under this schedule shall, without the consent in writing of the defaulter, take place until after the expiration of at least thirty days calculated from the date on which a copy of sale has been affixed on the property or in the office of the Tax Recovery Officer, which is earlier. In this Case the R.O. had conducted the sale of the Suit property within 30 days from the date of affixation of the sale notice on the Suit properties to be sold, therefore, the sale conducted by the R.O. is illegal and liable to be set aside.

(ii) The mortgaged property was sold by the R.O. on the stale valuation i.e. the R.O. had got the Suit properties valued long back in the Year 2003 while he was required to obtain latest valuation of the Suit property as there had been major appreciation in value of Suit property. In this way, the R.O. has sold the mortgaged property on a very low price.

(iii) The R.O. has conducted the sale in violation of Rule 68 B(1) of the Second Schedule to the Income-tax Act with provides that no sale of immovable property shall be made under this Part after the expiry of three years from the end of the financial Year in which the order giving rise to a demand of any tax, interest, fine, penalty or any other sum, for the recovery of which the immovable property has been attached, has become conclusive under the provisions of Section 245-1 or, as the case may be final in terms of the provisions of Chapter XX.

The respondent did not file any written reply to the Appeal filed by the appellants, rather their Counsel opposed the Appeal by putting their oral submissions.

The learned P.O. after hearing the learned Counsel for the parties held that the appellants have sought for setting aside the impugned auction sale conducted by the R.O. Rules 60 and 61 of the Second Schedule to their Income-tax Act specifically provide for setting aside the sale but the appellants did not choose to file any application under the aforesaid rules before the R.O. for setting aside the impugned sale they rather filed Appeal under Section 30 of the RDDBFI Act before him. But in the present case the R.O. has not passed any adjudicatory order, which is under challenge rather he after conducting the auction sale has declared the respondent No. 2 as successful purchaser. The impugned order passed by the R.O. is not appealable order. The appellants have straightaway challenged the impugned auction sale conducted by the R.O. by filing Appeal under Section 30 of the RDDBFI Act instead of filing any application under Section 61 of the Second Schedule to the Income-tax Act before the R.O. The Appeal filed by the appellants is, therefore, not maintainable.

The learned P.O. further observed that as regards non-compliance of Rule 55 of the Second Schedule to the Income-tax Act by the R.O. is concerned, the appellants have sought for setting aside the impugned auction sale conducted by the R.O. on the ground of irregularity which is covered under Rule 61 of the Second Schedule to the Income-tax Act. Proviso (a) to the aforesaid Rule 61 provides, that 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 non-service or irregularity. In this case, the appellants have failed to establish that they have sustained substantial injury, therefore, the sale cannot be set aside for not following Rule 55 of the Second Schedule to the Income-tax Act. Moreover, the appellant could challenge the impugned sale before the R.O. but they did not challenge, therefore, the impugned sale cannot be set aside on this ground.

The learned P.O. further held that as regards violation of Rule 68 B of the Second Schedule to the Income-tax Act is concerned, Section 29 of the RDDBFI Act provides that Second and Third Schedule to the Income-tax will apply as far as possible with necessary modifications to the proceeding under the RDDBFI Act. The sale was concluded by the R.O. under the RDDBFI Act. Rule 68B is to be followed by the Tax Recovery Officer and not by the R.O. who conducts the sale under the RDDBFI Act.

The learned P.O. in view of the aforesaid observations, did not find any merit in the Appeal as well as the Appeal not maintainable, too. Consequently he vide the impugned judgment and order dated 29th February, 2010 has dismissed the Appeal filed by the appellants.

The appellants being aggrieved by the impugned judgment and order dated 29th February, 2010 passed by the learned P.O. have filed the present Appeal.

Heard the learned Counsel for the parties and perused the materials available on record. The learned Counsel for the parties, in additions to their oral submissions, have filed short written submissions, too, as well the case laws in support of their submissions.

