G.P.MATHUR, J. - (1.) THIS petition under Article 226 of the Constitution has been filed praying that a writ of mandamusbe issued restraining the Debt Recovery Tribunal, Allahabad from taking any action for recovery of Rs. 93,88,386 with interest from the petitioner in any manner whatsoever including by coercive measures in pursuance of the orders dated 15 -10 -1999, 19 -6 -2001 and 6 -9 -2001. A further prayer has been made that Rules 48 to 51 of the Income -Tax Rules be declared as nulland void.
(2.) THE petitioners were granted Packing Credit Limit of Rs. 25 lacs and Foreign Bill Purchase Limit of the same amount by Union Bank of India. Dayal Bagh Marg Agra (respondent No. 4) and an agreement was executed in that regard on 27 -5 -1996. In order to ensure repayment of the loan, the petitioners created an equitable mortgage of three houses situated in Mathura City in favour of the respondent -Bank. Subsequently the petitioners were sanctioned additional Packing Credit Limit of Rs. 19 lacs and additional Foreign Bill Purchase Limit of Rs. 25 lacs. It appears that the petitioners did not repay the amount to the Bank (respondent No. 4) and consequently it filed Original Application No. 3 of 1999 against the petitioners for the recovery of the amount before the Debt Recovery Tribunal, Jabalpur. They did not file their written statement and consequently the Tribunal proceeded ex -parteagainst them. Ultimately by its order dated 15 - 10 -1999 decreed the claim of the Bank for a sum of Rs. 93,88,386 together with interest at the rate of 20% per annum with quarterly rests with effect from 6 -1 -1999 till the realisation of the outstanding dues. The order further provided that the Bank may press into service its independent right for the sale of the hypothecated property without waiting for any order from the Tribunal and the defendants were debarred from transferring, alienating or otherwise dealing with or disposing of the hypothecated/mortgaged properties without prior permission from the Tribunal. The petitioners challenged the aforesaid order of the Tribunal by filing a writ petition in the Jabalpur High Court but the same was dismissed as withdrawn by the order dated 30 -7 - 2001 with liberty to file an appeal. The petitioners claim to have filed an appeal before the Debt Recovery Appellate Tribunal, Allahabad on 7 -9 -2001 which has not yet been formally registered. The Bank applied for issue of the recovery certificate and the Recovery Officer issued a certificate for attachment of the three houses which were mortgaged with the Bank on 19 -6 -2001. Thereafter, an order has been passed on 6 -9 -2001 sanctioning sale of the properties and issuance of sale proclamation. By the same order, the Recovery Officer has fixed reserved price for the three houses which had been mortgaged and thereafter, has issued certain procedural direction regarding affixation of copy of proclamation order. The sale proclamation has been published in some local newspapers and has also been announced by beat of drums on or near the property. The grievance of the petitioners is that the Recovery Officer, who is taking steps to recover the decretal amount, has not complied with the requirement of law and as such proceedings initiated by him and consequential orders passed in that regard are illegal. It is not in dispute that a decree for Rs. 93,88,386 together with interest at the rate of 20% per annum with quarterly rests with effect from 6 -1 -1999 till the realisation of the outstanding dues has been passed against the defendants (writ petitioners) by the Debtt Recovery Tribunal, Jabalpur by the judgment and order dated 15 -10 -1999. It is averred in para 14 of the writ petition that the petitioners have filed an appeal against the judgment and decree of the Tribunal before the Debt Recovery Appellate Tribunal, Allahabad on 7 -9 -2001 and have also moved an application for staying the execution of the decree but the appeal has not yet been formally registered. There is no averment in the writ petition that the petitioners have deposited seventy - five per cent of the amount of debt as determined by the Tribunal and in view of Section 21 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as RDB Act), the appeal cannot be entertained by the Appellate Tribunal and this must be the reason for nor registering the appeal. Thus there is no impediment in the way of the Bank to executed the decree and recover the amount. The Bank has applied for initiating action for sale of the mortgaged properties and in that connection various orders have been passed by the Recovery Officer which have been impugned in the writ petition. Sub - section (1) of Section 30 of the Act provides that notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made under the Act, may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal. Therefore, the petitioners have a right to prefer and appeal against the impugned orders before the Tribunal and in view of availability of this alternative remedy of appeal, the present writ petition under Article 226 of the Constitution is not maintainable and the same is liable to be dismissed on this ground alone.
(3.) SRI Ravi Kant, learned Senior Counsel has submitted that the petitioners have also sought declaration that the Rules 48 to 51 of the Income -Tax Rules, which lay down procedures for attachment and sale, are unconstitutional and as this relief cannot be granted by the Tribunal, the writ petition cannot be dismissed on the ground of alternative remedy and the same is maintainable. The attack to the validity of the aforesaid rules may, therefore, be briefly examined. Sub -section (5) of Section 28 of the RDB Act provides that the Recovery Officer may recover any amount of debt due from the defendant by distraint and sale of his movable property in the manner laid down in the Third Schedule to the Income -Tax Act. Section 29 of the RDB Act provides that the provisions of Second and Third Schedules to the Income -Tax Act, 1961 and the Income -Tax (Certificate Proceedings) Rules, 1962 as in force from time to time shall, as far as possible, apply with necessary modifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of to the Income -Tax Act. The proviso to the section lays down that any reference under the said provisions and the rules to the ”assesee”shall be construed as a reference to the defendant under this Act, Rules 53 and 54 of the Income -Tax Rules read as follows : 53. A proclamation of sale of immovable property shall be drawn up after notice to the defaulter, and shall state the time and place of sale, and shall specify, as fairly and accurately as possible : (a) the property to be sold; (b) the revenue, if any, assessed upon the property or any part thereof; (c) the amount for the recovery of which the sale is ordered; (cc) the reserve price, if any, below which the property may not be sold; and (d) any other thing which the Tax Recovery Officer considers it material for a purchaser to know, in order to judge the nature and value of the property. 54.(1) Every proclamation for the sale of immovable property shall be made at some place on or near such property by beat of drum or other customary mode, and copy of the proclamation shall be affixed on a conspicuous part of the property and also upon a conspicuous part of the office of the Tax Recovery Officer. (2) Where the Tax Recovery Officer so directs, such proclamation shall also be published in the Official Gazette or in a local newspaper, or in both; and the cost of such publication shall be deemed to be costs of the sale. (3) Where the property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the Tax Recovery Officer, otherwise be given. ;