KAMAL KISHORE GUPTA Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment/order dated 23rd July, 2004 passed by Mr. K.D. Khan, Presiding Officer, D.R.T., Jabalpur in appeal No. 9/2004, where by and where under the order dated 23rd March, 2004 passed by the Recovery Officer in T.A. Execution No. 49/ 2000 has been set aside by exercising jurisdiction under Section 30(1) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter shall be called as the RDDBFI Act). By the impugned order the learned Presiding Officer, D.R.T., Jabalpur as an Appellate Court has held that the order of the Recovery Officer setting aside the auction sale is illegal and inoperative in the eye of law.

(2.) IN the present appeal, the contention of the C.D. appellant is that the appeal was not maintainable, when Bank was not an aggrieved party before the D.R.T., Jabalpur. The real aggrieved party auction purchaser has not come up for appeal. Secondly it is the contention of the appellant that when Rules 57(1) and 57(2) of Schedule II to the Income -tax Act is a mandatory one, then there was no scope for the learned Presiding Officer, D.R.T. to make it directory by applying the provisions of Section 29 of the RDDBFI Act and giving go -bye to the judgment of the Apex Court as reported in which is the law of the land.

(3.) ON hearing the learned Counsel for both the parties on the legal points raised, I have perused the records of the case in the light of such submission. Regarding the first point of maintainability of the application which is regarding setting aside of sale without making deposit as provided under Rule 61 of Schedule II to the Income -tax Act. With regard to Rule 61 itself for filing of application beyond the period of 30 days no answer could be given by the learned Counsel for the appellant, rather he had to admit that the application for setting aside of sale was filed on 12th June, 2003 which is much beyond the period of limitation of 30 days when the sale was conducted on 13th March, 2003. He had also admitted that no deposit has been made as mandatory required under Rule 61(b) of Schedule II to the Income -tax Act. In that way, such application for setting aside of sale is not maintainable and should be thrown out at the very outset when the mandatory provisions have not been complied with. The feeble submission has been made that when some discretion is there under Section 29 of the RDDBFI Act then such application filed belatedly without any deposit might be accepted by the Recovery Officer applying such discretion but such discretion even if applicable, then also reasons must be there as to why such discretion has been made, but in the present case the Recovery Officer has not at all considered regarding the maintainability of the application filed for setting aside of sale beyond the mandatory provisions. In that way, it has rightly been held in the impugned appellate order by the learned Presiding Officer, D.R.T., Jabalpur that the Recovery Officer erred in accepting the application for adjudication. In that way, practically the order of the Recovery Officer becomes nullity.