It is undisputed between the parties that the Suit properties were put for auction sale by the R.O. on 22nd September, 2009. The respondent No. 2, Gopalkrishna Dahyabhai Patel, on the date of auction turned up as the sole bidder who offered to purchase the Suit properties for Rs. 21.01 lacs. However, on persuasion he increased his offer upto Rs. 21.05 lacs. The R.O. thereafter inter alia, passed an order accepting his bid and declared him as successful bidder. He directed him to deposit 25% and balance 75% of sale price alongwith poundage charge on the dates specified in order. The borrowers/certificate debtors being aggrieved by the aforesaid order dated 22nd September, 2009 passed by the R.O. filed appeal under Section 30 of the RDDBF Act before the DRT seeking to set aside the impugned sale conducted by the R.O. The appellants have challenged the impugned sale mainly on following three grounds :

(i) The sale was conducted by the R.O. within 30 days from the date of pasting of the sale notice on the Suit property which in violation of Rule 55 of the Second Schedule to the Income-tax Act;

(ii) The sale was conducted by the R.O. on stale valuation i.e. on the valuation of the Suit properties obtained by him in the year 2003 while he was required to obtain fresh valuation of the properties before they were put for sale. The R.O. sold the Suit properties for very low price.

(iii) The Suit properties were attached by the R.O. in the year 2003. As per provision under Rule 68 B of the Second Schedule to the Income-tax Act, the attachment of such property will operate upto three years beginning from the financial year of the attachment and thereafter such attachment shall cease to operate after expiration of three years from the financial year of the attachment. In this way, the attachment of the sold properties continued till financial year 2006-2007 thereafter the attachment automatically cease to operate. The property thereafter could not be sold by the R.O. on 22nd September, 2009 as the R.O. had to sell the property by way of the attachment of sale as provided under Section 25 of the RDDBFI Act. He could not sell the Suit properties without attachment of Suit property. The attachment had ceased to operate in the end of financial year 2006-2007.

From a perusal of the impugned judgment and order passed by the learned P.O. it appears that the learned P.O. has observed that the appellant have prayed for setting aside the impugned sale conducted by the R.O. They could challenge the impugned sale under Rule 61 of the Second Schedule to the Income-tax Act. The Appeal filed by the appellant under Section 30 of the RDDBFI Act for setting aside the impugned sale is, therefore, not maintainable. The P.O. also observed that the impugned order passed by the R.O. is not subject to Appeal. The Appeal filed by the appellants is, therefore, not maintainable.

The learned P.O. has further observed that the Appeal filed by the appellant has to satisfy the requirements of Rule 61 of the Second Schedule, to the Income-tax Act wherein proviso (a) to Rule 61 provides that 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 non-service or irregularity. In view of above provision, the appellants have to satisfy that they have suffered irreparable toss or substantial injury but they have failed to prove so, therefore, the Appeal had got no force.

In view of the above a preliminary point which arises for consideration in the present by this appellate Tribunal:

Whether the Appeal filed by the appellant under Section 30 of the RDDBFI' Act before the DRT is maintainable?

The learned Counsel for the appellants contended that the R.O. after conducting the auction sale of the Suit properties on 22nd September, 2009 passed an order accepting the offer of the respondent No. 2 to purchase the Suit properties for Rs. 21.05 lacs against reserve price of Rs. 21 lacs and directed him to deposit amount of 25% of the sales consideration on or before 23rd September, 2009 by demand draft/pay order in favour of the Recovery Officer, DRT-1, Ahmedabad, and to deposit remaining 75% of the sale consideration on or before 6th October, 2009 together with poundage Fee of @ 1% of the Bid amount plus Rs. 10, The R.O. also directed the CH Bank to lodge F.I.R. for committing theft of the movable properties lying on the immovable Suit property. The learned Counsel contended that the appellants had got following four remedies against the aforesaid order dated 22nd September, 2009 passed by the learned R.O. :

(i) The appellants could move an application under Rule 61 of the Second Schedule to the Income-tax Act before the R.O. praying for setting aside the impugned auction sale;

(ii) The appellants could file review application under Rule 87 of the Second Schedule to the Income-tax Act before the R.O. to review the order dated 22nd September, 2009 passed by him;

(iii) The appellants could challenge the impugned order dated 22nd September, 2009 passed by the R.O. by filing writ petition under Article 226 of the Constitution of India before the Hon'ble High Court;

(iv) The appellants could file Appeal against the impugned order dated 22nd September, passed by the R.O. under Section 30 of the RDDBFI Act.

