{"id":50880,"date":"2009-10-16T00:00:00","date_gmt":"2009-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/malabar-hill-vs-union-bank-of-india-on-16-october-2009"},"modified":"2016-10-15T07:05:17","modified_gmt":"2016-10-15T01:35:17","slug":"malabar-hill-vs-union-bank-of-india-on-16-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/malabar-hill-vs-union-bank-of-india-on-16-october-2009","title":{"rendered":"Malabar Hill vs Union Bank Of India on 16 October, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Malabar Hill vs Union Bank Of India on 16 October, 2009<\/div>\n
Bench: F.I. Rebello, D.G. Karnik<\/div>\n
                                  1\n\n      Mgn\n\n        IN THE  HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                              \n          ORDINARY ORIGINAL CIVIL  JURISDICTION\n\n\n\n\n                                      \n                  NOTICE OF MOTION NO.2332 OF  2007\n                                  IN \n                         SUIT NO.1627 OF 2007\n\n\n\n\n                                     \n                                 WITH\n                   NOTICE OF MOTION NO.2983 OF 2007\n                                   IN\n                         SUIT NO.1627 OF 2007\n\n\n\n\n                              \n                     \n     Hill Properties Ltd.                       )\n                    \n     an existing company within the             )\n\n     meaning of the Companies Act,1956 )\n      \n\n     and having its registered office  )\n   \n\n\n\n     at Hill Park Estate,A.G.Bell Road )\n\n     Malabar Hill, Mumbai-400 006.              )..Plaintiffs\n\n\n\n\n\n            Vs.\n\n     1.Union Bank of India                      )\n\n\n\n\n\n       a body corporate constituted             )\n\n       under the Banking Companies              )\n\n       Acquisition of Transfer of               )\n\n       Undertakings) Act, 1970 having           )\n\n       its head office and Bombay Main )\n\n       Office at Union Bank of India            )\n                                      ::: Downloaded on - 09\/06\/2013 15:14:09 :::\n                              2\n\n       Bhavan, Backbay Reclamation            )\n\n       Nariman Point, Bombay-400 021.         )\n\n\n\n\n                                                            \n     2.Mitsan Chemicals and Allied            )\n\n\n\n\n                                    \n       Products Pvt. Ltd., a Company  )\n\n       duly registered under the              )\n\n\n\n\n                                   \n       Companies Act, 1956 having its         ) \n\n       Registered office at NearBasant )\n\n\n\n\n                         \n       Pictures,Dr.Chhoitram Gadwaney         )\n                \n       Road, Chembur, Bombay-400 074.         )\n               \n     3.Mr. Mitesh Desai of Mumbai,            )\n\n       Indian Inhabitant residing at          )\n\n       NearBasant Pictures,Dr.Chhoitram)\n      \n   \n\n\n\n       Gadwaney Road, Chembur,                )\n\n       Bombay-400 074.                        )\n\n\n\n\n\n     4.Mrs. Aruna Desai, of Mumbai            )\n\n       Indian Inhabitant, residing at         )\n\n       Near Basant Pictures,Dr.               )\n\n\n\n\n\n       Chhoitram Gadwaney Road,Chembur )\n\n       Bombay-400 074.                        )\n\n     5.French Dyes & Chemicals (India) )\n\n       Limited., a company duly               )\n\n       registered under the Companies         )\n\n       Act, 1956 having its registered )\n\n                                    ::: Downloaded on - 09\/06\/2013 15:14:10 :::\n                               3\n\n       office at 109-D, Sion Matunga  )\n\n       Industrial Estate, Sion East,          )\n\n\n\n\n                                                            \n       Mumbai-400 022.                        )\n\n\n\n\n                                    \n     6.Shri Shankar Cyanamide Co-             )\n\n       Polymers Pvt. Ltd.,                    )\n\n\n\n\n                                   \n       a Company duly registered under )\n\n       the Companies Act, 1956 having  )\n\n\n\n\n                         \n       its registered office at Soman         )\n                \n       House, Dr. C.G. Road, Chembur,         )\n               \n       Vadavali, Mumbai-400 074.              )\n\n     7.Gill & Company Limited, a              )\n\n       Limited Company incorporated           )\n      \n   \n\n\n\n       Under the provisions of the            )\n\n       Companies Act, 1956 and having  )\n\n\n\n\n\n       its registered office at N.T.C. )\n\n       House, Narottam Morarjee Marg,  )\n\n       Ballard Estate, Mumbai-400 038. )\n\n\n\n\n\n     8.The Recovery Officer, DRT II,  )\n\n       Mumbai having his office at 5th  )\n\n       Floor,  Scindia House, N.M. Marg)\n\n       Ballard Estate, Mumbai-400 038. )\n\n     9.Asset Reconstruction Company           )\n\n       (India) Limited, a Company             )\n\n                                    ::: Downloaded on - 09\/06\/2013 15:14:10 :::\n                                  4\n\n       incorporated under the Companies)\n\n       Act, 1956 as trustee of                   )\n\n\n\n\n                                                               \n       Arcil -SBPS -0261 Trust having  )\n\n\n\n\n                                       \n       its registered office at                  )\n\n       Shreepati Arcade, August Krant  )\n\n\n\n\n                                      \n       Marg, Nana Chowk, Mumbai-400036 )..Defendants\n\n\n\n\n                             \n     Mr. M.S. Doctor and Nimay Dave i\/b. Bachubhai \n                  \n     Munim & Co., for the Plaintiffs\n\n     Mr. V.R. Dhond with Mr. Vinod Kothari i\/b. Apex \n                 \n     Law Partners, for Defendant No.9.\n     Mr. P.C. Mankad with Mr. Pravin D. Kadam, for \n     Defendant Nos. 3 and 5.\n\n     Mr. Avinash Joshi with Mr. Vipul Bilve and Mr. \n      \n\n\n     K. Tamhane i\/b. Mulla & Mulla for Defendant No.\n   \n\n\n\n     7.\n\n           CORAM : F.I. REBELLO &\n                   D.G. KARNIK,  JJ. \n\n\n\n\n\n           JUDGMENT RESERVED ON:4TH AUGUST. 2009\n\n          JUDGMENT PRONOUNCEDON:16TH OCTOBER,2009\n\n\n\n\n\n     JUDGMENT (PER FERDINO I. REBELLO, J.): \n<\/pre>\n
          A   learned   single   Judge   of   this   Court <\/p>\n
     noticing   an     apparent   conflict   with   the   views <\/p>\n
     taken in   Keshrimal J. Shah vs. Bank of India, <\/p>\n
     2004 (4) Bom. C.R. 842, the judgment in Dr. Anil
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\n                                    5<\/span><\/p>\n
     Nandkishor   Tibrewala   vs.   Jammu   &   Kashmir   Bank <\/p>\n
     Ltd., & Ors., in Writ Petition No.1684 of 2006 <\/p>\n
     decided on 11th July, 2006 on the one hand,  and <\/p>\n
     the view taken in Sarvadaman M. Joshi & Ors. vs. <\/p>\n
     The Recovery Officer & Ors., Writ Petition No.<\/p>\n
     5405  of 2005, accordingly directed the Registry <\/p>\n
     to   place   the   matter   before   the   learned   Chief <\/p>\n
     Justice under Rule 28 of the Rules of the High <\/p>\n
     Court of Judicature, Bombay, Original Side, for <\/p>\n
     consideration by  a Larger Bench.  The questions <\/p>\n
     referred are :-\n<\/p>\n
       1.Whether   in   view   of   the   provisions   of <\/p>\n
          Section   29   of       the         Recovery   of   Debts <\/p>\n
          Due         to     Banks             and   Financial <\/p>\n
          Institutions   Act,   1993   read   with   Rules <\/p>\n
          11(1)   and   11(6)   of       the,   Second   Schedule <\/p>\n
          of   the   Income   Tax   Act,   1961   a     person <\/p>\n
          against whom an order is passed is entitled <\/p>\n
          to       institute   a   suit   in   a   civil   Court, <\/p>\n
          or   whether   the   said   order   can           only <\/p>\n
          be           challenged   by                 way   of   an <\/p>\n
          Appeal under Section 30 of the Act ?\n<\/p>\n
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\n                                      6<\/span><\/p>\n
          2.Whether   the   provisions   of     Section   29   of <\/p>\n
            the    Recovery   of   Debts   Due   to   Banks   and <\/p>\n
            Financial Institutions Act, 1993    are only <\/p>\n
            restricted   to   those   cases   in   which   the <\/p>\n
            property   of   the   judgment   debtor   is   sought <\/p>\n
            to be recovered in terms of Rule (4) of the <\/p>\n
            second   schedule   of     the   Income   Tax   Act, <\/p>\n
            1961 ?\n<\/p>\n
          3.What         is         the   remedy   available   to   a <\/p>\n
            party,   who   is   not   a   party   in   proceedings <\/p>\n
            before       the     Debts Recovery   Tribunal, <\/p>\n
            but,   whose   property   has   been   declared   by <\/p>\n
            the     Tribunal   to   be   validly     mortgaged   in <\/p>\n
            favour  of a financial institution ?\n<\/p>\n
     2.     The main question which we are called upon <\/p>\n
     to answer is whether in fact there is a conflict <\/p>\n
     in the views taken in the judgments referred to.\n<\/p>\n
     3.     We   may   firstly   refer   to   the   judgment   in <\/p>\n
     Keshrimal   J.   Shah     (supra).                      Bank   of <\/p>\n
     Maharashtra     had   filed   a   suit   in   this   Court <\/p>\n
     which on coming into force of the provisions of
\n                                           ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                   7<\/span><\/p>\n
     the       Recovery   of   Debts   Due   to   Banks   and <\/p>\n
     Financial   Institutions   Act,   1993   (hereinafter <\/p>\n
     referred to as the RDB Act) was transferred to <\/p>\n
     the Tribunal constituted under the RDB Act.  The <\/p>\n
     Original Application was decreed ex-parte and in <\/p>\n
     consequence   thereof   a   recovery   certificate   was <\/p>\n
     issued   by   the   Tribunal.     The   bank   had   earlier <\/p>\n
     obtained a temporary injunction restraining the <\/p>\n
     original   defendant           from   alienating   or <\/p>\n
     transferring the immovable property.  Inspite of <\/p>\n
     the     injunction,   the   respondent   No.2   therein <\/p>\n
     transferred   the   rights   in   favour   of   the <\/p>\n
     petitioner   No.2   therein   which   document   was <\/p>\n
     registered   on   29th  August,   2000.       It   was   the <\/p>\n
     case of the petitioners that on coming  to know <\/p>\n
     on 8th October, 2000  that the property was  put <\/p>\n
     up  for auction  by Recovery Officer of D.R.T. –\n<\/p>\n
     II,   Mumbai,they   moved   an   Application   for <\/p>\n
     intervention     which   was   heard   by   the   Recovery <\/p>\n
     Officer and rejected.   An appeal was preferred <\/p>\n
     which was dismissed.   The petitioners preferred <\/p>\n
     Misc. Appeal before the Debt Recovery Appellate <\/p>\n
     Tribunal   (DRAT).     That   appeal   was   dismissed.\n<\/p>\n
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\n                                   8<\/span><\/p>\n
     Against   that   order   a   Writ   Petition   came   to   be <\/p>\n
     filed before this Court.  The learned Judge took <\/p>\n
     a   view   that   the   transfer   was   void   being   in <\/p>\n
     contravention   of   the   order   of   injunction   dated <\/p>\n
     6th March, 1998 and also that the petitioners had <\/p>\n
     failed to substantiate by proof, that they are <\/p>\n
     bonafide purchasers without notice.   This order <\/p>\n
     was   challenged   before   the   Appellate   Bench   of <\/p>\n
     this   Court.     This   Court   framed   two   questions <\/p>\n
     for consideration, which were:-\n<\/p>\n
          “(i) Is transfer of an immovable property in <\/p>\n
          contravention of a prohibitory   or                                  <\/p>\n
          injunction order of a Court illegal or void;<\/p>\n
          (ii)   Whether   and   to   what   extent,   the <\/p>\n
          procedure under Rule 11 of Second Schedule <\/p>\n
          to   Income   Tax   Act,   1961   is   applicable   in <\/p>\n
          execution   of   a   recovery   certificate   issued <\/p>\n
          under   Section   19(7)   of   the   Recovery   of <\/p>\n
          Debts   Due   to   Banks   and   Financial <\/p>\n
          Institutions   Act,   1993   (for   short   RDB <\/p>\n
