ICICI BANK LIMITED BANGALORE Vs. V T PRAKASH

JUDGEMENT

(1.) ORDER :The revision petitioner- ICICI Bank invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India to revise the order passed by the District Judge, Ranga Reddy District dated 29-1-2003 in IA No.316/2003 in OS No.14/2003, whereunder the learned District Judge issued ad-interim ex parte injunction restraining the revision petitioner- ICICI Bank and Recovery officer, Debt Recovery Tribunal, Hyderabad from selling the suit schedule property in OS No.14/2003.

(2.) The facts which are not in dispute are as under: The revision petitioner-Bank initiated proceedings for recovery of debt due to it before the Debt Recovery Tribunal under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short "the Act 51/1993") against the third respondent herein and others and obtained a Recovery Certificate for a sum of Rs.36,42,211-74 ps. After obtaining recovery certificate, the revision petitioner-Bank initiated proceedings for sale of mortgaged property. When the third respondent herein and others failed to comply with the demand notice dated 8-3-2001 order of attachment of immovable property and notice for settling a sale proclamation dated 12-4-2001 in respect of the mortgaged property of the third respondent herein situate at Gaganpahad village, Rajendra Nagar Mandal, Ranga Reddy District have been served. On issuance of Forms 16 and 17 notice, the third respondent others failed to pay the amount, proclamation of sale dated 28-8-2002 has been issued fixing the date of auction on 17-10-2002. At that stage, respondents 1 and 2 herein filed a claim petition No.3/2000 before the Debts Recovery Tribunal, Hyderabad under Rule 11 of the Second Schedule to the Income Tax Act, 1961 seeking to raise the attachment order dated 12-4-2002 in R.P.No.487/2001 over the agricultural lands admeasuring Ac.10-31 guntas in S.Nos.263, 281, 282 and 283 situate at Gaganpahad village. The Recovery Officer, Debt Recovery Tribunal, Hyderabad after enquiring into the claim by its order dated 1-11-2002 dismissed the aim petition holding that the petition Schedule property is a self acquired property of the third respondent herein and not a Joint Hindu Family property, the debt involved is not a "avyavaharika" debt and the Tribunal has rightly attached the property under the provisions contained in Rules 48 and 53 of the Second Schedule of the Income Tax Act, 1961. In view of the rejection of the claim, the Recovery Officer issued proclamation of sale dated 11-12-2002 by the Recovery Officer rejecting the claim will be subject to the result of such suit instituted as the said procedure is made applicable in view of Section 29 of Act 51/

(3.) Learned Senior Counsel further submits that in view of the alternative remedy available to the revision petitioner, namely moving the civil Court for vacating the injunction order or can file an appeal as contemplated under Order 43, Rule 1 of the Code of Civil Procedure, the petitioner cannot invoke the jurisdiction of this Court under Article 227 of the Constitution and under the guise of suspension of the ad- interim ex parte injunction, the Recovery Officer, who earlier cancelled the auction scheduled to be held on 30-1-2003 and returned EMD, called the bidders and conducted auction on 4-2-2003 is in total defiance to the procedure contemplated in this regard and hence, this Court should set- aside the said auction which was proceeded to pursuant to the interim suspension granted by this Court.