The learned Counsel contended that the appellants had got plural remedies as above against the impugned order passed by the R.O. It was for the appellants to choose one of the remedies available to them. They chose the remedy available to them by way of filing Appeal before the DRT under Section 30 of the RDDBFI Act. The learned Counsel in support of his argument has placed reliance on case Bihar State Co-operative Marketing Union Ltd. v. Uma Shankar Sharon, AIR 1993 SC 1222 and Dhannalal v. Kalawatibai, (2002) 6 SCC 16 : IV (2002) SLT 250, both decided by the Hon'ble Apex Court.

The learned Counsel contended that Section 30 of the RDDBFI Act provides Appeal against the order passed by the R.O., it is provided therein that notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made under this 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. The appellants, therefore, being aggrieved by order of the R.O. made under this Act may within 45 days from the date on which copy is issued to them may prefer an Appeal before the Debts Recovery Tribunal. From a perusal of the impugned order dated 22nd September, 2009 it appears that the R.O. has passed impugned specific order which as per the provision under Section 30 of the RDDBFI Act is Appealable.

The learned Counsel contended that the respondents had raised a preliminary objection before the learned P.O. that although the R.O. has passed an order on 22nd September, 2002 but in the strict scene it was not any adjudicating order deciding the rights and liabilities of the parties, rather he had vide impugned order declared the respondent No. 2 as the successful purchaser and directed him to deposit the sale consideration within the time provided therein. But such contention of the respondents is not tenable. From a perusal of the copy of the proceeding of the auction sale conducted by the R.O. on 22nd September, 2009 it appears that the R.O. after concluding the sale has passed a specific order which is well covered within the meaning of order as used under Section 30 of the RDDBFI Act. The impugned order passed by the R.O. is an appealable order. The learned Counsel for the appellants in support of his argument has placed reliance upon the copy of the judgment dated 25th April, 2008 passed by the Division Bench of the Hon'ble High Court of Gujarat in Special Civil Application No. 28784 of 2007, Panchmahal Steel Limited v. Bank of Baroda.

Per contra the learned Counsel for the respondents supporting the finding recorded by the learned P.O. argued that although the copy of the auction sale proceeding dated 22nd September, 2009 conducted by the R.O. in R.P. No. 1304/2002 shows that the R.O. after conducting the auction sale passed an order accepting the bid of the respondent No. 2 to sell the Suit properties and he directed him to deposit sale consideration within specified time provided therein. But such an order passed by the R.O. cannot be termed as 'order' in the strict; sense which can be said to be subject to that. The learned Counsel contended that any order passed by the R.O. or the P.O. cannot be termed as "order" unless it decides the rights and liabilities of the parties on a particular point. Unless the order involved adjudication of the rights and liabilities of the parties such order cannot be termed as order which can be said to be appealable under Section 30 of the RDDBFI Act. The learned Counsel contended that Section 30 of the RDDBFI Act provides Appeal before the DRT against the order passed by the R.O. but the word 'order' as used under Section 30 of the RDDBFI Act will not include any kind of order, rather such order should be adjudicatory order. Unless the order involves adjudication of the rights and liabilities of the parties the same cannot be challenged by any person to proceeding by filing Appeal under Section 30 of the RDDBFI Act. The impugned order passed by the R.O. is, therefore, not appealable order under Section 30 of the RDDBFI Act. The learned P.O. has rightly held that the Appeal filed by the appellants under Section 30 of the RDDBFI Act a not maintainable. The learned Counsel further contended that in the instant case the appellants have got no plural remedies as contended by the learned Counsel for the appellants, rather they got only one remedy i.e. they could more an application under Rule 61 of the Second Schedule to the Income-tax Act, before the learned P.O. for setting aside the impugned auction such conducted by the R.O. Since the appellants have got specific remedy provided under the aforesaid rule, therefore, the Appeal filed by them under Section 30 of the RDDBFI Act is not maintainable.