          Act).”\n<\/p><\/blockquote>\n
     The   learned   Bench   answered   the   1st  question   in <\/p>\n
     the   affirmative   and   thereafter   went   on   to <\/p>\n
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\n                                  9<\/span><\/p>\n
     proceed   to   answer   the   second   question.     In <\/p>\n
     answering the second question this is what the <\/p>\n
     learned Bench observed:-\n<\/p>\n
         “The Parliament does not make it mandatory <\/p>\n
         nor compulsory for the Recovery Officer to <\/p>\n
         apply the Second and Third Schedule of  I.T.\n<\/p><\/blockquote>\n
         Act and 1962 Rules, advisedly because the  <\/p>\n
         Legislature   has   provided   safeguards   after  <\/p>\n
         investigation of claims and obligations by  <\/p>\n
         Recovery Officer.  This investigation can be <\/p>\n
         challenged in appeal under Section 30 of the <\/p>\n
         Act, which has been substituted with effect <\/p>\n
         from 17th  January, 2000.   Even proceedings  <\/p>\n
         in such appeal are not final because section <\/p>\n
         20   of   R.D.B.   Act   provides   for   a   further  <\/p>\n
         appeal by person aggrieved against any order <\/p>\n
         made   or   deemed   to   have   been   made   by   a  <\/p>\n
         Tribunal under R.D.B. Act.  Such an appeal <\/p>\n
         lies   to   the   Debt   Recovery   Appellate  <\/p>\n
         Tribunal.     To   compel   banks   or   financial  <\/p>\n
         institutions to either institute or defend  <\/p>\n
         proceedings after all this before a Civil  <\/p>\n
         Court   is   defeating   and   frustrating   the  <\/p>\n
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\n                                   10<\/span><\/p>\n
          Legislative   Intent   completely.\n<\/p><\/blockquote>\n
          Investigation   and   adjudication   cannot   be  <\/p>\n
          endless.  That apart, the remedy to approach <\/p>\n
          this Court in appropriate cases by invoking <\/p>\n
          its jurisdiction under Articles 226 and 227 <\/p>\n
          of   the   Constitution   of   India   is   always  <\/p>\n
          available.  Hence, question No.2 is answered <\/p>\n
          in these terms that it is not obligatory to <\/p>\n
          apply Second and Third Schedule of I.T. Act <\/p>\n
          and 1948 Rules while investigating a claim <\/p>\n
          or objection  to attachment and sale during <\/p>\n
          the   course   of   execution   of   recovery  <\/p>\n
          certificate under R.D.B. Act.”<\/p><\/blockquote>\n
             Thus,   the   Court   did   not   hold   that   the <\/p>\n
     jurisdiction of the Civil Court was barred  but <\/p>\n
     held     that   it   is   not   obligatory   to   apply   the <\/p>\n
     Second and Third Schedule of I.T. Act and 1948 <\/p>\n
     (1961)Rules,     while   investigating   a   claim   or <\/p>\n
     objection   to   attachment   and   sale   during   the <\/p>\n
     course of execution of the recovery certificate <\/p>\n
     under the R.D.B. Act.\n<\/p>\n
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\n                                   11<\/span><\/p>\n
     4.   We   next   examine   the   judgment   in   Dr.   Anil <\/p>\n
     Nandkishor   Tibrewala   (supra).     The   petitioner <\/p>\n
     therein   had   moved   the   D.R.T.   under   the <\/p>\n
     provisions of Section 19(25) of the R.D.B. Act.\n<\/p>\n
     The   Jammu   &   Kashmir   Bank   Ltd.,   had   taken   out <\/p>\n
     proceedings   before   D.R.T.,   against   the <\/p>\n
     respondent Nos. 2 to 10 in O.A. No.305 of 2002.\n<\/p>\n
     That   application   was   allowed   which   included   a <\/p>\n
     prayer that Flat No.902 was validly mortgaged in <\/p>\n
     favour of Jammu and Kashmir Bank Ltd.  A further <\/p>\n
     direction granted was that on failure to pay the <\/p>\n
     amount to the bank the bank was entitled to sell <\/p>\n
     the   flat.     The   Recovery   Officer   issued   a <\/p>\n
     certificate. The Jammu and Kashmir Bank moved an <\/p>\n
     application   for   enforcement   of   recovery <\/p>\n
     certificate by way of attachment of flat No.902.\n<\/p>\n
     That   application   as   allowed.     The   petitioners <\/p>\n
     had   applied   for   stay   of   attachment,   which   was <\/p>\n
     not   considered   and   consequently   the     petition.\n<\/p>\n
     An   Appeal   was   filed     by   the   petitioners <\/p>\n
     challenging the order dated 30th May, 2006 passed <\/p>\n
     by the Recovery Officer.  This Court framed the <\/p>\n
     following questions for consideration:-\n<\/p>\n
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\n                                   12<\/span><\/p>\n
          “What is the remedy available to a party,  <\/p>\n
          who is not a party in proceedings                          before <\/p>\n
          the   Debts   Recovery   Tribunal,   but,   whose  <\/p>\n
          property has been declared               by            the            <\/p>\n
          Tribunal to be validly mortgaged in favour <\/p>\n
          of a financial institution?\n<\/p><\/blockquote>\n
     After   considering   the   scheme   of   the   Act,   this <\/p>\n
     Court arrived at a finding that in a case like <\/p>\n
     that   before   it,   the   remedy   under   Section   20 <\/p>\n
     would   not   be   an   effective   remedy.     The   remedy <\/p>\n
     under Section 30 in a case where deduction was <\/p>\n
     raised   would   be   an   elusive   and   non-effective <\/p>\n
     remedy.  Section 29 in that case was held not to <\/p>\n
     be available to a party.   This Court   posed a <\/p>\n
     further question as to whether the Act provides <\/p>\n
     a   remedy   to   a   person   like   the   petitioner.     In <\/p>\n
     that context the Court observed that if a remedy <\/p>\n
     is not available under the Act a party may have <\/p>\n
     a   remedy   at   Civil   Court.     This   Court   then <\/p>\n
     considered Section 19(25) of the RDB Act which <\/p>\n
     reads as under:-\n<\/p>\n
          “19(25. The Tribunal may make such orders  <\/p>\n
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\n                                   13<\/span><\/p>\n
          and give such directions as may  be<\/p>\n
          necessary   or   expedient   to   give   effect   to  <\/p>\n
          its   orders   or   to   prevent   abuse   of   its    <\/p>\n
          process or to secure the ends of justice.”\n<\/p><\/blockquote>\n
     After   considering   this   provision   this   Court <\/p>\n
     observed that in those cases where the Recovery <\/p>\n
     Officer cannot go beyond the certificate a party <\/p>\n
     like   the   petitioner   who   claims   title   in     the <\/p>\n
     property   or   interest   in   the   property   can   move <\/p>\n
     the Tribunal by invoking its jurisdiction  under <\/p>\n
     Section   19(25),   and   in   such   cases   if   a   prima <\/p>\n
     facie case is disclosed before the Tribunal, the <\/p>\n
     Tribunal is bound to consider the application so <\/p>\n
     moved   and   dispose   it   according   to   law,   after <\/p>\n
     giving an opportunity to all parties before it.\n<\/p>\n
     This   Court   in   view   of   the   nature   of   the <\/p>\n
     proceedings   taken   out   did   not   consider   the <\/p>\n
     provisions of Section 29 of the RDB Act, as what <\/p>\n
     was   being   considered   was,   whether   there   was <\/p>\n
     power under Section 19(25)   of the R.D.B. Act.\n<\/p>\n
     This judgment has also not taken the view that <\/p>\n
     the jurisdiction of the Civil Court is barred.\n<\/p>\n
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\n                                  14<\/span><\/p>\n
     This Court specifically noted that it will not <\/p>\n
     be   open   to   the   Investigating   Officer   in <\/p>\n
     execution   to   go   beyond   the   Certificate.     In <\/p>\n
     other words in proceedings in execution it was <\/p>\n
     not open to the Executing Officer to go into the <\/p>\n
     merits of the order passed by the Tribunal. This <\/p>\n
     Court did not take a view that in   proceedings <\/p>\n
     in execution under second and third schedule of <\/p>\n
     the I.T. Act   and 1961 Rules against the order <\/p>\n
     of   the   Recovery   Officer   rejecting   an   objection <\/p>\n
     in execution a Civil Suit could not be filed by <\/p>\n
     the objector.\n<\/p>\n
     4.   The   third   Judgment   for   consideration   is   in <\/p>\n
     the   case   of   Sarvadman   M.   Doshi   (supra).     The <\/p>\n
     issue before this Court in the Writ Petition was <\/p>\n
     an   order   by   the   Recovery   Officer   confirming <\/p>\n
     sale of plant and machinery in execution of the <\/p>\n
     recovery certificate and orders passed by D.R.T.\n<\/p>\n
     , and by the Appellate Tribunal in Appeal.   In <\/p>\n
     that   case   the   Bank   of   India   had   instituted   a <\/p>\n
     suit for recovery of dues against a  company by <\/p>\n
     the   name   of   Mansukh   Industries   Ltd.     That <\/p>\n
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\n                                   15<\/span><\/p>\n
     company   was   ordered   to   be   wound   up   by   order <\/p>\n
     dated   20th  December,   1999,   and   the   Official <\/p>\n
     Liquidator   took   the   possession   of   the   property <\/p>\n
     on   18th  January,   2001.     On   9th  May,   2001   the <\/p>\n
     application filed by the bank was allowed in the <\/p>\n
     sum of Rs.13,31,71,362\/- together with interest <\/p>\n
     at the rate of 18% per annum.  The Tribunal held <\/p>\n
     that the bank was entitled to execute the decree <\/p>\n
     by the sale of movable and immovable assets as <\/p>\n
     they   held   a   valid   charge   which   was   registered <\/p>\n
     with   the   Registrar   of   Companies   in   1994.     In <\/p>\n
     execution of the recovery certificate, a warrant <\/p>\n
     of attachment was issued on 31st August, 2002 in <\/p>\n
     respect   of   the   properties.     The   plant   and <\/p>\n
     machinery   were   put   up   for     sale,   which   was <\/p>\n
     confirmed on 9th March, 2005.  The possession was <\/p>\n
     handed over to the  respondent in that petition.\n<\/p>\n
     Appeal   filed   by   the   petitioners   was   dismissed.\n<\/p>\n
     That   order   was   confirmed   by   the   Appellate <\/p>\n
     Tribunal.       While   considering   the   issue   as   to <\/p>\n
     whether   this   Court   should   exercise   its   extra <\/p>\n
     ordinary   jurisdiction   this   Court   noted   that   in <\/p>\n
     view   of   the   provisions   of   law     that   held   the <\/p>\n
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\n                                  16<\/span><\/p>\n
     field,   the   remedy   which   is   available   to   the <\/p>\n
     petitioner   is   to   institute   a   suit   challenging <\/p>\n
     the sale of the plant and machinery.  This Court <\/p>\n
     considered   the   provisions   of   the   Second   and <\/p>\n
     Third Schedules to the Income Tax Act, 1961  and <\/p>\n
     the Income Tax (Certificate Proceedings) Rules, <\/p>\n
     1962.  This Court further observed that the view <\/p>\n
     formed in regard to the necessity of relegating <\/p>\n
     the petitioners to the institution of a suit is <\/p>\n
     supported in the facts of the  case as well, by <\/p>\n
     the   nature   of   the   controversy   which   arose <\/p>\n
     between the parties.  The petitioners contention <\/p>\n
     was   that   the   property   did   not   belong   to   the <\/p>\n
     company   in   liquidation   but   constituted   the <\/p>\n
     assets   of   the   partnership.                Though   the <\/p>\n
     petitioner   had   filed   the   objections   before   the <\/p>\n
     Recovery   Officer   for   raising   the   warrant   of <\/p>\n
     attachment  the property came to be sold without <\/p>\n
     the   objections   being   dealt   with.     Considering <\/p>\n
     the controversy as to the  title to the property <\/p>\n
     and the nature of the evidence that would have <\/p>\n
     to be adduced this Court took the view that it <\/p>\n
     would be a fit case where liberty be granted to <\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                   17<\/span><\/p>\n
