JUDGMENT
Jawahar Lal Gupta, J.
1. The petitioner, a sole proprietary concern is aggrieved by the order dated October 22, 1997 by which the Debts Recovery Tribunal, Jaipur has dismissed the application for setting aside the ex parte judgment dated March 18, 1997. The petitioner prays that the order be set aside. A few facts as relevant fur the decision of this writ petition may be briefly noticed.
2. On March 27, 1993, the Bank of India filed a suit for the recovery of Rs. 32,24,414.56 against the petitioner and Mr. Hargopal Singh, its sole proprietor. While the suit was pending in the Court of Additional Senior Subordinate Judge, Kharar, the “Recovery of Debts due to Banks and Financial Institutions Ordinance” was promulgated on June 24, 1993. Ultimately, the Act was promulgated. In pursuance of the provisions of the Act, the trial Court transferred the suit to the Tribunal vide order dated October 15, 1994. The parties through their counsel were directed to appear before the Tribunal on December 23, 1994. It appears that the petitioner filed C.W.P. No. 18499 of 1994 with a prayer that the orders regarding the establishment of the Tribunal and the appointment of the Presiding Officer, be quashed and that the proceedings be stayed. Vide order dated December 20, 1994, the Bench directed that notice of motion be issued to the respondents for February 13, 1995. Meanwhile “the transfer of the suit pending in the court of Additional Senior Sub Judge, Kharar, was stayed. The petitioner avers that vide order dated June 16, 1996, the writ petition was dismissed by a Division Bench. However, a perusal of the original record indicates that it was dismissed on September 16, 1996.
3. Since, the trial Court had transferred the suit to the Tribunal on October 15, 1994 and the petitioner’s prayer for the stay of further proceedings had not been accepted by the Bench, it appeared before the Tribunal on December 23, 1994, through its counsel Mr. S.L. Sharma. An application was filed. The case was adjourned to March 6, 1995. The petitioner avers that “as the case proceedings of the suit were stayed by this Hon’blc Court vide its order dated 20.12.1994”, it was “prevented by sufficient cause for not appearing before respondent No. 2 on any of the dates after 23.12.1994”. It was only after the dismissal of the writ petition on September 16, 1996, that the petitioner engaged a counsel “to take care of the proceedings before respondent No. 2 after 16.9.1996”. It is alleged that the counsel did not file his Vakalatnama in time and, consequently, the Tribunal “was pleased to pass an ex parte decree-holder dated 18.3.1997”. On perusal of the records, it came to the notice of the petitioner that it “was proceeded against ex parte as (far) back as on 6.3.1995 despite the stay order granted by this Hon’ble Court.” The ex parte judgment delivered by the Tribunal was also sent to [he petitioner which was received by it on April 5, 1997. It is alleged that the petitioner contacted its counsel “to file an application for setting aside the ex parte order-decree dated 18.3.1997” and according to the counsel, this application was filed on April 22, 1997. The counsel had also got an affidavit dated May 15, 1997 from the petitioner. He, however, did not “cure the defects in the application dated 22.4.1997…..” The counsel “neither prosecuted the application nor shared any information about the application with the petitioner who was completely in dark about any application”. On July 30, 1997, the petitioner engaged Mr. Sanjay Sharma, Advocate, who filed an application “for setting aside ex parte decree-order Under Section 22 of the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 and another application Under Section 5 of the Limitation Act (sic.) as early as on 6.8.1997 within limitation of 30 days from the actual knowledge on 30.7.1997.” This application was “diligently prosecuted by the petitioner……….”. Respondent No. 1 appeared on September 11, 1997, and filed a reply to the application. The argument were heard and vide order dated October 22, 1997, the application for condonation of delay and for setting aside the ex parte judgment was dismissed. The petitioner alleges that “a full-fledged conspiracy was hatched by respondents in connivance of Mr. Kosar (the petitioner’s Advocate) to play havoc……..”. The petitioner claims that the Tribunal has erred in not condoning the delay and in dismissing its application for setting aside the ex parte order-decree. It prays that the order be quashed.
