V CHAKRAPANI Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This writ petition is directed against an order passed on 22.4.2004 by the Debt Recovery Appellate Tribunal at Chennai in MA No. 37 of 2003, which appeal has been moved by the 1st respondent- State Bank of India, henceforth referred to as 'Bank'.

(2.) The writ petitioner was a Promoter and the Managing Director of the 5th respondent company, which was ordered to be wound up pursuant to the proceedings initiated in RC No. 10 of 1994 before the Board for Industrial Finance and Reconstruction (BIFR). The Official Liquidator attached to this Court has taken charge of the assets of the company under liquidation on 29.3.1998. Respondents 1, 2, 3 herein which are public sector undertakings, acting in consortium through the 1st respondent - Bank, initiated recovery proceedings for a sum of Rs. 13,12,48,000/- (Rupees Thirteen crores. twelve lakhs and forty eight thousand only) by instituting OA No. 1144 of 1995 before the Debts Recovery Tribunal, Bangalore, which was allowed on 13.1.1997 as against the company as the principal debtor and the writ petitioner herein in his capacity as the guarantor of the debts of the said company. Since no appeal has been preferred against the order passed by the Debts Recovery Tribunal in OA No. 1144 of 1995, it became final and consequently a Recovery Certificate was issued on 16.5.1997. A notice of demand was raised by the Recovery Officer, which was served on the 5th respondent company on 20.8.1997. The facts relating to this aspect have been pleaded in para ill of the affidavit filed in support of this writ petition, as under:

(3.) Since the notice of demand was not honoured, an order of attachment of immoveable properties belonging to the writ petitioner was issued in Form No. 16 on 31.7.2001. A sale proclamation under Rule 53 of the Second Schedule of the Income Tax Act was also published putting up the immoveable properties of the writ petitioner to sale on 7.10.2002. At this stage, the writ petitioner moved Misc. Petition No. 3 of 2001, in Recovery Proceedings No. 375 of 2001 objecting to the proposed sale of his immoveable properties on 7.10.2002. It was inter alia pleaded by the petitioner that the proclamation of sale is barred by the period of limitation contained in Rule 68B of the Second Schedule to the Income Tax Act inasmuch as the order of attachment dated 31.7.2001 should be treated to have dated back to 20.8.1997, the date on which the demand was raised by the Recovery Officer and hence the proclamation of sale is bad in law. The Recovery Officer dismissed the said objection. The writ petitioner carried the matter in appeal against that order of the Recovery Officer by instituting Recovery Appeal No. 1 of 2002 before the Debts Recovery. Tribunal. That appeal was initially dismissed on 4.10.2002. However, the writ petitioner has moved a review application by instituting AAA No. 95 of 2002. The Debts Recovery Tribunal allowed this review application on 6.1.2003 and it has set aside the earlier order dated 4.10.2002. It was held that the proposed sale of immovable property of the petitioner is barred by limitation. The 1st respondent- Bank then went in appeal by instituting MA No. 37 of 2003 before the Debts Recovery Appellate Tribunal, Chennai. That appeal was allowed on 22.4.2004, holding that the period of limitation for execution of the recovery order was 12 years and hence the proclamation of sale on 7.10.2002 is not barred by period of limitation. Calling in question the legality and validity of this order, the present writ petition has been instituted.