- (1.) PRAFULLA C. Pant, J. By means of this petition, moved under Ar ticle 226 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the impugned judgment and order dated 05-05-2005 (copy Annexure-14 to the writ petition), passed by District Magistrate, Champawat. A mandamus has also been sought not to interfere in petition er's exercise of property rights over the property purchased by him through the proceedings taken by Recovery Officer, Debt Recovery Tribunal-11, Kolkata.
(2.) HEARD learned counsel for the parties. Brief facts of the case are that an advertisement (Annexure-1 to the writ petition) was issued in the newspaper by Recovery Officer, attached to Debt Re covery Tribunal-11, Kolkata in T. R. C. No. 06 of 2002, Dena Bank Vs. M/s KHSL Industries Limited, for sale of industrial units, one of which is located at Tanakpur, District Champawat in Uttaranchal. The petitioner in pursuance to said advertisement, submitted his tender complying the condition of sale notice. The bid of the petitioner being highest at Rs. 9,00,000/- was accepted and sale confirmation order dated 09-08-2004 (copy Annexure-2) and sale certificate dated 09-08-2004 (copyannexure-3) in respect of the movables of debtor company (except for the item known as Bucket Elevator) was issued in favour of the petitioner. Also, the bid in respect of immovable prop erty submitted by the petitioner was frond highest. However, meanwhile one M/s Kristina Vinimoy, a company partici pating in the auction filed its objection on which the Debt Recovery Tribunal stayed the proceedings in the matter. But later, the said order was modified and the sale of immovable property in favour of the petitioner was also con firmed (confirmation order and certifi cate are Annexure-7 and 8 to the writ petition ). The receiver of the property was directed to handover the possession of the property to the petitioner and de livery of possession was made vide memorandum- dated 16-04-2005 (Annexure-11 to the writ petition) to the petitioner. Since then the petitioner is in actual physical possession of the prop erty purchased by him in the aforesaid sale. It appears that in the year 1999, company petition No. 77 of 1999, was filed by Dena Bank and another for winding up of the company under Sec tion 433,434 and 439 of the Company Act, 1956, before High Court judicature at Allahabad, wherein judgment and or der-dated 15-10-2003 (Annexure-i2 to the writ petition) was passed directing winding up of the company. In pursuance to said order, it appears that the Official Liquidator made request to the District Magistrate, Champawat to take charge of unit at Tanakpur. Conse quently, a representation of the Official Liquidator accompanied by local Tehsildar, demanded possession of the premises from the petitioner. When the petitioner disclosed to said persons that he is the owner of the property, the Dis trict Magistrate without issuing notice and affording any opportunity of hear-, ing to the petitioner unilaterally acted on the report of Tehsildar and passed the impugned order dated 05-05-2005 (Annexure-14 to the writ petition) re straining the petitioner from alienating or dissipating the movable and immovable property of the unit purchased by him. Aggrieved by said order, this writ peti tion has been filed relying on the princi ple of law laid down in Allahabad Bank Vs. Canara Bank and another, Judgment Today, 2000 (4) S. C. 411. In other words, it is alleged by the petitioner that the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993, has an overriding effect over the provisions of Company Act. Notices were issued to the re spondents where upon respondents No. 2 and 3 filed their joint counter affida vit in which it is stated that the im pugned order has been passed by Dis trict Magistrate in pursuance to order dated 15-10-2003 of the Allahabad High Court on being asked by the Official Liquidator. Defending the impugned or der, it is stated in their counter affidavit that the act on the part of the answer ing respondents was bonafide as the same was done to protect and preserve the subject matter of the property.
(3.) RESPONDENT No. 4, Official Liq uidator, filed his separate counter affi davit. In said affidavit also it is stated that the request was made to the Dis trict Magistrate, Champawat in pursu ance to the order passed on 15-10-2003 by Allahabad High Court in company petition No. 77 of 1999 and appointing Official Liquidator for taking up of the winding proceedings. In the counter af fidavit, filed on behalf of the Official Liquidator, it is further stated that un der Section 10 (1) (a) of Companies Act, --t956, the jurisdiction vests with the Allahabad High Court relating to the properties of the company under wind ing process as its registered office is situ ated in District Kanpur of State of U. P. Relying on said provision, it is stated by respondent No. 4 that the present writ petition is not maintainable and the petitioner should have approached High Court of Judicature at Allahabad, for seeking the remedy in the matter. Before further discussions, it is pertinent to mention here the provisions applicable to the present case. Section 34 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993, reads as under : "section 34- Act to have overriding effect (1) Save as provided under sub-sec tion (2), the provisions of this Act shall have effect notwith standing anything inconsistent therewith contained in any other law for the time being in force or in any instrument having ef fect by virtue of any law other than this Act. (2) The provisions of this Act or the rules made thereunder shall be in addition to and not in dero gation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State Financial Corporations Act, 1951 (63 of 1951), the Unit Trust of India Act, 1963 (52 of 1963), the In dustrial Reconstruction Bank of India Act, 1984 (62 of 1984), and the Sick Industrial Compa nies (Special Provisions) Act, 1985 and the Small Industries Development Bank of India Act, 1989. " The above provision clearly makes it evident that the provisions of Recov ery of Debts Due to Banks and Finan cial Institutions Act, 1993, have overrid ing effect over the provision of Compa nies Act, 1956. In Allahabad Bank Vs. Canara Bank 2000 (4) S. C. Pg. 906 : A. I. R. 2000 S. C. 1535, the Apex Court while interpreting the provisions of afore said two enactments have clearly held that the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993, have overriding effect in the matter. That being so, what the peti tioner has stated in the writ petition de serves to be accepted. The property pur chased by the petitioner in pursuance to the advertisement made by the Recov ery Officer in compliance of direction of Debt Recovery Tribunal-II, Kolkata in T. R. C. No. 06 of 2002, Dena Bank Vs. M/s KHSL Industries Limited could not have been interfered by the District Mag istrate, Champawat in pursuance of the request of the Official Liquidator, act ing in compliance of order dated 15-10-2003 in company petition No. 77 of 1999.;