I have given active consideration to the rival submission advanced by the learned Counsel for the parties.

At this stage it will be relevant to go through the provision under Section 30 of the RDDBFI Act which provides for Appeal against the order of the R.O. Section 30 of the RDDBFI Act reads as under :

Appeal against the order of Recovery Officer.--(1) Notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made under this 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.

(2) On receipt of an Appeal under Sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such enquiry 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).

From a perusal of above provision it appear that any person aggrieved by the order passed by the R.O. may, within 30 days from the date on which the copy of the order is issued to him, prefer Appeal to the Tribunal. The word 'order' has not been explained under the aforesaid provision as to what kind of order passed by the R.O. can be challenged in Appeal. It is noteworthy that there may be two kinds of orders which could be passed by the R.O. The first kind of order may be non-adjudicatory order and the second kind of order is adjudicatory order. The first kind of order does not decide the rights and liabilities of the parties or any person on a particulars point. For example, the R.O. while conducting the R.P. may adjourn the R.P. to any other date, issue show cause notice and other like orders. Such kind of orders do not decide the rights and liabilities of the parties, therefore, such orders cannot be treated as 'order' in the strict scene for the purpose of challenging the same under Section 30 of the RDDBFI Act by filing Appeal before the D.R.T. It is the only second kind order i.e. adjudicatory order passed by the R.O. which decides rights and liabilities of the parties to the proceeding or any other party on a particular point, are subject to the Appeal under the aforesaid provision. If any kind of the order which fall under the first category are made subject to Appeal then every order passed by the R.O. will be Appealable which is against the intention of the Legislature of providing the provision of Appeal against the order passed by the R.O. The learned Counsel heavily relied upon the judgment passed by the Division Bench of the Hon'ble High Court of Gujarat in Special Civil Application No. 28784 of 2007, Panchmahal Steel Limited V. Bank of Baroda.

But the case in hand is not covered by the aforesaid judgment. The facts of the aforesaid cited case were that during pending R.P. nickel in possession of the petitioner was sought to be attached by the certificate holder. The R.O. issued show cause notice to the petitioner as to why the nickel in its possession be not attached. The petitioner appeared before the R.O. The Petitioner was neither party to the O.A. nor any averment were made in the said application against the petitioner. In this way, the petitioner was third party. The petitioner in pursuant to the show cause notice appeared before the R.O. and filed his objection for recalling show cause notice issued to him under Section 25(a) of the RDDBFI Act. The petitioner also filed an application seeking direction to the respondent No. 1 to produce documents on the basis whereof the claim against him had been made. The learned R.O. vide order dated 22nd October, 2007 rejected the objection of the petitioner and issued an order for attaching and selling the nickel in possession of the petitioner.

The petitioner being aggrieved by the aforesaid order passed by the R.O. filed Appeal under Section 30 of the RDDBFI Act before the DRT The DRT dismissed the Appeal, inter alia, on the ground that before actual attachment of the nickel the Appeal filed by the petitioner was not maintainable.

Being aggrieved by the order passed by the learned P.O., DRT, the petitioner challenged the order passed by DRT before this appellate Tribunal by filing Appeal under Section 20 of the RDDBFI Act. In the aforesaid Appeal the appellant sought for interim relief, too. This appellate Tribunal was pleased to grant interim stay and disposed of Misc. Appeal with the observation that interim order of not taking possession shall be continued upto 5th November, 2007. In the meantime the petitioner will allow the respondent No. 1 to take inventory of the property i.e. attached nickel.