     institute   a   suit   in   the   Court   of   Competent <\/p>\n
     jurisdiction.     This   Court,   therefore,   took   the <\/p>\n
     view   that   from   proceedings   in   execution <\/p>\n
     rejecting the claim of the objector, such party <\/p>\n
     could file a suit for determining his title to <\/p>\n
     the property.\n<\/p>\n
     6.       With   that   background   let   us   now   consider <\/p>\n
     the arguments advanced at the bar on behalf of <\/p>\n
     the parties to answer the question raised.   On <\/p>\n
     behalf   of   the   plaintiffs   it   is   submitted   that <\/p>\n
     there   is   no   finding   in   any   of   the     judgments <\/p>\n
     Keshrimal T. Shah (supra) or Dr. Anil Nandkishor <\/p>\n
     Tibrewala (supra)to the effect that  third party <\/p>\n
     whose property has been declared by the D.R.T.\n<\/p>\n
     to   be   validly   mortgaged     in   favour   of   a   bank <\/p>\n
     and\/or   financial   institution   and     properties <\/p>\n
     attached and   sold in execution, from an order <\/p>\n
     rejecting   his   objections   are     prevented   or <\/p>\n
     precluded   by   any   provisions   contained   in   the <\/p>\n
     R.D.B. Act from filing a suit in the Civil Court <\/p>\n
     to   enforce   his   rights   with   regard   to   such <\/p>\n
     property   and   as   such   there   is   no   conflict <\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                   18<\/span><\/p>\n
     whatsoever in the view taken by the   aforesaid <\/p>\n
     judgments.   Learned   Counsel   has   placed   reliance <\/p>\n
     on   the   judgment   of   the   Supreme   Court   in <\/p>\n
     Dhulabhai   vs.   State   of   Madhya   Pradesh   &   Anr., <\/p>\n
     AIR<\/a>   1969   S.C.   78  and   the   judgment   in  Raja   Ram <\/p>\n
     Kumar   Bhargava   vs.   Union   of   India,   (1988)   1 <\/p>\n
     S.C.C.,   681.     Reference   is   then   made   to   the <\/p>\n
     provisions of Sections 17 and 18 of the R.D.B.\n<\/p>\n
     Act to contend that the bar of jurisdiction as <\/p>\n
     set   out   under   Section   18   applies   only   to <\/p>\n
     application   from   banks   and   financial <\/p>\n
     institutions for recovery of dues of such banks <\/p>\n
     and   financial   institutions.   It   is   also   pointed <\/p>\n
     out that   Rule 11(6) of the Second Schedule of <\/p>\n
     the   Income   Tax   Act     by   reference   has   been <\/p>\n
     incorporated into   the R.D.B. Act.   The R.D.B.\n<\/p>\n
     Act has expressly reaffirmed the right of such <\/p>\n
     third   party   to   institute   a   Civil   Suit   to <\/p>\n
     establish his right to the property and making <\/p>\n
     the   orders   passed   by   the   Recovery   Officer <\/p>\n
     subject   to   the   result   of   such   suit.     For   the <\/p>\n
     scope   of   Rule   11(6)   reliance   is   placed   on   the <\/p>\n
     judgment   in  Tax   Recovery   Officer   II,   Sadar,
\n                                        ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                   19<\/span><\/p>\n
     Nagpur vs. Gangadhar Vishwanath Ranade, (1998) 6 <\/p>\n
     SCC   658    where   the   Court   observed   that   the <\/p>\n
     procedure   there     is   not   meant   to   decide <\/p>\n
     intricate   questions   of   law   as   to   title   to   the <\/p>\n
     property.  Our attention is also invited to the <\/p>\n
     judgment   in         Allahabad   Bank   vs.   Canara   Bank <\/p>\n
     and Anr., (2000) 4 SCC  406, to contend that the <\/p>\n
     judgment   nowhere   has   taken   the   view   that   the <\/p>\n
     jurisdiction of Civil Court has been ousted.  It <\/p>\n
     is,   therefore,   pointed   out   that   the   suit   as <\/p>\n
     instituted by the Plaintiffs is maintainable and <\/p>\n
     the   jurisdiction   of   the   Civil   Court   is   not <\/p>\n
     expressly barred.\n<\/p>\n
     7.   On   the   other   hand   on    behalf   of   the <\/p>\n
     Defendant No.1-Union Bank of India their learned <\/p>\n
     Counsel has made the following submissions:-\n<\/p>\n
          Such   a   suit   in   law     is   barred   as   the <\/p>\n
     jurisdiction   of   the   Civil   Court   is   expressly <\/p>\n
     and\/or   by   necessary   implication   or   impliedly <\/p>\n
     excluded.   The R.D.B. Act, is a self contained <\/p>\n
     Code   which   provides   a   remedy   for   such   persons <\/p>\n
     and ousts the  jurisdiction of the Civil Courts
\n                                        ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                  20<\/span><\/p>\n
     to entertain such suits.   The R.D.B. Act, is a <\/p>\n
     common   code   for   adjudication   and   recovery   of <\/p>\n
     debts   due   to   banks   and   financial   institutions <\/p>\n
     and   for   matters   connected   therewith   or <\/p>\n
     incidental thereto.   Considering the provisions <\/p>\n
     of   RDB   Act   one   important   fact   has   to   be <\/p>\n
     appreciated   is   that   the   Civil   Court   in <\/p>\n
     exercising jurisdiction will have to hold  that <\/p>\n
     the declaration, by the Tribunal of the factum <\/p>\n
     of   a   mortgage,   was   erroneous.       The   only   and <\/p>\n
     inevitable consequence of holding   that such a <\/p>\n
     civil suit can lie, is to permit a civil court <\/p>\n
     to review the correctness of the decision of the <\/p>\n
     Debt Recovery Tribunal.\n<\/p>\n
                The   learned   Counsel   has   also   taken   us <\/p>\n
     through  the statement of Objects and Reasons of <\/p>\n
     the RDB Act 1993 and the Amendment Act of 1991 <\/p>\n
     and placed reliance on the judgment in Allahabad <\/p>\n
     Bank (supra) to contend   that the jurisdiction <\/p>\n
     of the Civil Court is clearly excluded.\n<\/p>\n
                It is next submitted that the arguments <\/p>\n
     advanced on behalf of the   Plaintiffs does not
\n                                        ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                   21<\/span><\/p>\n
     take into consideration the specific provisions <\/p>\n
     of Section 17 or 18 of the RDB Act.  The claims <\/p>\n
     of   third   parties,   it   is   submitted,   considering <\/p>\n
     the   judgment   of   this   Court   in   Dr.   Anil <\/p>\n
     Nandkishor Tibrewala (supra) would be under the <\/p>\n
     RDB Act and  this Court whilst interpreting the <\/p>\n
     provisions of Rule 11(6) will have to take into <\/p>\n
     consideration   the   serious   consequences   or <\/p>\n
     mischief   that   will   follow   if   a   view   is   taken <\/p>\n
     that the orders of the Tribunals are left open <\/p>\n
     for challenge before the Civil Court.   Even in <\/p>\n
     respect of objections raised by third party an <\/p>\n
     appeal   would   lie,   as   the   nature   of   the <\/p>\n
     objections would be to the mode of recovery.\n<\/p>\n
     8.   In   answering   the   issue   we   will   have   to <\/p>\n
     consider the provisions of the RDB Act including <\/p>\n
     Section   29   which   by   incorporation   has   made <\/p>\n
     applicable   the   provisions   of   the   Second   and <\/p>\n
     Third   Schedules   to   the   Income   Tax   Act   as   also <\/p>\n
     the Income Tax (Certificate Proceedings) Rules, <\/p>\n
     1962   as   in   force   from   time   to   time.     These <\/p>\n
     provisions , shall as far as possible apply with <\/p>\n
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\n                                  22<\/span><\/p>\n
     modifications   as     if   the   said   provisions <\/p>\n
     referred to a debt due under this Act instead of <\/p>\n
     Income Tax Act.\n<\/p>\n
     9.    To understand the various contentions, let <\/p>\n
     us   firstly   consider   the   background   to   the <\/p>\n
     enactment of the RDB Act, 1993 and the Amendment <\/p>\n
     Act   1   of   2000.     The   Act   as   its   preamble <\/p>\n
     discloses seeks to provide for the establishment <\/p>\n
     of   Tribunals,   for   expeditious   adjudication   and <\/p>\n
     recovery   of   debts   due   to   Banks   and   Financial <\/p>\n
     Institutions.     We   may   gainfully   refer   to   the <\/p>\n
     Statement of Objects and Reasons of the RDB Act, <\/p>\n
     which read as under:-\n<\/p>\n
               “Statement of Objects and Reasons:- <\/p>\n
                 1.Banks and financial institutions at
\n                   present   experience   considerable
\n                   difficulties   in   recovering   loans <\/p>\n
                   and   enforcement   of   securities
\n                   charged   with   them.     The   existing
\n                   procedure for recovery of debts due
\n                   to   the   bans   and   financial
\n                   institutions   has   blocked   a
\n                   significant   portion   of   their   funds
\n                   in   unproductive   assets,   the   value
\n                   of   which   deteriorates   with   the
\n                   passage of time.   The Committee on
\n                   the financial system headed by Shri
\n                   M.   Narasimham   has   considered   the
\n                   setting up of the Special Tribunals
\n                   with   special   powers   for
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\n                         23<\/span><\/p>\n
           adjudication   of   such   matters   and
\n           speedy recovery as critical to the
\n           successful   implementation   of   the <\/p>\n
           financial   sector   reforms.     An
\n           urgent need was, therefore, felt to <\/p>\n
           work   out   a   suitable   mechanism
\n           through which the dues to the banks
\n           and financial institutions could be
\n           realized without delay. In 1981, a <\/p>\n
           Committee under the Chairmanship of
\n           Shri   T.   Tiwari   had   examined   the
\n           legal   and   other   difficulties   faced
\n           by banks and financial institutions <\/p>\n
           and   suggested   remedial   measures
\n           including   changes   in   law.   The
\n        ig Tiwari Committee had also suggested
\n           setting up of Special Tribunals for
\n           recovery   of   dues   of   the   banks   and <\/p>\n
           financial institutions by following
\n           a   summary   procedure.     The   setting
\n           up   of   Special   Tribunals   will   not
\n           only fulfill a long-felt need, but
\n           also   will   be   an   important   step   in <\/p>\n
           the implementation of the Report of <\/p>\n
           Narasimham   Committee.   Whereas   on
\n           30th  September   1990,   more   than
\n           fifteen lakhs of cases fled by the
\n           public   sector   banks   and   about   304 <\/p>\n
           cases   filed   by   the   financial
\n           institutions   were   pending   in
\n           various   Courts,   recovery   of   debts
\n           involved   more   than   Rs.5662   Crores
\n           in dues of Public Sector Banks and <\/p>\n
           about Rs.391 Crores of dues of the
\n           financial institutions. The locking
\n           up   of   such   huge   amount   of   public
\n           money in litigation prevents proper
\n           utilization   and   recycling   of   the
\n           funds   for   the   development   of   the
\n           country.\n<\/p>\n
       2.The   Bill   seeks   to   provide   for   the
\n         establishment   of   Tribunals   and
\n         Appellate Tribunals for expeditious
\n         adjudication   and   recovery   of   debts
\n         due   to   banks   and   financial
\n                              ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                 24<\/span><\/p>\n
                    institutions.”\n<\/p>\n
     10.  Similarly  we  may  make  gainful  reference to <\/p>\n
     the   Statement   of   Objects   and   Reasons   of   the <\/p>\n
     Amendment Act 1 of 2000, which read as under:-\n<\/p>\n
         “Statement of Objects and Reasons:-\n<\/p><\/blockquote>\n
                 1.The   Recovery   of   Debts   due   to
\n                   Banks          and         Financial <\/p>\n
                   Institutions   Act,   1993   was
\n                   enacted   on   27th  August   1993   to
