D K ABDUL KHADER Vs. UNION OF INDIA

JUDGEMENT

(1.) BY these petitions, the petitioners have sought for grant of following reliefs in their favour, in the circumstances of the case. The reliefs read as under :-

(2.) THE facts of the case in the nut-shell are that, the respondent No. 3-Bank had obtained a decree namely decree dated 20-4-1993 passed in Original Suit No. 36/90 by the Principal Civil Judge, Mangalore, Dakshina Kannada, for a sum of Rs. 13, 25,008-54 ps. with interest at the rate of 18. 5% p. a. The respondent-Bank moved an application namely application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 i. e. , Act No. 51/1993 before the Debt Recovery Tribunal at Bangalore impleaded herin as respondent No. 4. This application was moved on 14-10-1997. According to the petitioners' case, under the provisions of Section 3/4 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 which came into effect on 24-6-1993, the Debt Recovery Tribunal of the States of Karnataka and Andhra Pradesh was established at Bangalore vide notification No. F. No. 19 (1473) dated 30-11-1994. On application being moved under Section 19 before the Tribunal, the Tribunal has been pleased to issue notice to the petitioner and thereafter had been pleased to pass the order allowing the application and directed issuance of recovery certificate as per terms of the judgment and decree dated 20-4-1993 passed in O. S. No. 36/90. That according to the petitioners, the impugned order was passed against the petitioners without petitioners' being given any opportunity to controvert the case set up by the applicant-Bank i. e. , respondent No. 3. The petitioners have filed these petitions challenging the vires of the Recovery of Debts Dues to Bank and Financial Institutions Act, 1993, the Rules framed thereunder as well as establishment of the Debt Recovery Tribunal for the States of Karnataka and Andhra Pradesh at Bangalore. No doubt, the petitioner has also challenged the order impugned namely order dated 29-11-1999 passed by the Tribunal on the ground that the Debt Recovery Tribunal has not given any opportunity to the petitioners either lead the evidence or to produce the documents. The petitioners have asserted that the petitioners should have been given an opportunity of hearing. It has also been alleged that the Act itself is ultra vires and so the order passed by the Debt Recovery Tribunal is without jurisdiction and the Debt Recovery Tribunal could not pass the order impugned. This plea has been taken in addition to the ground that the order was passed without giving an opportunity of hearing. If there would not have been any challenge to the vires and constitutionality of the Constitution of the Debt Recovery Tribunal and the provisions of the Act, then definitely the alternative relief of appeal to the Debt Recovery Appellate Tribunal would have been an alternative remedy available to the petitioners and this Court could and would have directed the petitioners to avail that remedy. But as the petition involves the question of vires of the Act itself and the Appellate Tribunal cannot be expected to go into the question of vires of the Act whereunder the Recovery Tribunal or the Appellate Tribunal is constituted, this Court has to hear the case on merits and to question of vires of the Act and constitutionality of Constitution or establishment of the Tribunal.

(3.) I have heard the learned counsel for the petitioner, Sri. B. G. Sreedharan assisted by Sri. Shivaram, learned counsel for the petitioners, on the question of, firstly, the vires of the Act No. 51 of 1993 (Recovery of Debts Due to Banks and Financial Institutions Act, 1993, its rules and provisions and of Constitution of the Debt Recovery Tribunal. I have also heard the learned Central Government Standing Counsel Sri N. Devadas who has represented before this Court the respondents 1, 2 and 4. I have also heard Sri. A. Mahabaleshwara Bhatt who has appeared on behalf of the respondent No. 3.