The appellant being aggrieved by the aforesaid order passed by the DRT as well as DRAT filed writ petition i.e. aforesaid Special Civil Application No. 28784 of 2007 before the Hon'ble High Court of Gujarat. The High Court partly allowed the petition observing that the Appeal filed by the petitioner before the DRT under Section 30 of the RDDBFI Act was maintainable before actual attachment of the nickel lying in its possession. The relevant fact in case before the High Court was that the petitioner had filed objection against the show cause notice issued by the R.O. which was rejected by the R.O. vide order dated 22nd October, 2007. The order passed by the R.O. was an adjudicating order on a particular point which decided the right of the petitioner. The petitioner was, therefore, aggrieved by the impugned order, therefore, it could file Appeal under Section 30 of the RDDBFI Act challenging the order passed by the R.O.

In the present case the R.O. has not passed any adjudicatory order. The R.O. by the impugned order dated 22nd September, 2009 had accepted the offer of the respondent No. 2 to purchase the Suit properties. The R.O. has directed the respondent No. 2 to deposit sale consideration on the dates provided therein. Although the R.O. on 22nd September, 2009 after conducting the sale passed an order accepting the offer of the respondent No. 2 to purchase the Suit properties and directed him to deposit the sale price on the dates mentioned therein. But such order passed by the R.O. cannot be treated as order in the strict scene, rather the same was simply procedure adopted by him in conducting the sale. The so called impugned order passed by the R.O. did not decide the rights of the appellants. Supposed if the appellants had filed any objection before the R.O. not to proceed with sale or to postpone the sale or any kind of application of similar nature on the ground available to them under the RDDBFI Act and their objection/application had been rejected by the R.O. by passing any order, such order could be said to be appealable order as the same amounted to adjudication of the rights of the appellant. But the R.O. vide order dated 22nd September, 2009 did not adjudicate the rights of the appellants on a particular point, rather he only conducted the sale, therefore, I am of the considered view-that the impugned order passed by the R.O. is not appealable order under Section 30 of the RDDBFI Act.

It will be relevant to mention here that in fact the grievance of the appellants is against the impugned sale conducted by the R.O. They were having remedy for setting aside the impugned sale conducted by the R.O. by filing objection/application under Rule 61 of Second Schedule to the Income-tax Act before him which specifically provides such remedy to the appellants but the appellants instead of availing that remedy straightaway filed present Appeal under Section 30 of the RDDBFI Act before the DRT seeking relief of setting aside the impugned sale. Since the appellants had got specific remedy under the Rule 61 of the Second Schedule to the Income-tax Act, therefore, the Appeal filed by them under Section 30 of the RDDBFI Act was not maintainable, the question is answered accordingly.

In view of the observations made above, I find that the learned P.O. has rightly held that the Appeal filed by the appellants under Section 30 of the RDDBFI Act against the impugned order dated 22nd September, 2009 passed by the R.O. is not maintainable. I do not find any illegality in the finding of the learned P.O. which does not call for any interference. Accordingly the present Appeal filed by the appellant is liable to be dismissed on the same ground.

Although the learned Counsel for the parties have extensively argued on the other points on which the impugned sale conducted by the R.O. has been sought to be quashed. But, those points need not to be dealt with as the Appeal is liable to be dismissed on the ground that Appeal filed by the appellant before the P.O. under Section 30 of the RDDBFI Act is not maintainable.

ORDER

As observed above the Appeal is dismissed with no order as to costs.

Chairperson

The learned Counsel for the appellants requests for extension of the interim order which is in operation till today upto four weeks as the appellants wants to approach to the Hon'ble High Court.

The learned Counsel for the respondent No. 1 opposed the request.

Since the appellants want to approach to the Hon'ble High Court for availing their remedy it appears proper to extend the interim order which was in operation till today for four weeks.

In view of the above, it is provided that interim order which was in operation till today will continue up to four weeks from today.