\n                   provide   for   the   establishment <\/p>\n
                   of   Tribunals   for   expeditious
\n                   adjudication   and   recovery   of
\n                   debts   due   to   banks   and
\n                   financial   institutions   and   for
\n                   matters   connected   therewith   or <\/p>\n
                   incidental thereto.\n<\/p><\/blockquote>\n
                 2.The   legality   and   validity   of
\n                   the   Act,   was,   however,
\n                   challenged   in   the   Delhi   High <\/p>\n
                   Court.   in the matter of Delhi
\n                   High Court Bar Association V\/s
\n                   Union of India (AIR 1995 Delhi\n<\/p><\/blockquote>\n
                   323),   the   Delhi   High   Court   in
\n                   its   judgment   and   order   dated <\/p>\n
                   the   10th  March   1995,   while
\n                   upholding   the   powers   of   the
\n                   Central         Government           to
\n                   constitute Tribunals other than
\n                   the   Tribunals   constituted   in
\n                   exercise   of   powers   under
\n                   articles   323A   and   323B   of   the
\n                   Constitution,   declared   the
\n                   aforesaid   Act   unconstitutional
\n                   and void on ground which inter
\n                   alia include that–\n<\/p><\/blockquote>\n
                      (i)       the   Act   does   not \n                                      ::: Downloaded on - 09\/06\/2013 15:14:10 :::<\/span>\n                      25<\/span>\n\n                   contain provisions for \n                   set-off,           counter \n                   claims   or   transfer   of \n\n\n\n\n                                                   \n                   cases   from   one \n                   Tribunal to another;\n\n\n\n\n                           \n           (ii)   the Act has placed the \n                  Tribunals   on   a \n                  pedestal   higher   than \n\n\n\n\n                          \n                  the   High   Court   in \n                  respect   of   monetary \n                  jurisdiction; and\n\n\n\n\n                 \n           (iii)  the judiciary has been \n                  given   no   role   in   the \n        ig        appointment\n                  Presiding Officers.\n                                            of \n      \n<\/pre>\n
       3.In the Special Leave Petition,
\n         filed   before   it,   the   Hon’ble
\n         Supreme   Court   on   18th  March
\n         1996,   while   dealing   with
\n         Transfer   Petitions   (Civil) <\/p>\n
         659-667\/95   directed   that <\/p>\n
         notwithstanding   any   stay   order
\n         passed   in   any   of   the   Writ
\n         Petitions   sought   to   be
\n         transferred   to   the   Supreme <\/p>\n
         Court,   the   Debts   Recovery
\n         Tribunals established under the
\n         Recovery of Debts due to Banks
\n         and Financial Institutions Act,
\n         1993   shall   resume   their <\/p>\n
         functions.   The Debts Recovery
\n         Tribunals have been functioning
\n         under the stay order granted by
\n         the   Supreme   Court   for   over
\n         fifty   months.     In   subsequent
\n         hearings   before   the   Hon’ble
\n         Supreme Court, a submission was
\n         made   that   the   Central
\n         Government   would   consider
\n         amending the Act to address the
\n         legal   anomalies   while   ensuring
\n         that   the   dedicated   nature   of
\n         the   recovery   system   does   not
\n                           ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                         26<\/span><\/p>\n
           get   diluted.     In   backdrop   of
\n           the   observation   made   by   the
\n           Supreme   Court,   there   was   a <\/p>\n
           possibility   that   the   Supreme
\n           Court   would   vacate   the   stay <\/p>\n
           order   against   the   order   of
\n           Delhi   High   Court.     in   such   an
\n           eventuality,   the   Tribunals
\n           would cease to exist, all case <\/p>\n
           which have been transferred to
\n           Debts   Recovery   Tribunals   from
\n           the   High   Courts   or   have   been
\n           freshly   instituted   before   the <\/p>\n
           Debts   Recovery   Tribunals   would
\n           have to be transferred back to
\n        ig respective High Courts and all
\n           progress made by the Tribunals
\n           would   be   undone.   The   above <\/p>\n
           circumstances necessitated that
\n           the purported amendments may be
\n           given effect by promulgation of
\n           an Ordinance.  These amendments
\n           have   been   made   to   address   the <\/p>\n
           legal anomalies observed by the <\/p>\n
           Hon’ble   Court.   It   is   now
\n           necessary   that   the   Ordinance
\n           may be replaced by an Act.\n<\/p><\/blockquote>\n<\/blockquote>\n
       4.Amendments   to   the   Recovery   of
\n         Debts   Due   to   Banks   and
\n         Financial   Institutions   Act,
\n         1993   are   proposed   to   ensure
\n         expeditious   adjudication   and <\/p>\n
         recovery   of   dues   to   banks   and
\n         financial   institutions,   remove
\n         legal   anomalies   and   strengthen
\n         the   Recovery   Tribunals.     The
\n         main   provisions   of   the   Bill
\n         relate to–<\/p><\/blockquote>\n
           (i) set-off   and   counter
\n               claims,   appointment   of
\n               Receivers              and
\n               Commissioners   by   the
\n               Tribunal,   transfer   of
\n               cases from one Tribunal to
\n                               ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                27<\/span><\/p>\n
                       another and appointment of
\n                       more   than   one   Recovery
\n                       Officer in a Tribunal;\n<\/p><\/blockquote>\n
                  (ii) empowering   the   Tribunals
\n                       to   issue   certificates   for <\/p>\n
                       recovery   of   enhanced   or
\n                       reduced   amount   on   the
\n                       basis   of   the   final   order
\n                       of the Appellate Tribunal;\n<\/p><\/blockquote>\n
                  (iii)      empowering              the
\n                       Chairperson   of   the
\n                       Appellate   Tribunal   to
\n                       appraise   the   work   of <\/p>\n
                       Presiding   Officers   of
\n                       Tribunals   and   discharge
\n                 ig    functions           of
\n                       Chairperson   of   another
\n                                                     the <\/p>\n
                       Appellate Tribunal;\n<\/p><\/blockquote>\n
                  (iv) the   transfer   of   recovery
\n                       certificates   from   one
\n                       Tribunal   to   another
\n                       Tribunal   to   facilitate
\n                       recovery;\n<\/p><\/blockquote>\n
                    (v)empowering   the   Tribunals <\/p>\n
                             to   distribute   sale
\n                             proceeds   among   the
\n                             secured   creditors   in
\n                             accordance   with   the <\/p>\n
                             provisions   of   Section
\n                             529A   of   the   Companies
\n                             Act;\n<\/p><\/blockquote>\n
                     (vi)       the   laying   of <\/p>\n
                             notifications   issued
\n                             under   sub-section   (4)
\n                             of   Section   1,   section
\n                             2   and   sections   8   of
\n                             the   Act   before   the
\n                             Parliament.\n<\/p><\/blockquote>\n
                  5.   The   Bill   seeks   to   replace
\n                  the said Ordinance.”   <\/p><\/blockquote>\n
     11. As can be seen from the Statement of Objects <\/p>\n
     and Reasons the Act was introduced to provide an <\/p>\n
                                     ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                  28<\/span><\/p>\n
     alternative  forum to the Civil Court by way of <\/p>\n
     Tribunals   to   decide   claims   by   financial <\/p>\n
     institutions in respect of debts due to them by <\/p>\n
     borrowers.  The  amendment Act, I of 2000, inter <\/p>\n
     alia,  sought   to   empower   the   Tribunals   created <\/p>\n
     and functioning under the RDB Act with (i) the <\/p>\n
     power to entertain set offs and counter-claims;\n<\/p>\n
     and (ii) the power to distribute sale proceeds <\/p>\n
     of   companies   in   liquidation,   among   secured <\/p>\n
     creditors   under   Section   529-A   of   the   Companies <\/p>\n
     Act,   1956.   Considering   these   objects   the <\/p>\n
     primary   underlying   object   of   the   RDB   Act   and <\/p>\n
     Amendment   Act   I   of   2000   is   the   expeditious <\/p>\n
     adjudication  and  recovery  of dues of banks and <\/p>\n
     financial   institutions.   In   the   case   of   United <\/p>\n
     Bank of India V\/s. The Debts Recovery Tribunal <\/p>\n
     and   Ors.   [(1999)   4   SCC   p.69],   the   Hon’ble <\/p>\n
     Supreme Court of India, observed as under:-\n<\/p>\n
                 “6. The   Act   and   he   relevant  <\/p>\n
                 provisions will have to be construed  <\/p>\n
                 bearing in mind the objects for which  <\/p>\n
                 the   Parliament   passed  the  enactment.\n<\/p><\/blockquote>\n
                 The   prime   object   of   the   enactment  <\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                     29<\/span><\/p>\n
                 appears   to   be   to   provide   for   the  <\/p>\n
                 establishment   of   tribunals   for <\/p>\n
                 expeditious adjudication and recovery <\/p>\n
                 of   debts   due   to   banks   and   financial  <\/p>\n
                 institutions   and   for   matters <\/p>\n
                 connected therewith or incidental.”\n<\/p><\/blockquote>\n
     12. Having   considered     the     object   behind <\/p>\n
     enacting   the   RDB   Act   (including   the   2000
\n     Amendment), we may consider some   provisions of <\/p>\n
     the RDB Act :-\n<\/p>\n
              Section   2(g):  “debt”   means   any
\n              liability   (inclusive   of   interest) <\/p>\n
              which   is   claimed   as   due   from   any
\n              person   by   a   bank   or   a   financial <\/p>\n
              institution  or   by  a  consortium  of
\n              banks   or   financial   institutions
\n              during  the   course  of  any   business
\n              activity undertaken by the bank or <\/p>\n
              the   financial   institution   or   the
\n              consortium   under   any   law   for   the
\n              time   being   in   force,   in   cash   or
\n              otherwise,   whether   secured   or
\n              unsecured, or assigned, or whether <\/p>\n
              payable under a decree or order of
\n              any civil Court or any arbitration
\n              award   or   otherwise   or   under   a
\n              mortgage   and   subsisting   on,   and
\n              legally   recoverable   on,   the   date
\n              of the application.”\n<\/p><\/blockquote>\n
              Section   17:  Jurisdiction,   powers
\n              and   authority   of   Tribunals.–(1)   A
\n              Tribunal   shall   exercise,   on   and
\n              from   the   appointed   day,   the
\n              jurisdiction, powers and authority
\n              to   entertain   :::and            ondecide
\n                                        Downloaded  – 09\/06\/2013 15:14:10   :::\n<\/p><\/blockquote>\n
                           30<\/span><\/p>\n
       applications   from   the   banks   and
\n       financial   institutions   for
\n       recovery   of   debts   due   to   such  <\/p>\n
       banks and financial institutions.
