A.P.Sahi, J. - (1.) SUPPLEMENTARY-affidavit filed today, is taken on record.
(2.) HEARD Sri Anil Tiwari, senior advocate, assisted by Sri Apoorva Tewari and Sri O. P. Misra, learned counsel for the petitioner and Sri Zafar Naiyer, learned Addl. Advocate General for the State, assisted by Sri Sachin Upadhyay, advocate. Notice has been served on Sri Ashok Mehta, learned counsel for the U. P. State Cement Corporation Limited through the official liquidator, notice has been accepted by Sri J. Nagar for respondent No. 6, notice on behalf of respondent No. 7 has been accepted by Sri P. N. Tripathi and notice on behalf of respondent No. 8 has been accepted by Sri Jayant Banerji. Having heard learned counsel for the parties, it is not necessary to issue notice to the other respondents as the learned counsels for the parties, after the submissions were advanced, have consented to the final disposal of the writ petition for being remanded back to the Tribunal for passing of the orders in the terms as provided hereinafter. In view of the aforesaid facts, the matter is being disposed of finally under the Rules of the Court without awaiting for any further affidavits.
(3.) UNDER the judgment of the Debt Recovery Tribunal dated 6.12.2006 certain amount was sought to be recovered from the respondents therein. This decree was further modified on an application vide order dated 7.7.2008 The State moved an application for recall of the judgment dated 6.12.2006 which had been allegedly amended by the order dated 7.7.2008. This application has been undisputedly rejected. The State of U. P. has now preferred an appeal against the said orders in which a Caveat was instituted by the petitioner, which has given rise to the present proceedings. An objection was filed on behalf of the petitioner to the effect that the appeal was incompetent in view of the provisions of Sections 20, 21 and 22 read with the Rules prescribed under 1994 Rules and heavily time barred, as such, there was no occasion for the Tribunal to have granted an interim relief to the respondent-State of U. P. on an incompetent appeal. Sri Anil Tiwari has invited the attention of the Court to the various provisions which provide for the presentation of an appeal, the manner in which the pre-deposit has to be made and the scrutiny of an appeal before it is entertained for orders having passed thereon. Sri Tiwari has urged that neither any proper court fee has been paid, which is evident from a perusal of the impugned order itself nor had the pre-deposit been made as per the provisions of Section 21 of the Act. He further contends that the matter was taken up hastily and the orders were passed as an interim measure without there being any competent appeal in the eyes of law. He contends that the procedure prescribed under the Act and the Rules have to be construed strictly as they relate to recovery proceedings and, therefore, there cannot be any presumption or deemed compliance of provisions. He contends that an application for waiving the conditions of pre-deposit had been moved by the State of U. P. but without any order having been passed thereon, the Tribunal has erred in proceeding to straightway grant an interim order. This is also evident from a perusal of the order impugned wherein dates have been fixed inviting objections on the application moved on behalf of the petitioner for dismissing the appeal. Sri Tiwari further contended that the question of limitation is also involved and, therefore, the pre-requisite for entertaining the appeal was the question of jurisdiction to be assumed by the Tribunal on the issue of limitation as well as on the issue of pre-deposit as contained under Section 21. He contends that the Tribunal has committed a patent error and not a latent error which could be cured later on. Sri Zafar Naiyer for the State, on the other hand, contends that as a matter of fact, there is no decree which could be executed against the State nor any amount was due and, therefore, the Tribunal was fully justified on the facts of the case to have granted interim relief. On the other issues, Sri Zafar Naiyer has urged that in view of the facts of this case, the Tribunal was fully justified in extending the benefit of interim relief to the State as in his humble opinion, there was no liability on the State at all.;