Dismissed

Aluminium Industries Assam Pvt. Ltd. and Ors. v. Asset Reconstruction Company India Ltd.

DRAT27 Sept 2022

Case brief

AI extract

What is this about?

In a money-appropriation, the Appellate Tribunal dismissed the appellant's petition seeking transfer of recovery proceedings from DRT Kolkata to DRT Guwahati. The court held that the appellant had previously raised and allowed the jurisdictional issue to attain finality without challenge, rendering the current transfer application an impermissible attempt to delay recovery.

What did the court decide?

Transfer of recovery proceeding from DRT Kolkata to DRT Guwahati was denied.

Aluminium Industries Assam Pvt. Ltd. and Ors. versus Asset… — Banking and Recovery | DRAT (2022)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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M.A. Dy. No.152 of 2022

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(Arising out of R.P. No. 10 of 2015 – DRT-1, Kolkata)

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THE HON’BLE JUSTICE SHRI ANIL KUMAR SRIVASTAVA, CHAIRPERSON

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27.09.2022

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	1. M/s. Aluminium Industries Assam Pvt.
	Ltd., having its office at Makum Road, Tinsukia, Assam – 786125 and also at 23A, N.S. Road, Kolkata – 700001. 2. Lalita Agarwal residing at Flat No. 14A, 10, Lord Sinha Road, Kolkata – 700071. … Appellants Vs. 1. Assets Reconstruction Company India Ltd., a company incorporated under the Companies Act, 1956 registered as a Securitization Company and
	Reconstruction Company pursuant to Section 3 of the SRFACIE Act, and a Financial Institution u/s 2(h)(ia) of the RDDB&FI Act, 1993 and having its registered office at The Ruby, 1^stFloor, 29, Senapati Bapat Marg (West), Mumbai – 400028 and also having its legal and corporate office at Arms, A Retail Division of ARCIL at Chatterjee International, Room No.A-11, 8^thfloor, 13, Jawahar Lal Nehru Road, Kolkata – 700071.
	2. The Federal Bank Ltd. having its registered office at Post Box No. 103, Federation Towers, Aluva, Kerfala – 683101 and also its Branch Office at R.N. Mukherjee Road, Martin Burn Building, Kolkata – 700001. …..Respondents
For Appellant	: Mr. Pravat Seal, Learned Counsel Mr. K. Banerhjee, Learned Counsel Mr. J. Biswas, learned counsel.

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For Respondent : Ms. P. Dutta, learned counsel for Res. FI.

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JUDGEMENT

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Instant M.A. has been moved for transfer of the recovery proceeding being R.P. No. 10 of 2015 from DRT Kolkata to the DRT Guwahati and also to stay the execution proceeding with regard to the property situated at Tinsukia, Assam.

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As per pleadings, M.A. No. 02 of 2022 was filed by the appellant u/s 17(A)(2) of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as “Act”) which was dismissed by this Appellate Tribunal on 05.05.2022 wherein it was observed that as far as power to transfer a case from one DRT to another DRT is concerned it lies with the jurisdiction of DRAT u/s 17 Chapter A sub-section (2) of the Act, but no order was passed to transfer the case as there was no such prayer for transfer.

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Learned counsel for the appellant submits that R.P. proceeding was initiated against the property situated at Tinsukia, Assam which is beyond the territorial jurisdiction of DRT, Kolkata.

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An application u/s 19 of the Act being O.A. No. 539 of 2011 was filed by the respondent no.1 for recovery certificate of Rs.2,30,81,549/- along with interest at the rate of 16.25% per annum from 01.12.2011 till realization. The O.A. was allowed exparte issuing recovery certificate. Consequent thereto recovery proceeding being no. 10 of 2015 was initiated against the appellant. An application u/s 22(2)(g) of the Act along with an application u/s 5 of the Limitation Act was filed by the appellant on 29.07.2016 for setting aside the exparte judgement which was dismissed on 10.07.2020. An appeal Diary No. 11 of 2021 was filed on 08.01.2021 before the DRAT Kolkata which was also dismissed. A revision application was preferred under Article 227 of the Constitution of India before Hon’ble High Court which was also dismissed by the Hon’ble High Court.

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Learned counsel for the appellant submits that the secured asset is situated at Tinsukia in Assam State. According to Section 19(23) of the Act read with Section 29 of the Act learned DRT is empowered to transfer the decree where the property is situated, the decree should not be executed by the DRT-1, Kolkata. Despite objection, the Recovery Officer was proceeded with the matter although he has no territorial jurisdiction. Accordingly, a

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prayer being made to transfer the RP proceeding being no. 10 of 2015 to learned DRT Guwahati.

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In the affidavit in opposition filed by the respondent OP it has been stated that O.A. was filed within the territorial jurisdiction of the learned DRT-1, Kolkata as the transactions and agreements were executed within the city limit of Kolkata. Jurisdiction of recovery officer is limited to the certificate issued u/s 25 of the Act. It is further submitted that RP No. 10 of 2015 stands at the stage of recovery, in case, the proceeding is transferred entire recovery process initiated by the recovery officer would be frustrated. Learned counsel submits that recovery proceeding are in accordance with law and recovery officer has the jurisdiction to proceed with the matter.