\n       (2)   An   Appellate   Tribunal   shall  <\/p>\n
       exercise,   on   and   from   the
\n       appointed   day,   the   jurisdiction,
\n       powers   and   authority   to   entertain
\n       appeals against any order made, or <\/p>\n
       deemed   to   have   been   made,   by   a
\n       Tribunal under this Act.”\n<\/p>\n
       Section   18:  Bar   of   Jurisdiction:\n<\/p>\n
       On and from the appointed day, no
\n       Court   or   other   authority   shall  <\/p>\n
       have,  or  be  entitled  to  exercise,
\n       any   jurisdiction,   powers   of
\n       authority   (except   the   Supreme  <\/p>\n
       Court, and a High Court exercising
\n       jurisdiction   under   articles   226
\n       and   227   of   the   Constitution)   in
\n       relation   to   the   matters   specified
\n       in Section 17.\n<\/p>\n
       Section   20:   “Appeal   to   the
\n       Appellate   Tribunal.–(1)   Save   as
\n       provided   in   sub-section   (2),   any
\n       person aggrieved by an order made, <\/p>\n
       or deemed to have been made, by a
\n       Tribunal   under   this   Act,   may
\n       prefer   an   appeal   to   an   Appellate
\n       Tribunal   having   jurisdiction   in
\n       the mater.\n<\/p>\n
       (2)   No   Appeal   shall   lie   to   the
\n       Appellate   Tribunal   from   an   order
\n       made   by   a   Tribunal   with   the
\n       consent of the parties.\n<\/p>\n
       (3) Every appeal under sub-section
\n       (1) shall be filed within a period
\n       of   forty   five   days   from   the   date
\n       on which a copy of the order made,
\n       or   deemed   to   have   been   made,   by
\n       the   Tribunal   is   received   by   him
\n       and   it   shall   be   in   such   form   and
\n       be accompanied by such fee as may
\n       be   prescribed:   Provided   that   the
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\n                          31<\/span><\/p>\n
       Appellate   Tribunal   may   entertain
\n       an appeal after the expiry of the
\n       said period of forty five days if <\/p>\n
       it   is   satisfied   that   there   was
\n       sufficient  cause  for   no  filing  it  <\/p>\n
       within that period.\n<\/p>\n
       (4) On receipt of an appeal under
\n       sub-section   (1),   the   Appellate
\n       Tribunal   may,   after   giving   the  <\/p>\n
       parties   to   the   appeal,   an
\n       opportunity   to   being   heard,   pass
\n       such   orders   thereon   as   it   thinks
\n       fit,   confirming,   modifying   or <\/p>\n
       setting   aside   the   order   appealed
\n       against.\n<\/p>\n
       (5)   The   Appellate   Tribunal   shall
\n       send a copy of every order made by
\n       it   to   the   parties   to   the   appeal <\/p>\n
       and to the concerned Tribunal.\n<\/p>\n
       (6)   The   appeal   filed   before   the
\n       Appellate   Tribunal   under   sub-\n<\/p>\n
       section (1) shall be dealt with by
\n       it   as   expeditiously   as   possible  <\/p>\n
       and endeavour shall be made by it <\/p>\n
       to  dispose   off  the   appeal  finally
\n       within six months from the date of
\n       receipt of the appeal.”\n<\/p>\n
       Section   22(e):  reviewing   the
\n       decisions.\n<\/p>\n
       Section   29:   “Application   of
\n       certain   provisions   of   Income   Tax  <\/p>\n
       Act.–The   provisions   of   the   Second
\n       and  Third  Schedules  to   the  Income
\n       Tax Act, 1961 (43 of 1961) and the
\n       Income          Tax        (Certificate
\n       proceedings)   Rules,   1962,   as   in
\n       force from time to time shall, as
\n       far   as   possible,   apply   with
\n       necessary   modifications   as   if   the
\n       said   provisions   and   the   rules
\n       referred to the amount of debt due
\n       under   this   Act   instead   of   to   the
\n       income tax.”\n<\/p>\n
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\n                                32<\/span><\/p>\n
       Section   30:   “Appeal   against   the
\n       order   of   Recovery   Officer.–(1)
\n       Notwithstanding   anything   contained <\/p>\n
       in   section   29,   any   person
\n       aggrieved   by   an   order   of   the  <\/p>\n
       Recovery   Officer   made   under   this
\n       Act   may,   within   third   days   from
\n       the   date   on   which   a   copy   of   the
\n       order is issued to him, prefer an <\/p>\n
       appeal to the Tribunal.\n<\/p>\n
       (2) On receipt of an appeal under
\n       sub-section (1), the Tribunal may,
\n       after giving an opportunity to the <\/p>\n
       appellant   to   be   heard,   and   after
\n       making   such   enquiry   as   it   deems <\/p>\n
       fit,   confirm,  modify   or  set  aside
\n       the   order   made   by   the   Recovery
\n       Officer  in   exercise  of   his  powers  <\/p>\n
       under   section25   to   28   (both
\n       inclusive).”\n<\/p>\n
       Section   34:   “Act   to   have <\/p>\n
       overriding   effect.–(1)   Save   as
\n       provided   under   sub-section   (2), <\/p>\n
       the   provisions   of   this   Act   shall
\n       have   effect   notwithstanding
\n       anything   inconsistent   therewith
\n       contained in any other law for the <\/p>\n
       time   being   in   force   or   in   any
\n       instrument having effect by virtue
\n       of any law other than this Act.\n<\/p>\n
       (2)The   provisions   of   this   Act   or   the  <\/p>\n
       rules   made   thereunder   shall   be   in
\n       addition to, and not in derogation of,
\n       the Industrial Finance Corporation Act,
\n       1948 (15 of 1948), the State Financial
\n       Corporation Act, 1951 (63 of 1951), the
\n       Unit   Trust   of   India   Act,   1963   (52   of
\n       1963),   the   Industrial   Reconstruction
\n       Bank   of   India   Act,1984   (62   of   1984),
\n       the   Sick   Industrial
\n                               ::: Companies          (Special
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\n                                                                        :::\n<\/p>\n
                                  33<\/span><\/p>\n
               Provision)   Act,   1985   (1   of   1986)   and
\n               the   Small   Industries   Development   Bank <\/p>\n
               of India Act, 1989 (39 of 1989).”\n<\/p>\n
     13. We may also refer to Rules 9 and   11   (to <\/p>\n
     the extent required) of the Second Schedule to <\/p>\n
     the Income Tax Act, 1961 Rules 9 and 11 reads as <\/p>\n
     under:-\n<\/p>\n
         “General   bar   to   jurisdiction   of   civil  <\/p>\n
         Courts, save where fraud alleged:\n<\/p><\/blockquote>\n
         9.Except as otherwise expressly provided in <\/p>\n
         this   Act,   every   question   arising   between <\/p>\n
         the Tax Recovery Officer and the defaulter <\/p>\n
         or   their   representatives,   relating   to   the <\/p>\n
         execution,   discharge   or   satisfaction   of   a <\/p>\n
         certificate or relating to the confirmation <\/p>\n
         or setting aside by an order under this Act <\/p>\n
         of   a   sale   held   in   excusion   of   such <\/p>\n
         certificate,   shall   be   determined,   not   by <\/p>\n
         suit,   but   by   order   of   the   Tax   Recovery <\/p>\n
         Officer before whom such question arises:\n<\/p><\/blockquote>\n
         Provided  that   a   suit   may   be   brought   in   a <\/p>\n
         civil court in respect of any such question <\/p>\n
         upon the ground of fraud.\n<\/p><\/blockquote>\n
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\n                                 34<\/span><\/p>\n
     Rule 11 reads as under:-\n<\/p>\n
         “Investigation by Tax Recovery Officer:\n<\/p><\/blockquote>\n
         (1) Where any claim is preferred to, or any <\/p>\n
         objection is made to the attachment or sale <\/p>\n
         of,   any   property   in   execution   of   a <\/p>\n
         certificate,   on   the   ground   that   such <\/p>\n
         property   is   not   liable   to   such   attachment <\/p>\n
         or   sale,   the   Tax   Recovery   Officer   shall <\/p>\n
         proceed   to   investigate   the   claim   or <\/p>\n
         objection:\n<\/p><\/blockquote>\n
         Provided   that   no   such   investigation   shall <\/p>\n
         be   made   where   the   Tax   Recovery   Officer <\/p>\n
         considers   that   the   claim   or   objection   was <\/p>\n
         designedly or unnecessarily delayed.\n<\/p><\/blockquote>\n
         (2)   Where   the   property   to   which   the   claim <\/p>\n
         or   objection   applies   has   been   advertised <\/p>\n
         for sale, the Tax Recovery Officer ordering <\/p>\n
         the   sale   may   postpone   it   pending   the <\/p>\n
         investigation   of   the   claim   or   objection, <\/p>\n
         upon such terms as to security or otherwise <\/p>\n
         as the Tax Recovery Officer shall deem fit.<\/p><\/blockquote>\n
         (3)   The   claimant   or   objector   must   adduce <\/p>\n
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\n                             35<\/span><\/p>\n
     evidence to show that —\n<\/p>\n
     (a) (in the case of immovable property) as <\/p>\n
     the   date   of   the   service   of   the   notice <\/p>\n
     issued   under   this   Schedule   to   pay   the <\/p>\n
     arrears, or<\/p>\n
     (b)   (in   the   case   of   movable   property)   at <\/p>\n
     the   date   of   the   attachment,   he   had     some <\/p>\n
     interest   in,   or   was   possessed   of,   the <\/p>\n
     property in question.\n<\/p>\n
     (4) Where, upon the said investigation, the <\/p>\n
     Tax Recovery Officer is satisfied that, for <\/p>\n
     the   reason   stated   in   the   claim   or <\/p>\n
     objection,   such   property   was   not,   at   the <\/p>\n
     said   date,   in   the   possession   of   the <\/p>\n
     defaulter   or   of   some   person   in   trust   for <\/p>\n
     him   or   in   the   occupancy   of   a   tenant   or <\/p>\n
     other   person   paying   rent   to   him,   or   that, <\/p>\n
     being in the possession of the defaulter at <\/p>\n
     the said date, it was so in his possession, <\/p>\n
     not   on   his   person,   or   partly   on   his   own <\/p>\n
     account   and   partly     on   account   of   some <\/p>\n
     other   person,     the   Tax   Recovery   Officer <\/p>\n
     shall make an order releasing the property, <\/p>\n
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\n                                  36<\/span><\/p>\n
          wholly or to such extent as he thinks fit, <\/p>\n
          from attachment or sale.\n<\/p>\n
          (5)   Where   the   Tax   Recovery   Officer   is <\/p>\n
          satisfied   that   the   property   was,   at   the <\/p>\n
          said   date,   in   the   possession   of   the <\/p>\n
          defaulter   as   his   own   property   and   not   on <\/p>\n
          account of any other person, or was in the <\/p>\n
          possession   of   some   other   person   in   trust <\/p>\n
          for him, or in the occupancy of a tenant or <\/p>\n
          other   person   paying   rent   to   him,   the   Tax <\/p>\n
          Recovery Officer shall disallow the claim.\n<\/p>\n
          (6)   Where   a   claim   or   an   objection   is <\/p>\n
          preferred, the party against whom an order <\/p>\n
          is   made   may   institute   a   suit   in   a   civil <\/p>\n
          court   to   establish   the   right   which   he <\/p>\n
          claims   to   the   property   in   dispute;   but, <\/p>\n
          subject   to   the   result   of   such   suit   (if <\/p>\n
          any), the order of the Tax Recovery Officer <\/p>\n
          shall be conclusive.”\n<\/p>\n
     14. An     informed   and   purposive   reading   of   the
\n     RDB Act, would make   it clear that the RDB Act
\n     is     a     self   contained   Code   for   all   matters
\n     concerning   the   adjudication   and   ‘recovery’   of
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\n                                   37<\/span><\/p>\n
     debts due to banks and financial institutions in
\n     respect of :-\n<\/p>\n
               (i) ‘adjudication’ of debts due to
\n               banks and financial institutions;\n<\/p><\/blockquote>\n
               (ii) ‘recovery’ of debts due to banks
\n               and financial institutions; and <\/p>\n<\/blockquote>\n
               (iii)all   matters   ‘connected’   or
\n                     ‘incidental’ to (i) and (ii).\n<\/p><\/blockquote>\n
     In   other   words,   once   there   is   an   application <\/p>\n
     made   by   a   Bank   or   Financial   Institution
\n     asserting  that   there   is   a   debt   due   to   it,   the <\/p>\n
     Tribunals   constituted   under   the   RDB   Act   alone
\n     can   decide   matters   of   ‘adjudication’;
\n     ‘recovery’; and matters connected or incidental <\/p>\n
     thereto including counter claims and set off.\n<\/p>\n
     15. At   this   juncture   before   proceeding   further
\n     we may consider one of the arguments advanced on <\/p>\n
     behalf of the defendant that  permitting a Civil
\n     Court   to   exercise   jurisdiction   would   be
\n     permitting a review of the judgment and\/or order <\/p>\n
     of   Authorities   under   the   R.D.B.     Which   have
\n     become final.\n<\/p>\n
     16. This   argument,   in   our   opinion,   has   to   be