4. A written statement has been filed on behalf of the Bank. It has been averred by way of a preliminary objection that the petitioner has an effective alternative remedy Under Section 20 of the Act. It has been further pointed out that the petitioner had put in appearance before the Tribunal on December 23, 1994 when the case was adjourned to March 6, 1995. The case was thereafter adjourned to May 30 and August 2, 1995. Ultimately, the judgment was passed against the petitioner. No stay order having been passed by the High Court, the Tribunal was entitled to proceed with the case. A copy of the orders passed by the court of Additional Senior Sub Judge, Kharar on October 15, 1994 and by the Tribunal thereafter has been produced as Annexure R. 1 with the written statement. Even the other averments made by the petitioner have been controverted. It has been prayed that the writ petition be dismissed with costs.
5. Learned counsel for the parties have been heard. Mr. Ashu Punchhi appearing for the petitioner contended that the application for setting aside the ex parte order had been filed within time. The Tribunal has arbitrarily rejected it. He complained that the petitioner had been condemned unheard. The counsel maintained that the remedy of appeal was not efficacious as the appellant has to deposit a substantial amount before the appellate authority entertains the appeal. On the other hand, it was pointed out by Mr. Lalit Suri, learned counsel for the respondents that the application had been rightly rejected and that in any case, the petitioner had an effective remedy by way of an appeal.
6. The questions that arise for consideration are :-
(i) Does the petitioner have an effective alternative remedy against the impugned order?
(ii) Did the Tribunal act arbitrarily in passing the order dated October 22, 1997?
Reg:(i)
7. Section 20 provides for the remedy of appeal. The relevant provisions are contained in Clauses (1) and (2). These read as under:-
“20. (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.”
8. The above provision is very widely worded. It permits an appeal against any order that may be passed by the Tribunal. The only exception is in case of an order passed with the consent of the parties. Mr. Punchhi submitted that the remedy of appeal shall not be available against an order refusing to set aside an ex parte judgment.
9. The contention is misconceived. The provisions does not limit the remedy of appeal to any particular kind of orders. An ex parte judgment or an order refusing to set it aside falls within the ambit of the provision.
10. Mr. Punchhi submitted that under the provision of Section 21, a person has to deposit 75% of the amount of debt as determined by the Tribunal before the appeal can be entertained. Since a substantial amount is required to be deposited, the remedy is illusory.
11. We are unable to accept this submission. Firstly, it deserves notice that the Act was promulgated with the primary object of providing for “expeditious adjudication and recovery of debts due to Banks and Financial Institutions…” It is calculated to counter-act the dilatory tactics adopted by the recalcitrant litigants. The provision in Section 21 requiring the party to make a deposit is in conformity with the basic object of the Act. Such provisions are found in various Statutes which deal with the recovery of public dues. Similar provisions have been made under the Income Tax and the various enactments relating to the recovery of sales tax. Secondly, the provision empowers the appellate Tribunal to “waive or reduce the amount to be deposited” if good cause is shown. Consequently, it is open to a party to make a prayer for the waiver or the reduction of the amount to be deposited.
12. It also deserves mention that the Tribunal hearing the appeal would be in a better position to appraise evidence and determine facts. The writ court, in the very nature of things, can proceed only on admitted facts.
13. In the present case, the petitioner’s tirade is directed against its own counsel. The facts as alleged in the petition cannot be gone into in a petition under Article 226 of the Constitution. In fact, a copy of the application alleged to have been filed by the counsel has not been produced. The petitioner has alleged that “a full fledged conspiracy was hatched by respondents in connivance of Mr. Kosar to play havoc…” without producing even an iota of evidence to support it. These matters cannot be decided in a writ petition.
14. In view of the above, it is clear that the remedy of appeal is available against the order impugned in this petition.
