P.K. Deb, J. -
(1.) THIS appeal has been preferred against the judgment/order dated 23rd July, 2004 passed by Mr. K.D. Khan, Presiding Officer, D.R.T., Jabalpur in appeal No. 9/2004, where by and where under the order dated 23rd March, 2004 passed by the Recovery Officer in T.A. Execution No. 49/ 2000 has been set aside by exercising jurisdiction under Section 30(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter shall be called as the RDDBFI Act). By the impugned order the learned Presiding Officer, D.R.T., Jabalpur as an Appellate Court has held that the order of the Recovery Officer setting aside the auction sale is illegal and inoperative in the eye of law.
The brief facts of the case are as follows:
The respondent -State Bank of India filed a suit in the District Court at Sahjahanpur for realizing of Rs. 12,59,5897 - against the appellant and others. On setting up of the Tribunal as per the RDDBFI Act the said civil suit was transferred to the Tribunal at Jabalpur and registered at T.A. No. 160/98. The said claim of the Bank was allowed by the judgment/order dated 20th September, 1999 and a certificate for the recovery of the amount decreed have been issued. It was held that if the defendants i.e. appellants fail to pay the outstanding dues within a period of one month, the respondent -Bank shall be entitled to realize the outstanding dues by sale of hypothecated and mortgaged property. On the basis of the certificate issued T.A. Execution case No. 49/2000 was registered before the Recovery Officer and in pursuance of the certificate granted, the immovable property of certificate debtor No. 5 Kamal Kishore Gupta was attached and the same was sold in auction. The said certificate -debtor filed various objections before the Recovery Officer regarding the auction sale. The main objection raised by the appellant -Kamal Kishore Gupta was with regard to the order passed by the Indore Bench of Madhya Pradesh High Court on 1st April, 2003 which was subsequently vacated vide order dated 6th December, 2003. In that way such objection regarding stay of the sale and confirmation thereof had no legal impediment. The main objection was with regard to delay in deposit of the balance amount by the auction purchaser. Admittedly, auction was held on 13th March, 2003 and on the date of auction itself 25% of the bid amount was deposited and the balance amount of the sale consideration was deposited on 31st March, 2003 and recorded by the Recovery Officer on 10th April, 2003. It was the contention of the respondents in the objection filed that Sub -rule (2) of Rule 57 of the Schedule II of the Income -tax 1961 was not complied with in its proper perspective inasmuch as the balance consideration amount with poundage fees have not been deposited within 15 days from the date of the sale. The Bankers cheque/balance sale consideration was prepared within 15 days by the auction purchaser on 2nd March, 2005, but the same was submitted before the Recovery Officer on 31st March, 2003 and in that way as there was delay in deposit of the balance sale consideration within 15 days and the same has caused the auction purchase null and void. Other objections filed from time -to -time by the certificate debtor have been rejected by the Recovery Officer vide impugned order dated 23rd March, 2004, but as delay was there in depositing the balance sale proceeds, the auction sale was set aside. Learned Recovery Officer had only considered regarding non -deposit in time without considering the provisions of Section 29 of the RDDBFI Act in its proper perspective, when the applicability of Rule 57 of the Income -tax Act was with some discretionary power such as "as far as practicable" and "with necessary modifications", The order of the Recovery Officer was set aside by the impugned order in appeal by the Presiding Officer, D.R.T., Jabalpur on the following grounds:
(a) That objection/application for setting aside the sale was filed very belatedly on 12th June, 2003, when as per Rule 61, such application can be filed only within one month from the date of sale and that no deposit have been made as required mandatorily under Rule 61(b) of Schedule II to the Income -tax Act.
(b) That the provisions of Rules 57(1) and 57(2) of the Schedule II of the Income -tax Act are not being made mandatory regarding their applicability under the RDDBFI Act as some discretionary power has been provided under Section 29 of the RDDBFI Act.
(2.) IN the present appeal, the contention of the C.D. appellant is that the appeal was not maintainable, when Bank was not an aggrieved party before the D.R.T., Jabalpur. The real aggrieved party auction purchaser has not come up for appeal. Secondly it is the contention of the appellant that when Rules 57(1) and 57(2) of Schedule II to the Income -tax Act is a mandatory one, then there was no scope for the learned Presiding Officer, D.R.T. to make it directory by applying the provisions of Section 29 of the RDDBFI Act and giving go -bye to the judgment of the Apex Court as reported in which is the law of the land. On the other hand it is the submission of the learned Counsel for the respondent -Bank that the impugned judgment is a well written judgment deciphering the provisions of law in their proper perspective and the judgment of the Apex Court as reported in AIR 1954 SC 343 and the subsequent decisions relying on that judgment were based only on the mandatory provisions of Rules 84 and 85 of the Order 21 of the C.P.C. which might be pari materia the same as that of Rules 57 and 58 of Schedule II to the Income -tax Act, but their applicability is definitely restricted to the wide power of discretion being granted to the Recovery Officer as per provisions of Section 29 of the RDDBFI Act.
(3.) ON hearing the learned Counsel for both the parties on the legal points raised, I have perused the records of the case in the light of such submission. Regarding the first point of maintainability of the application which is regarding setting aside of sale without making deposit as provided under Rule 61 of Schedule II to the Income -tax Act. With regard to Rule 61 itself for filing of application beyond the period of 30 days no answer could be given by the learned Counsel for the appellant, rather he had to admit that the application for setting aside of sale was filed on 12th June, 2003 which is much beyond the period of limitation of 30 days when the sale was conducted on 13th March, 2003. He had also admitted that no deposit has been made as mandatory required under Rule 61(b) of Schedule II to the Income -tax Act. In that way, such application for setting aside of sale is not maintainable and should be thrown out at the very outset when the mandatory provisions have not been complied with. The feeble submission has been made that when some discretion is there under Section 29 of the RDDBFI Act then such application filed belatedly without any deposit might be accepted by the Recovery Officer applying such discretion but such discretion even if applicable, then also reasons must be there as to why such discretion has been made, but in the present case the Recovery Officer has not at all considered regarding the maintainability of the application filed for setting aside of sale beyond the mandatory provisions. In that way, it has rightly been held in the impugned appellate order by the learned Presiding Officer, D.R.T., Jabalpur that the Recovery Officer erred in accepting the application for adjudication. In that way, practically the order of the Recovery Officer becomes nullity.;