(1.) THE appellants are the defendants in O. S. No. 295 of 1995 on the file of Sub-Court, Udumalpet, which suit was filed by the respondent-bank for recovery of the amount due to the bank and the appellants remained ex parte. As against the ex parte decree, the appellants herein have filed I. A. No. 817 of 1996 to set aside the ex parte decree before the Sub-Court, Udumalpet. During the pendency of the said application, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, came to be passed. Proceedings were taken before the DRT, Chennai, for the issuance of recovery certificate on the basis of the ex parte decree. Before the DRT, Chennai, the appellants represented the matter and also apprised about the pendency of the application I. A. No. 817 of 1996, and requested to set aside the ex parte decree, but, the DRT took a view that the decree passed by the civil court, cannot be set aside by the DRT and it could be done only by the civil court. By holding so, the DRT, Chennai, issued a recovery certificate. Aggrieved by the order of the DRT dated January 5, 2000, the appellants preferred CRP No. 943 of 2000, under Article 227 of the Constitution of India before the High Court, Madras, and the High Court by its order dated December 3, 2001, has held that the DRT itself is competent to decide the suit or any proceedings inclusive of any application and if any person is aggrieved by the orders passed by the DRT, he may prefer appeal to the Appellate Tribunal under Section 20 of the Act. By holding so, the High Court returned the papers to the appellants to avail of the alternative remedy, which is available under the Recovery of Debts Due to Banks and Financial Institutions Act, to prefer an appeal and two weeks time was granted for presentation of the papers before the proper forum. As the DRAT was not functional at that time for want of Chairperson in office, the appellants were constrained to approach the High Court once again and filed writ petitions in W. P. No. 20787 of 2001 and W. P. No. 24497 of 2001, to avert the auction sale of the mortgaged property and the W. M. P. No. 30693 of 2001 in W. P. No. 20787 of 2001, was dismissed on November 9, 2001.
(2.) On the orders passed in W. M. P. No. 30693 of 2001 in W. P. No. 20787 of 2001, dated November 9, 2001, the appellant preferred Writ Appeal No. 2826 of 2001. That appeal was taken along with W. P. No. 20787 of 2001 and W. P. No. 24497 of 2001, and the Division Bench of the High Court at Madras, passed the following order on January 24, 2005 :
"Heard learned counsel for the parties. As against the impugned order in W. P. No. 24497 of 2001, effectively, there is a right of appeal before the Debt Recovery Appellate Tribunal. There was some controversy as to whether there was a judge in that Appellate Tribunal at the relevant time and it is for this reason that the said writ petition was filed and entertained. However, there is no controversy now that at present there is a judge in that Appellate Tribunal and hence now there is no dispute that the petitioners can approach the Debt Recovery Appellate Tribunal. Hence, W. P. No. 24497 of 2001 is dismissed on the ground of alternative remedy. However, if the appeal is filed within two weeks from today, the same will be decided on merits very expeditiously thereafter. The parties can take all points, which they wish to take, before the Appellate Tribunal". Based on the above said orders, the appellants have preferred this appeal, on January 31, 2005, within the time.
Heard the learned advocate for the appellants and the respondent-bank, and the auction purchaser.
(3.) THE point for consideration is whether the appeal filed by the appellant is maintainable and whether it is in time ?;