\n     rejected for the following reasons:-\n<\/p>\n
          a)   An   order   which   affects   the   rights   of <\/p>\n
          parties   to   which   such   parties   were   not <\/p>\n
          parties would not bind such parties.\n<\/p><\/blockquote>\n
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\n                                         38<\/span><\/p>\n
           b)   The   RDB   Act   does   not   expressly   contain <\/p>\n
           any   specific   provision   giving   finality   to <\/p>\n
           the   order     passed   by   the   D.R.T.,   though <\/p>\n
           under Section 34(1)  the Act has overriding <\/p>\n
           effect   subject   to   what   is   contained   in <\/p>\n
           Section 34(2).\n<\/p><\/blockquote>\n
           c)   The   jurisdiction   now   exercised   by <\/p>\n
           Tribunals   under   the   RDB   Act     was   earlier <\/p>\n
           exercised by  the Civil Court under Section <\/p>\n
           9 of the Code of Civil Procedure, which is <\/p>\n
           now excluded in matters covered by Section <\/p>\n
           17 of the RDB Act.\n<\/p><\/blockquote>\n
     17. Let     us   now   consider   the   judgment   in
\n     Allahabad Bank V\/s. Canara Bank (supra).\n<\/p>\n
           The   Supreme   Court   was   considering   the
\n     conflicting jurisdictional provisions of the RDB <\/p>\n
     Act   and   the   Companies   Act,   insofar   as
\n     determination of priorities of rival claims was
\n     concerned.   The   rival   claims   which   were
\n     considered by the Hon’ble Supreme Court were (i)
\n     claims by Banks and Financial Institutions; and\n<\/p>\n
     (ii) claims by other creditors. It was contended
\n     before   the   Supreme   Court   that,   under   the
\n     Companies Act, 1956, in the case of a company in
\n     liquidation,   the   question  :::of   priorities   was
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\n                                  39<\/span><\/p>\n
     required   to   be   determined   by   the   Company
\n     Court\/liquidator.   It   was   contended   that   the <\/p>\n
     machinery under the RDB Act was only for claims
\n     by   banks   and   secured   creditors   whilst   the <\/p>\n
     provisions   of   the   Companies   Act   covered   all
\n     claims.   After   an   exhaustive   discussion   of   the <\/p>\n
     provisions   of   the   RDB   Act   and   circumstances
\n     which   led   to   its   enactment,   the   Supreme   Court
\n     held   that   the   Debt   Recovery   Tribunal   had <\/p>\n
     exclusive   jurisdiction   to   decide   the   issue   of <\/p>\n
     priorities   of   all   claimants   (including   third
\n     parties),   since   claims   by   Banks   and   Financial <\/p>\n
     Institutions were involved.\n<\/p>\n
          What falls   from the decision would be the <\/p>\n
     following propositions:-\n<\/p>\n
                i. the   jurisdiction   of   the   tribunals
\n                    under   the   RDB   Act   is   exclusive   on <\/p>\n
                    matters   of   ‘adjudication’   and
\n                    ‘recovery’. In other words, even in
\n                    matters   of   ‘execution’   of   a <\/p>\n
                    Recovery          Certificate,                        the
\n                    jurisdiction is exclusive;
\n               ii. the   exclusive   jurisdiction   covers
\n                    claims   by   third   parties,   as   well
\n                    and       exclusivity             cannot               be
\n                    restricted   to   Banks\/Financial
\n                    Institutions   and   the   Defendant   to
\n                    the Original Application (OA) filed
\n                    before   the   DRT.                A   totally
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\n                                  40<\/span><\/p>\n
                    independent   third   party   creditor
\n                    whose   claim   has   no   nexus   with   the <\/p>\n
                    claim   of   the   Bank\/Financial
\n                    institution,   is   entitled   to   file <\/p>\n
                    objections   before   the   Recovery
\n                    Officer   constituted   under   the   RDB <\/p>\n
                    Act,   because   his   claim   potentially
\n                    conflicts\/impacts\/affects the claim
\n                    by the Bank\/Financial Institutions;\n<\/p><\/blockquote>\n
     18. Thus it will be clear that on consideration <\/p>\n
     of the Statement of Objects and Reasons of the <\/p>\n
     Act and the Amendment Act they inter alia seek <\/p>\n
     to   empower   the   Tribunals   functioning   under   the <\/p>\n
     RDB Act to adjudicate disputes between the Banks <\/p>\n
     and   Financial   Institutions   and   their   borrowers <\/p>\n
     and in view of the Amendment Act 1 of 2000 also <\/p>\n
     entertain set-off and counter-claims as also the <\/p>\n
     power   to   distribute   the   sale   proceeds   of   the <\/p>\n
     companies   in   liquidation     amongst   secured <\/p>\n
     creditors   under   Section   529A   of   the   Companies <\/p>\n
     Act.\n<\/p>\n
     19. The   next   question   that   will   have   to   be <\/p>\n
     considered is whether the judgment in Allahabad
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\n                                  41<\/span><\/p>\n
     Bank (supra)  has concluded the issue as to the <\/p>\n
     ouster of jurisdiction of the Civil Court. The <\/p>\n
     Court   had   fixed   as   many   as   six   points   for <\/p>\n
     consideration   as   set   out   in   para.13.     We   are <\/p>\n
     concerned with Point No.1 which reads as under:-\n<\/p>\n
          “(1) Whether in respect of proceedings under <\/p>\n
          the RDB Act at the stage of adjudication for <\/p>\n
          the   money   due   to   the   banks   or   financial  <\/p>\n
          institutions and at the stage of execution <\/p>\n
          for recovery of monies under the RDB Act,  <\/p>\n
          the Tribunal and the Recovery Officers are <\/p>\n
          conferred   exclusive   jurisdiction   in   their  <\/p>\n
          respective spheres?”\n<\/p><\/blockquote>\n
     After   considering   the   scheme   of   the   Act   the <\/p>\n
     Court observed that it is not intendment of the <\/p>\n
     Act   that   while   the   basic   liability   of   the <\/p>\n
     defendant is to be decided by the Tribunal under <\/p>\n
     Section   17,     the   banks\/financial   institutions <\/p>\n
     should   go   to   the   civil   court   or   the   Company <\/p>\n
     Court   or some other authority outside the Act <\/p>\n
     for the actual realisation of the amount.    The <\/p>\n
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\n                                  42<\/span><\/p>\n
     Certificate   granted   under     Section   19(22)   has, <\/p>\n
     to be executed only by the Recovery Officer.  No <\/p>\n
     dual   jurisdictions   at   different   stages   are <\/p>\n
     contemplated.  Considering Section 34, the Court <\/p>\n
     further   observed   that   the     prescription   of   an <\/p>\n
     exclusive   Tribunal   both   for   adjudication   and <\/p>\n
     execution   is   a   procedure   clearly   inconsistent <\/p>\n
     with   realisation   of   these   debts   in   any   other <\/p>\n
     manner.     It   is,   therefore,   held   that   the <\/p>\n
     jurisdiction   of   the   Recovery   Officer   is <\/p>\n
     exclusive.  After having so said the Court noted <\/p>\n
     as under:-\n<\/p>\n
          “25.   Thus, the adjudication of liability  <\/p>\n
          and the recovery of the amount by execution <\/p>\n
          of the certificate are respectively within  <\/p>\n
          the exclusive jurisdiction of the Tribunal  <\/p>\n
          and the Recovery Officer and no other court <\/p>\n
          or authority much less the civil Court or  <\/p>\n
          the   Company   Court   can   go   into   the   said  <\/p>\n
          questions relating to the liability and the <\/p>\n
          recovery except as provided in the Act”.\n<\/p><\/blockquote>\n
     Thus   the   adjudication   of   liability   and   the <\/p>\n
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\n                                   43<\/span><\/p>\n
     recovery   of   the   amount   by   execution   of <\/p>\n
     certificate     are   respectively   within   the <\/p>\n
     exclusive   jurisdiction   of   the   Tribunal   and   the <\/p>\n
     Recovery Officer and no other Court or authority <\/p>\n
     much less the Civil Court or the Company Court <\/p>\n
     can   go   into   the   said   question   relating   to   the <\/p>\n
     liability and the recovery except as provided in <\/p>\n
     the   Act.   Therefore,   parties   will   have   to   seek <\/p>\n
     remedies under the Act. It would thus be clear <\/p>\n
     that   even   in   respect   of   matters   pertaining   to <\/p>\n
     execution it is the Recovery Officer alone who <\/p>\n
     would   have   jurisdiction.   That   would   be   subject <\/p>\n
     to the other provisions of the Act which would <\/p>\n
     include   Section   29   as   also     Rule   11   of   the <\/p>\n
     second Schedule to the Income Tax Act.\n<\/p>\n
     20. Earlier in Union Bank of India vs. The Debts <\/p>\n
     Recovery   Tribunal   &   Ors.,   1999   (4)   SCC   69   the <\/p>\n
     Court   had   observed   that     the   Act   and   the <\/p>\n
     relevant   provisions   will   have   to   be   construed <\/p>\n
     bearing   in   mind   the   objects   for   which   the <\/p>\n
     Parliament   passed   the   enactment.   The     prime <\/p>\n
     object of the enactment appears to be to provide <\/p>\n
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\n                                  44<\/span><\/p>\n
     for   the   establishment   of   Tribunals   for <\/p>\n
     expeditious   adjudication   and   recovery   of   debts <\/p>\n
     due to banks and financial institutions and for <\/p>\n
     matters   connected   therewith   or   incidental <\/p>\n
     thereto.   The Court then observed as under:-\n<\/p>\n
          “In   ascertaining   the   question   whether   any <\/p>\n
          particular   claim   of   any   bank   or   financial <\/p>\n
          institution   would   come   within   the   purview <\/p>\n
          of   the   tribunal   created   under   the   Act,   it <\/p>\n
          is   imperative   that   the   entire   averments <\/p>\n
          made by the plaintiff in the plaint have to <\/p>\n
          be   looked   into   and   then   find   out   whether <\/p>\n
          notwithstanding   the   specially   created <\/p>\n
          tribunal   having   been   constituted,   the <\/p>\n
          averments   are   such   that   it   is   possible   to <\/p>\n
          hold that the jurisdiction of such tribunal <\/p>\n
          is ousted.”\n<\/p><\/blockquote>\n
     21.     The   ouster   of   jurisdiction   of   the   Civil <\/p>\n
     Court   to   that   extent   will   also   have   to   be <\/p>\n
     considered and we may gainfully refer to some of <\/p>\n
     the conclusions  arrived at by the Supreme Court <\/p>\n
     in  Dhulabhai   etc.,   v.   State   of   Madhya   Pradesh
\n                                        ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                                  45<\/span><\/p>\n
     and   Anr.,   AIR   1969   S.C.   78.  The   following <\/p>\n
     principles may be gainfully reproduced from the <\/p>\n
     said judgment:-\n<\/p>\n
         “The result of this inquiry into the diverse <\/p>\n
     views expressed in this Court may be stated as <\/p>\n
     follows:-\n<\/p>\n
       1.Where   the   statute   gives   a   finality   to   the <\/p>\n
         orders   of   the   special   tribunals   the   civl <\/p>\n
         Courts   jurisdiction   must   be   held   to   be <\/p>\n
         excluded   if   there   is   adequate   remedy   be <\/p>\n
         excluded if there is adequate remedy to do <\/p>\n
         what the civil courts would normally do in <\/p>\n
         a suit.   Such provision, however, does not <\/p>\n
         exclude those cases where the provisions of <\/p>\n
         the   particular   Act   have   not   been   complied <\/p>\n
         with   or   the   statutory   tribunal   has   not <\/p>\n
         acted   in   conformity   with   the   fundamental <\/p>\n
         principles of judicial procedure.\n<\/p>\n
         (2)   Where   there   is   an   express   bar   of   the <\/p>\n
         jurisdiction   of   the   court,   an   examination <\/p>\n
         of the scheme of the particular Act to find <\/p>\n
         the   adequacy   or   the   sufficiency   of   the <\/p>\n
         remedies   provided   may   be   relevant   but   is
\n                                       ::: Downloaded on – 09\/06\/2013 15:14:10 :::<\/span>
\n                              46<\/span><\/p>\n
     not decisive to sustain the jurisdiction of <\/p>\n
     the civil court.\n<\/p>\n
     Where   there   is   no   express   exclusion   the <\/p>\n
     examination of the remedies and the scheme <\/p>\n
     of   the   particular   Act   to   find   out   the <\/p>\n
     intendment becomes necessary and the result <\/p>\n
     of   the   inquiry   may   be   devisive.     In   the <\/p>\n
     latter   case   it   is   necessary   to   see   if   the <\/p>\n
     statute   creates   a   special   right   or   a <\/p>\n
     liability        and         provides              for            the <\/p>\n