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Heard learned counsel for the parties and perused records. 8. At the very outset it would be appropriate to observe that prior to filing this M.A. another M.A. being no. 02 of 2022 was filed by the appellant before this Appellate Tribunal seeking relief for injunction restraining respondent no.1 to deal with the property situated at Tinsukia in Assam arising out of execution proceeding being no. RP 10 of 2015 pending before the Recovery Officer, DRT-1, Kolkata. That M.A. No. 02 of 2022 was dismissed on 05.05.2022 wherein it was held that Section 30 of the Act provides for appeal against the order of Recovery Officer. If any order is passed by any authority in a judicial proceeding, there is option for filing an appeal provided by the Act, aggrieved party will be at liberty to exercise that option, but a judicial order cannot and should not be set aside or overturned in exercise of the administrative order. It was also held that DRAT has power to transfer from one Tribunal to another u/s 17(A)(2) of the Act, but no such order of transfer was passed in that matter. Learned counsel for the appellant has placed reliance on Para 7 of the order passed by this Appellate Tribunal in M.A. 02.2022 which reads as under :

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“So far as Section 17(A) Sub-section (2) is concerned, no doubt, power of transfer as case from one Tribunal to another is given

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to the Chairperson. General prayer is made in relief from to pass such order or orders as deemed fit and proper. It may not be proper to pass an order under Section 17(A)(2).” This paragraph is to be red along with paragraph 5 of the order wherein it

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was held that administrative power of general superintendence can in no way be extended in the judicial matter. Hence, it cannot be accepted that an opinion was expressed by DRAT, Kolkata in the order dated 05.05.2022 that although the case needs to be transferred, however, in absence of any prayer to that extent it has not been transferred.

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Learned counsel for the appellant has vehemently argued that the order passed by the DRT, Kolkata as well as Recovery Officer are without jurisdiction, hence, they are nullity. Accordingly, it is submitted that since neither DRT Kolkata nor the Recovery Officer have territorial jurisdiction to proceed with the matter, the recovery proceeding may be transferred to DRT, Guwahati.

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I do not find any force in the argument. Issue of jurisdiction is being challenged by the appellant by way of filing this transfer petition. Issue of jurisdiction was raised by the appellant before the Recovery Officer. In the order dated 11.12.2018 Recovery Officer has held that territorial jurisdiction of recovery officer is limited to the certificate issued by the learned Presiding Officer. Further, Recovery Officer has no authority to adjudicate territorial jurisdiction of the property as it has already been decided by the learned Presiding Officer. However, order dated 11.12.2018 passed by the Recovery Officer was not challenged by the appellant before any forum. It shows that this order has attained finality. Further, it is also to be noticed that O.A. proceedings were conducted exparte against the appellant. Exparte judgement was pronounced. Application for recall of the exparte judgement filed by the appellant was also dismissed by the learned DRT. Thereafter appeal was preferred which was also dismissed by this Appellate Tribunal. Revisional petition was preferred by the appellant before the Hon’ble High Court which was also dismissed. Hence, the exparte judgement pronounced

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in the O.A. has also attained finality. Issue of jurisdictional error was never pressed by the appellant either before the DRT in the proceeding for recall of the exparte judgement or before this Appellate Tribunal in the appeal against the order rejecting the application for recall of exparte judgement or before the Hon’ble High Court in the revisional petition filed under Article 227 of the Constitution of India. It shows that appellant accepted the jurisdictional issue before the learned DRT, DRAT and Hon’ble High Court. Now appellant is trying to raise jurisdictional issue by moving the transfer application, which is not permissible in law. Jurisdictional issue was raised before the Recovery Officer, who did not accept the argument advanced by the appellant and passed an order rejecting the argument, but the same was not challenged by the appellant before any authority.

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I am of the view that appellant has filed this transfer petition merely to delay the recovery proceeding with oblique motive. Record shows that in the O.A. proceeding, which was intiated in December, 2011, an exparte judgement was passed issuing recovery certificate for realization of more than Rs.2.00 crores. Since then appellant is trying to lingering on the matter on one ground or the other. The intention of the appellant is to create hurdle in the process of recovery.

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As far as power of DRAT regarding transfer of case from one Tribunal to another is concerned Section 17(A)(2) of the Act empowers the DRAT to transfer a case. This is a judicial power which has to be exercised by the Tribunal strictly in accordance with law. A case can only be transferred from one Tribunal to another when ground is made out. In the present case the ground which has been alleged by the appellant could not find support from the law. Hence, I do not find any reason to transfer the recovery proceeding from the Recovery Officer, DRT, Kolkata to Guwahati.

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Learned counsel for the appellant further submits that DRAT can exercise its power to correct the jurisdictional error u/s 115 of the C.P.C..

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He has placed reliance in the case of R.K.Jain Vs. Union Bank of India & Ors. [AIR 1993 sc 1769]. Paragraph 47 of the judgement deals with exercise of administrative jurisdiction of power. This judgement is not applicable to the facts of the present case. In Chandra Kumar Vs. Union of India & Ors. [(1997) s SCC 261] reliance is placed upon Paragraph 55 of the judgement which deals with the definition of judicial review. Reliance was also placed in Amish Jain & Anr. Vs. ICICI Bank Ltd [ILR 2012 6 Delhi 377]. Ratio of this judgement is not squarely applicable to the facts of the present case.

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On the basis of the discussion made above I am of the view that present application being M.A. No. 152 of 2022 is misconceived and is liable to be dismissed.

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ORDER

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