- (1.) BOTH the aforementioned writ petitions are being decided by this common order as in both of them identical questions of facts and law are involved. S. B. Civil Writ Petition No. 4130/2001
(2.) THIS writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner Company on 18. 10. 2001 against the respondents with the prayer that by an appropriate writ, order or directions, the impugned order dated 12. 9. 2001 (Annex. 2) passed by the learned Judge, Debt Recovery Tribunal, Rajasthan, Jaipur (respondent No. 2) be quashed and set aside and the application filed by the petitioner-Company for staying the proceedings before the learned Judge, Debt Recovery Tribunal, Jaipur in Case No. 106/2001 be accepted. It arises in the following circumstances: The petitioner is a Company under the Companies Act, 1956 (hereinafter referred to as "the Act of 1956" ). The petitioner- Company because of various reasons was declared as a Sick Industrial Establishment under the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the Act of 1985" ). The petitioner-Company stopped its manufacturing operations from September, 1997. It was submitted by the petitioner-Company that the matter was taken to the Board of Industrial & Financial Reconstruction, New Delhi. However, no package of rehabilitation could be finalised and therefore, the Board recommended liquidation of the company and the matter was referred to the Hon'ble Company Judge of this Court for winding up proceedings under the Act of 1956. The case was registered as Company Petition No. 8/2000. It was further submitted by the petitioner Company that the respondent No. 1 the Bank of Rajasthan Limited is one of the creditors and during the pendency of the liquidation proceedings, the respondent No. 1 Bank has filed as application before the Debt Recovery Tribunal, Rajasthan, Jaipur (respondent No. 2) and that application was registered as case No. 106/2001. During the pendency of the above proceedings before the respondent No. 2 Debt Recovery Tribunal, the petitioner filed an application for staying the proceedings pending before the Debt Recovery Tribunal on the ground of pendency of liquidation proceedings before this Court and the copy of that application filed by the petitioner-Company before the Debt Recovery Tribunal, Rajasthan, Jaipur is marked as Annex. 1. The learned Judge, Debt Recovery Tribunal, Jaipur through his impugned order dated 12. 9. 2001 (Annex. 2) rejected the said application of the petitioner-Company holding inter-alia that in view of the judgment of the Hon'ble Supreme Court in Allahabad Bank vs. Canara Bank and Anr. (1), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as "the Act of 1993") gets precedence over the Act of 1956 by virtue of Section 34 of the Act of 1993 and further, Section 442 of the Act of 1956 would not be applicable in this case. Aggrieved from the said order dated 12. 9. 2001 (annex. 2) passed by the learned Judge, Debt Recovery Tribunal, Jaipur, the petitioner-Company has preferred this writ petition. In this writ petition, the following two submissions have been raised by the learned counsel appearing for the petitioner- Company:- (1) That the learned Judge, Dept. Recovery Tribunal, Jaipur has erred in placing reliance on the judgment of the Hon'ble Supreme Court in the case of Allahabad Bank (supra) as the law laid down in that case was not applicable to the present case and further, in view of Sec. 18 of the Act of 1993, jurisdiction of this court under Article 226 and 227 of the Constitution of India has been saved and thus, this Court has ample power to pass appropriate order. (2) That part from this, the provision of Sec. 20 of the act of 1993 which provide for appeal to the appellate tribunal would be applicable only when the order made by the Tribunal under the Act of 1993 is final in nature and since the impugned order dated 12. 9. 2001 (Annex. 2) passed by the learned Judge, Debt Recovery Tribunal, Jaipur is not a final order, therefore, provisions of Sec. 20 of the Act of 1993 would not be applicable to the present case and the writ petition should be held to be maintainable. On the other hand, the learned counsel appearing for the respondent No. 1 Bank has raised preliminary objection about the maintainability of the writ petition contending that the impugned order dated 12. 9. 2001 (Annex. 2) passed by the learned Judge, Debt Recovery Tribunal, Jaipur is appealable under Sec. 20 of the Act of 1993 and when an alternative remedy by way of appeal is available to the petitioner-Company, the present writ petition is not at all maintainable and the same deserves to be dismissed, as not maintainable. I have heard the learned counsel appearing for the petitioner-Company and the learned counsel appearing for the respondent and gone through the materials available on record. Preliminary Objection about maintainability of the writ Petition.
(3.) THE learned counsel appearing for the respondent No. 1 Bank has submitted that this writ petition is not maintainable as appeal against the impugned order Annex. 2 dated 12. 9. 2001 passed by the learned Judge, Debt Recovery Tribunal lies before the Appellate Tribunal under section 20 of the Act of 1993. On the contrary, it was submitted by the learned counsel appearing for the petitioner-Company that an appeal under Sec. 20 of the Act of 1993 would lie before the Appellate tribunal only when the order passed by the Tribunal is final in nature and since the impugned order Annex. 2 dated 12. 9. 2001 passed by the learned Judge, Debt Recovery Tribunal is not a final order, therefore, provisions of Section 20 of the Act of 1993 would not be applicable to the present case and the writ petition should be held to be maintainable. Before proceeding further, it may be stated here that there is no dispute on the point that in view of Sec. 18 of the Act of 1993, the exercise of jurisdiction by the Civil Court in relation to matters specified under the Act of 1993, is excluded, but the exercise of jurisdiction by the High Court under Articles 226 and 227 of the Constitution of India has been saved. ;