     determination   of   the   right   or   liability <\/p>\n
     and   further   lays   down   that   all   questions <\/p>\n
     about the said right and liability shall be <\/p>\n
     determined by the tribunals so constituted, <\/p>\n
     and   whether   remedies   normally   associated <\/p>\n
     with actions in civil courts are prescribed <\/p>\n
     by the said statute or not.\n<\/p>\n
     (3)….\n<\/p>\n
     (4)….\n<\/p>\n
     (5)….\n<\/p>\n
     (6)   Questions   of   the   correctness   of   the <\/p>\n
     assessment apart from its constitutionality <\/p>\n
     are for the decision of the authorities and <\/p>\n
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\n                                  47<\/span><\/p>\n
         a civil suit does not lie if the orders of <\/p>\n
         the authorities are declared to be final or <\/p>\n
         there   is   an   express   prohibition   in   the <\/p>\n
         particular   Act.   In   either   case   the   scheme <\/p>\n
         of   the   particular   Act   must   be   examined <\/p>\n
         because it is a relevant equity.\n<\/p>\n
         (7) An exclusion of the jurisdiction of the <\/p>\n
         civil   Court   is   not   readily   to   be   inferred <\/p>\n
         unless the conditions above set down apply.\n<\/p>\n
     22. These principles have been reiterated  in <\/p>\n
     Raja Ram Kumar Bhargava (Dead) by Lrs. vs. Union <\/p>\n
     of India, (1988)1 SCC 681. We may gainfully <\/p>\n
     reproduce paragraph 19 which reads as under:-\n<\/p>\n
         “19.   But   then,   even   if   the   right   to   claim <\/p>\n
         interest   on   the   refunds   of   excess   profits <\/p>\n
         tax   could   be   said   to   have   been   preserved, <\/p>\n
         the question yet remains whether a suit for <\/p>\n
         its   recovery   is   at   all   maintainable.   The <\/p>\n
         question   runs     on   the   scope   of   the <\/p>\n
         exclusionary   clause   in   the   statute.     The <\/p>\n
         effect   of   clauses   excluding   the   civil <\/p>\n
         court’s   jurisdiction   are   considered   in
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\n                            48<\/span><\/p>\n
     several   pronouncements   of   the   Judicial <\/p>\n
     Committee   and   of   this   Court   (see   Scretary <\/p>\n
     of State v. Mask & C., K.S.Venkataramkan & <\/p>\n
     Co.<\/a> vs. State of Madras; Dhulabhai v. State <\/p>\n
     of Madhya Pradesh, Premier Automobiles Ltd.<\/a>\n<\/p><\/blockquote>\n
     vs.   Kamalakar   Shantaram   Wadke.     Generally <\/p>\n
     speaking,   the   broad   guiding   considerations <\/p>\n
     are that wherever a right, not pre existing <\/p>\n
     in common law, is created by a statute and <\/p>\n
     that   statute   itself   provided   a   machinery <\/p>\n
     for the enforcement of the  right, both the <\/p>\n
     right   and   the   remedy   having   been   created <\/p>\n
     uno flatu and a finality is intended to the <\/p>\n
     result   of   the   statutory   proceedings,   then, <\/p>\n
     even   in   the   absence   of   an   exclusionary <\/p>\n
     provision the civil Court’s jurisdiction is <\/p>\n
     impliedly   barred.    If,   however,   a   right <\/p>\n
     pre-existing in common law is recognised by <\/p>\n
     the statute and a new statutory remedy for <\/p>\n
     its enforcement provided, without expressly <\/p>\n
     excluding   the   civil   Court’s   jurisdiction, <\/p>\n
     then both the common law and the statutory <\/p>\n
     remedies   might   become   concurrent   remedies <\/p>\n
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\n                                  49<\/span><\/p>\n
          leaving open an element of election to the <\/p>\n
          persons of inherence.   To what extent, and <\/p>\n
          on what areas and under what circumstances <\/p>\n
          and   conditions,   the   civil   court’s <\/p>\n
          jurisdiction   is   preserved   even   where   there <\/p>\n
          is   an   express   clause   excluding   their <\/p>\n
          jurisdiction,   are   considered   in   Dhulabhai <\/p>\n
          case.” (emphasis supplied).\n<\/p>\n
     23. Before   proceeding   to   answer   the   issue,   we <\/p>\n
     may also refer to the scope of Rule 11 of the <\/p>\n
     Second Schedule.   The Hon’ble Supreme Court in <\/p>\n
     Tax   Recovery   Officer   II,   Sadar,   Nagpur   vs. <\/p>\n
     Gangadhar   Vishwanath   Ranade,   (1998)   6   SCC   658, <\/p>\n
     was considering the scope of Rule 11. This Court <\/p>\n
     had taken a view that the Tax Recovery Officer <\/p>\n
     had   no   power   under   Rule   11   of   the   Second <\/p>\n
     Schedule   to   the   Income   Tax   Act   to   declare   as <\/p>\n
     void,   transfer   of   property   effected   by   the <\/p>\n
     Respondent   there   during   the   pendency   of <\/p>\n
     proceedings   against   him   under   the   Income   Tax <\/p>\n
     Act.  The Court noted the provisions of Section <\/p>\n
     281 of the Income Tax Act and held that Section <\/p>\n
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\n                                   50<\/span><\/p>\n
     281 merely declared what the law was.   Section <\/p>\n
     281 did not prescribe any adjudicatory machinery <\/p>\n
     for   deciding   any   question     which     may   arise <\/p>\n
     under Section 281.  As such the legislature had <\/p>\n
     no   intention   to   confer   an   exclusive   power   and <\/p>\n
     jurisdiction upon the Income Tax Authorities to <\/p>\n
     decide the questions arising under Section 281.\n<\/p>\n
     The   Court   there     was   considering   the   question <\/p>\n
     whether   in   a   proceeding   under   Rule   11   of   the <\/p>\n
     Second   Schedule   to   the   Income   Tax   Act   the   Tax <\/p>\n
     Recovery Officer can declare a transfer as void <\/p>\n
     under Section 281.  After considering the powers <\/p>\n
     of   the   Tax   Recovery   Officer   and   Rule   11(4)(5) <\/p>\n
     and   (6)   the   Court   observed   that     what   the   Tax <\/p>\n
     Recovery   Officer   has   to   examine     is   who   is   in <\/p>\n
     possession of the property and in what capacity.\n<\/p>\n
     Such Officer cannot declare any transfer made by <\/p>\n
     the assessee in favour of third party  as void.\n<\/p>\n
     If the department finds that the property of the <\/p>\n
     assessee is transferred  by him to a third party <\/p>\n
     with   the   intention   to   defraud   the   Revenue,   it <\/p>\n
     will   have   to   file   a   suit   under   Rule   11(6)   to <\/p>\n
     have   the   transfer   declared   void   under   Section <\/p>\n
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\n                                   51<\/span><\/p>\n
     281.   The   Court   then   proceeded   to   observe   as <\/p>\n
     under:-\n<\/p>\n
          “12. In the light of this discussion about <\/p>\n
          the   provisions   of   Order   21   Rule   58   to   63, <\/p>\n
          if   we   examine   Rule   11(4)   of   the   Second <\/p>\n
          Schedule to the Income Tax Act, it is clear <\/p>\n
          that   the   Tax   Recovery   Officer   is   required <\/p>\n
          to   examine     whether   the   possession   of   the <\/p>\n
          third   party   is   of   a   claimant   in   his   own <\/p>\n
          right or   in trust for  the assessee or on <\/p>\n
          account of the assessee.   If he comes to a <\/p>\n
          conclusion   that   the   transferee   is   in <\/p>\n
          possession in his or her own right, he will <\/p>\n
          have   to   raise   the   attachment.   If   the <\/p>\n
          Department   desires   to   have   the   transaction <\/p>\n
          of   transfer   declared   void   under   Section <\/p>\n
          281,   the   Department   being   in   the   position <\/p>\n
          of a creditor, will have to file a suit for <\/p>\n
          a   declaration   that   the   transaction   of <\/p>\n
          transfer   is   void   under   Section   281   of   the <\/p>\n
          Income Tax Act.”\n<\/p><\/blockquote>\n
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\n                                  52<\/span><\/p>\n
     24. Thus   Rule   11   as   incorporated   in   the <\/p>\n
     provisions of the RDB Act specifically provides <\/p>\n
     for third party objections.   Sub-Rule (6) makes <\/p>\n
     it   specifically   clear   that   where   a   claim   or <\/p>\n
     objection has been   preferred the party against <\/p>\n
     whom an order is made  such party may institute <\/p>\n
     a suit in the Civil Court to establish the right <\/p>\n
     which he claims in the property in dispute, but <\/p>\n
     subject to the result of such suit, if any, the <\/p>\n
     order   of   the   Tax   Recovery   Officer,   shall   be <\/p>\n
     conclusive. For the Tax Recovery Officer we will <\/p>\n
     have   to   read     Recovery   Officer.     Assessee   in <\/p>\n
     terms of Section 29 shall be construed   as the <\/p>\n
     Defendant.  Rule 9 of the Second Schedule would <\/p>\n
     also indicate that dispute between the bank and <\/p>\n
     the debtor  the machinery would be under the RDB <\/p>\n
     Act and not by way of suit.  However, in respect <\/p>\n
     of objections of third parties who have a claim <\/p>\n
     it is the procedure  under Rule 11 to the extent <\/p>\n
     applicable which will have to be considered.\n<\/p>\n
     25. On behalf of the Defendants learned Counsel <\/p>\n
     referred to the judgment in N.K. Chauhan & Ors.\n<\/p>\n
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\n                                    53<\/span><\/p>\n
     vs.   State   of   Gujarat   &   Ors.,   (1977)   1   SCC   308 <\/p>\n
     where   the   Supreme   Court   was   considering   the <\/p>\n
     meaning   of   expression   “as   far   as   practicable”.\n<\/p>\n
     While   considering   the   said   expression   the <\/p>\n
     Supreme Court observed as under:-\n<\/p>\n
          “In   short   ‘as   far   as   practicable’   means, <\/p>\n
          not   interfering   with   the   ratio   which <\/p>\n
          fulfils the interest of administration, but <\/p>\n
          flexible provision clothing government with <\/p>\n
          powers to meet special situations where the <\/p>\n
          normal process of the government resolution <\/p>\n
          cannot   flow   smooth.     It   is   a   matter   of <\/p>\n
          accent   and   import   which   affords   the   final <\/p>\n
          test in the choice between the two parallel <\/p>\n
          interpretations.”\n<\/p><\/blockquote>\n
     The expression as far as possible has also been <\/p>\n
     considered by the learned Division Bench of this <\/p>\n
     Court in Keshrimal J. Shah (supra) in the very <\/p>\n
     context   of   this   Act.   This   Court   rightly   noted <\/p>\n
     that   the   provisions   do   not   get   themselves <\/p>\n
     incorporated   completely.   They   have   to   be   read <\/p>\n
     into   as   far   as   possible   and   subject   to   such <\/p>\n
     modification   as   the   context   as   well   as   object
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\n                                    54<\/span><\/p>\n
     and   purpose   of   the   Act   require.     Similarly,   a <\/p>\n
     Division Bench of the Andhra Pradesh High Court <\/p>\n
     in  P.   Mohanreddy   &   Ors.   vs.   Debts   Recovery <\/p>\n
     Appellate Tribunal, Mumbai & Ors. AIR<\/a> 2004 A.P.\n<\/p>\n
     94  had also occasion to consider the expression <\/p>\n
     “as far as possible  ” in the context of Section<\/p>\n
     26.     The   learned   Division   Bench   observed   that <\/p>\n
     the   language   employed   is   such   that   there   is <\/p>\n
     flexibility   and   it   is   not   mandatory   to   follow <\/p>\n
     the   rules   as   they   are.     Section     29   does   not <\/p>\n
     impose an obligation on the Recovery Officer to <\/p>\n
     meticulously follow the provisions of Second and <\/p>\n
     Third Schedules.\n<\/p>\n
     30. In   our   opinion   while   considering   the <\/p>\n
     expression “as far as possible”, the Court first <\/p>\n
     will have to examine the power conferred under <\/p>\n
     the   provisions.   Thereafter   in   exercise   of   the <\/p>\n
     powers   the   Court   will   have   to   examine   whether <\/p>\n
     the plain or literal language of the provisions <\/p>\n
     would be inconsistent with the provisions of the <\/p>\n
     Act   or   the   Rules   and   if   it   is   so   finds,   then
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\n                                    55<\/span><\/p>\n
     read   it   in   a   manner     which   will   not   make   the <\/p>\n
     Rule   inconsistent.     If   so   read   then   the <\/p>\n
     expression “as far as possible” can be correctly <\/p>\n
     understood.     As   an   illustration   in   the   Act <\/p>\n
     itself the expression assessee has been referred <\/p>\n
     to as the Defendant.   This gives an indication <\/p>\n
     of   the   intent   of   the   Legislature   as   to   how <\/p>\n
     Section 29 has to be read.  It cannot mean that <\/p>\n
     Section 29 and second and third schedule and the <\/p>\n
     Rules   referred   to   are   to   be   held     otiose.     A <\/p>\n
     proper way of reading the said words would be to <\/p>\n
     give an effective meaning to the language of the <\/p>\n