15. In view of our answer to the first question, we would have been inclined to relegate the petitioner to its remedy of appeal. However, learned counsel for the petitioner had contended that the court should consider the validity of the order passed by the Tribunal. We, therefore, proceed to consider even the second question.
Reg: (ii)
16. The sequence of events as noticed above shows that vide order dated October 15, 1994 (wrongly mentioned as October 14, 1994 in para 3 of the writ petition), the Additional Senior Subordinate Judge, Kharar had transferred the suit to the Tribunal at Jaipur. The file was ordered to be sent through a special messenger and parties were directed to appear before the Tribunal on December 23, 1994. This order was passed in the presence of the counsel for the petitioner. It had undoubtedly filed a writ petition in this court. A prayer for stay of proceedings had been made. The writ petition had come up for hearing on December 20, 1994. However, the prayer for stay of proceedings was not granted. Only an order for stay of transfer was passed. Since the proceedings were not stayed, the Tribunal was entitled to proceed with the case. The petitioner alleges in para 4 of the writ petition that its counsel had appeared before the Tribunal on December 23, 1994 and placed on record a copy of the stay order granted by the High Court. It further alleges that as the “proceedings of the suit were stayed by this Hon’ble Court vide its order dated 20.12.1994, the petitioner was prevented by sufficient cause for not appearing before respondent No. 2 (the Tribunal) on any of the dates after 23.12.1994”. Both the statements are false. A copy of the orders passed by the Tribunal on different dates has been produced as Annexure R. 1 with the written statement. It appears that the first report on the file was made by the Registrar of the Tribunal on January 2, 1995. The case was adjourned to March 6, 1995. Thereafter, the case was periodically adjourned. There is nothing to indicate that the petitioner had put in appearance or produced a copy of the order. Furthermore, this Court had not stayed the proceedings in the suit. The order may have been communicated by the registry to the Tribunal. However, the petitioner chose to stay away. It had no cause to do so. Its averment that the counsel had appeared on December 23, 1994 before the Tribunal is not borne out from the proceedings before the Tribunal. Still further, it had no cause much less than a sufficient cause for failure to appear after December 23, 1994.
17. Admittedly, the writ petition filed by the petitioner was dismissed on September 16, 1996. The petitioner claims that it had engaged Mr. Sajjal Kosar to take care of the proceedings after that date. When was the counsel engaged? There is no indication in the petition. What steps did the petitioner take? Did it write any letter to the counsel? There is no answer on the file. It appears that dilatory tactics have been adopted. Totally vague averments have been made by the petitioner to create a plausible plea. The explanation sought to be given docs not appeal to reason. It is not surprising that even the Tribunal has rejected it.
18. The petitioner avers that an application had been filed on April 22, 1997 for setting aside the order dated March 18, 1997. The petitioner had given an affidavit which was attested on May 15, 1997. No copy of the application or affidavit has been produced in spite of the fact that the original affidavit is stated to have been “found in the brief of Mr. Kosar” (para 15 of the writ petition). Thereafter, another counsel Mr. Sanjay Sharma was engaged. He filed an application for setting aside the ex parte order. Another application for condonation of delay was also filed. Copies of these applications have not been produced. If these applications had been produced, it would have been possible to check the veracity of the statement made by the petitioner. These have been withheld. The fact that an application had been filed on April 22, 1997, was not even disclosed. Ultimately, after hearing arguments, the Tribunal rejected the application for condonation of delay as also for setting aside the order dated March 18, 1997.
19. Lest the petitioner’s interest should be prejudiced, we do not wish to say anything more except that the plea as raised in the writ petition is highly unsatisfactory and unconvincing. We may add that not a word was uttered to suggest that the petitioner did not owe the amount as claimed by the Bank. This fact speaks louder than everything else. Consequently, even the answer to the second question has to be against the petitioner.
20. In view of the above, there is no merit in this writ petition. It is, consequently, dismissed. However, it is clarified that nothing said by us would be taken into consideration by the appellate authority in case the petitioner chooses to file an appeal. In the circumstances, we make no order as to costs.