     Second   and   Third   Schedule   of   the   Rules   which <\/p>\n
     prescribe   a   procedure   for   claims   by   third <\/p>\n
     parties   and   which   expressly   under   Rule   11   (6) <\/p>\n
     provides   that   when   a     claim   or   objection <\/p>\n
     preferred has been rejected a party against whom <\/p>\n
     an   order   is   made   may   institute   a   suit   in   the <\/p>\n
     Civil   Court   to   establish   his   right   in   the <\/p>\n
     property in dispute.   This must be read in the <\/p>\n
     context of the observations by the Supreme Court <\/p>\n
     in G.V. Ranade (supra) that issues pertaining to <\/p>\n
     title   cannot   be   gone   into   by   the   Recovery <\/p>\n
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\n                                    56<\/span><\/p>\n
     Officer while considering the third party claim <\/p>\n
     in proceedings in execution.\n<\/p>\n
     27. Having so considered it is clear that under <\/p>\n
     Section   17   of   the   RDB   Act   the   D.R.T.   has <\/p>\n
     exclusive jurisdiction to decide the application <\/p>\n
     from   banks   and   financial   institutions   for <\/p>\n
     recovery of debts as defined under Section 2(g) <\/p>\n
     of   the   Act.   Section   18   makes   it   clear   that   in <\/p>\n
     respect   of   such   exclusive   jurisdiction <\/p>\n
     pertaining to debts conferred by Section 17 no <\/p>\n
     Court or Authority shall have jurisdiction. This <\/p>\n
     obviously   would   not   include   a   third   party <\/p>\n
     claimant, who is not liable for any debt.   The <\/p>\n
     judgment   in   Dr.   Anil   Nandkishor   Tibrewala <\/p>\n
     (supra)   which   considered   Section   19(25)   of   the <\/p>\n
     RDB   Act   will   have   to   be   considered   in   the <\/p>\n
     context that where an order is passed which has <\/p>\n
     the   effect   of   amounting   to   an   abuse   of   the <\/p>\n
     process of the Court, then it may be open to the <\/p>\n
     Tribunal to examine the issue to the extent that <\/p>\n
     it can consider.\n<\/p>\n
     28.         Chapter     V     deals     and   specifies   the <\/p>\n
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\n                                  57<\/span><\/p>\n
     procedure in so far as recovery  of debt already <\/p>\n
     determined by the Tribunal. Section 25 provides <\/p>\n
     the mode of recovery of debts. Section 26 makes <\/p>\n
     it clear that the defendant cannot dispute the <\/p>\n
     correctness   of   the   amounts   specified   in   the <\/p>\n
     certificate   and   any   other   objection   to   the <\/p>\n
     certificate.   .     Section   27   amongst   others <\/p>\n
     confers   a     power   to   correct   a   clerical   or <\/p>\n
     arithmetical   mistake   in   the   Certificate     by <\/p>\n
     withdrawing   the   certificate.     Section   27   is   a <\/p>\n
     power   of   granting   stay.     Section   28   provides <\/p>\n
     other modes of recovery other than that provided <\/p>\n
     under Section 25.   Sections 25, 26, 27 and 28, <\/p>\n
     therefore,   deal     exclusively   with   the   recovery <\/p>\n
     of   amounts   under   a   certificate   issued   under <\/p>\n
     Section 19 and mode of recovery if the amounts <\/p>\n
     set out in the certificate.   Section 29 in the <\/p>\n
     context of recovery of the amounts due under the <\/p>\n
     certificate makes   applicable the provisions of <\/p>\n
     Income Tax Act and certificate proceedings Rules <\/p>\n
     as set out.\n<\/p>\n
     29.    Section 30 as now substituted by Act 1 of <\/p>\n
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\n                                   58<\/span><\/p>\n
     2000   begins with a non-obstante     clause.   A <\/p>\n
     person   aggrieved   by   an   order   of   the   Recovery <\/p>\n
     Officer may within thirty days from the date on <\/p>\n
     which   a   copy   of   the   order   is   issued   to   him, <\/p>\n
     prefer   an   appeal   to   the   Tribunal.   Under     Sub-\n<\/p>\n
     section (2) of Section 30 a   power is given to <\/p>\n
     set aside or modify an order made under Sections <\/p>\n
     25 to 28.  Section 30 cojointly  with Section 29 <\/p>\n
     would   mean   that   irrespective   of   the   Appellate <\/p>\n
     remedy   provided   in   Part   VI   of   IInd   Schedule <\/p>\n
     (Rule 86) to the I.T. Act an Appeal would lie to <\/p>\n
     the Tribunal in respect of orders made under the <\/p>\n
     Second Schedule to the I.T. Act.  We may clarify <\/p>\n
     that considering the language of Rule 11(6) an <\/p>\n
     appeal would not lie under Rule 86 of the Second <\/p>\n
     Schedule.   Therefore, under Section 30 even if <\/p>\n
     an   appeal   as   provided   under   Rule   86   is   not <\/p>\n
     available   because   of   Rule   11(6)     making   the <\/p>\n
     order   of   the   Recovery   Officer     conclusive, <\/p>\n
     nevertheless   Section   30   of   the   Act   provides   a <\/p>\n
     remedy by way of Appeal against the order passed <\/p>\n
     under the IInd Schedule.   We may clarify   here <\/p>\n
     that Section 20 is a provision for Appeal from <\/p>\n
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\n                                   59<\/span><\/p>\n
     an order of the Tribunal, when Section 30 is a <\/p>\n
     provision   for   appeal   against   the   order   of   the <\/p>\n
     Recovery Officer.\n<\/p>\n
     29.  If the Act itself provides a remedy   is it <\/p>\n
     open to a Court by a process of interpretation <\/p>\n
     to deny to a party that remedy which is a remedy <\/p>\n
     under   the   Act   itself.   Under   Rule   9   of   the <\/p>\n
     Schedule   II     to   the   Income   Tax   every   question <\/p>\n
     arising   between   the   Recovery   Officer   and   the <\/p>\n
     defaulter as set out has to be determined by the <\/p>\n
     Recovery   Officer   and   not   by   a   suit.     In   other <\/p>\n
     words   the   jurisdiction   of   the   Civil   Court   in <\/p>\n
     such   matter   is   barred.     Under   Rule   11   when   a <\/p>\n
     claim or objection is preferred by a third party <\/p>\n
     to the   attachment or sale of property , under <\/p>\n
     Rule 11(6) the party against   whom an order is <\/p>\n
     passed   may       institute   a   Civil   Suit.   This, <\/p>\n
     therefore, is a remedy    expressly provided by <\/p>\n
     the Act itself.   Thus in matters pertaining to <\/p>\n
     execution   of   certificate,   apart   from   the   modes <\/p>\n
     available under Sections 25 to     28, by virtue <\/p>\n
     of     Section   29,     which   by   incorporation     has <\/p>\n
     made   the   provision   of   the   Second   and   Third <\/p>\n
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\n                                  60<\/span><\/p>\n
     Schedule   to   the   Income   Tax   Act   and   the  Income <\/p>\n
     Tax   (Certificate   Proceedings)   Rules,   1962   as   a <\/p>\n
     part of Chapter V of the R.D.B. Act that mode is <\/p>\n
     also available.  Thus the R.D.B. Act itself in a <\/p>\n
     matter   pertaining   to   execution   or     enforcement <\/p>\n
     of   a   certificate     and   objection     claim   by   a <\/p>\n
     third party to attachment or sale has provided <\/p>\n
     the remedy of suit.  Thus it would be clear that <\/p>\n
     in   such   matters   the   jurisdiction   of   the   Civil <\/p>\n
     Court is not barred.\n<\/p>\n
     30. In our opinion, therefore, on a construction <\/p>\n
     of the various contentions raised and even after <\/p>\n
     considering the expression “as far as possible”\n<\/p>\n
     it is not possible to hold that the jurisdiction <\/p>\n
     of   the   Civil   Court   is   totally   ousted,     in <\/p>\n
     matters   pertaining   to   third   party   claims <\/p>\n
     regarding   attachment   or   sale   of   property.\n<\/p>\n
     execution.   Thus it will be open to a party to <\/p>\n
     take   recourse   to   the   remedy   available   under <\/p>\n
     Section 30 if it has made its claim  before the <\/p>\n
     Recovery Officer and that is rejected.  This is <\/p>\n
     because the title to the property as explained
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\n                                  61<\/span><\/p>\n
     by   the   Supreme   Court   in   Gangadhar   V.   Ranade <\/p>\n
     (supra)     cannot   be   decided   by   the   Recovery <\/p>\n
     Officer   under   the   Second   Schedule   of   the   I.T.\n<\/p>\n
     Act   and   that   has   been   left   open     for <\/p>\n
     consideration by a Civil Court.  The judgment in <\/p>\n
     Allahabad Bank (supra) in para.25, which we have <\/p>\n
     referred   to   earlier,   has   also   made   this <\/p>\n
     expressly   clear   when   it   uses   the   expression <\/p>\n
     “except as provided under the Act”.\n<\/p>\n
     31. It will, therefore,  not be possible to hold <\/p>\n
     that inspite of the specific provision of Rule <\/p>\n
     11(6) of the Second Schedule to the Income Tax <\/p>\n
     Act,     the   jurisdiction   of   the   Civil   Court   is <\/p>\n
     expressly   or   impliedly   barred.     That   would   be <\/p>\n
     rendering   the   Rule   11   otiose.     Such   a <\/p>\n
     construction   is   not   possible.   When   the   Act <\/p>\n
     itself has provided a remedy, that remedy cannot <\/p>\n
     be   defeated   by   an   interpretative   process   that <\/p>\n
     renders the statutory  remedy otiose.\n<\/p>\n
     32. In our opinion considering the discussion in <\/p>\n
     none   of   the     three   Judgments   which   have   been <\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 15:14:11 :::<\/span>
\n                                   62<\/span><\/p>\n
     considered, this Court has taken the view that <\/p>\n
     the jurisdiction of the Civil Court is impliedly <\/p>\n
     or   expressly   barred.     The   judgments   of   the <\/p>\n
     Courts   are   not   to   be   interpreted   like   a <\/p>\n
     statute.     The   ratio   has   to   be   culled   out   from <\/p>\n
     the facts and   what was in issue.   What has to <\/p>\n
     be considered is the ratio of the judgment. It <\/p>\n
     is,   therefore,   not   possible   to   accept   the <\/p>\n
     contention   that   on   the   consideration   of   the <\/p>\n
     judgments this Court has taken a view that the <\/p>\n
     jurisdiction   of   the   Court   is   expressly   or <\/p>\n
     impliedly barred.\n<\/p>\n
     33.     In   that   context   the   question   referred   to <\/p>\n
     for our consideration may now be answered.\n<\/p>\n
          (i) Question No.1 would have to be answered <\/p>\n
          in   the   affirmative.     The   remedy   of   an <\/p>\n
          Appeal provided under Section 30 would not <\/p>\n
          oust the jurisdiction of the Civil Court in <\/p>\n
          entertaining a Civil Suit as provided under <\/p>\n
          Rule   11   (6)   of   the   Second   Schedule   to   the <\/p>\n
          I.T. Act.\n<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 15:14:11 :::<\/span>
\n                             63<\/span><\/p>\n
     (ii) Question No.2 will have to be answered <\/p>\n
     with   a   clarification.   Section   29 <\/p>\n
     incorporates   Schedule   II   of   I.T.   Act   into <\/p>\n
     the R.D.B. Act and provides another mode of <\/p>\n
     recovery in terms of the   certificate from <\/p>\n
     the   defaulter   (judgment   debtor).   However, <\/p>\n
     third parties who have a right or interest <\/p>\n
     to   the   property   sought   to   be   attached   or <\/p>\n
     sold can considering Rule 11 of the Second <\/p>\n
     Schedule   to   the   Income   Tax   Act   file   their <\/p>\n
     objections.     With   the   above   clarification <\/p>\n
     the   question   is   answered   in   the <\/p>\n
     affirmative.\n<\/p>\n
     (iii)   In   so   far   as   Question   No.3     is <\/p>\n
     concerned,   the   normal     remedy   of   such   a <\/p>\n
     party could be to invoke the provisions of <\/p>\n
     Rule   11   of   the   Second   Schedule   to   the <\/p>\n
     I.T.Act.   It is also open to a third party <\/p>\n
     aggrieved by a declaration in respect of a <\/p>\n
     property     in   which   such   party   claims   a <\/p>\n
     right   or   interest   to   apply   under   Section <\/p>\n
     19(25), if that provision is attracted.\n<\/p>\n
                                   ::: Downloaded on – 09\/06\/2013 15:14:11 :::<\/span>
\n                              64<\/span><\/p>\n
         (iv)     The   questions   as   referred     are <\/p>\n
         accordingly answered.\n<\/p>\n
     (D.G. KARNIK, J.)        (FERDINO I.REBELLO, J.)<\/p>\n
                                   ::: Downloaded on – 09\/06\/2013 15:14:11 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Malabar Hill vs Union Bank Of India on 16 October, 2009 Bench: F.I. Rebello, D.G. Karnik 1 Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2332 OF 2007 IN SUIT NO.1627 OF 2007 WITH NOTICE OF MOTION NO.2983 OF 2007 IN SUIT NO.1627 OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-50880","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMalabar Hill vs Union Bank Of India on 16 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/malabar-hill-vs-union-bank-of-india-on-16-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Malabar Hill vs Union Bank Of India on 16 October, 2009 - 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