G MOORTHI vs STATE BANK OF INDIA on 17 February 2021

COMMON ORDER

1. The miscellaneous application in Dy.No.705/2020 is filed to implead the applicant as party in OA 189/2014 and also in DRC 160/2015 and the miscellaneous application in Dy.No.707/2020 is filed to set aside the order of attachment dated 2011.2015 passed in DRC.No.160/2015 by the Ld. Recovery Officer, DRT-I, Chennai. Since the Registry raised objection as to the maintainability, the matter has been heard at Bench.

2. The common averments in both the IAs in brief are, that the applicant had filed a suit for specific performance and other reliefs against Mr. R. Vijayakumar and others, in C.S.No.673/2018 before the Hon’ble High Court of Madras, the said suit has been decreed in favour of the applicant vide order dated 18.9.2020 against the said Mr. R. Vijayakumar, granting the relief of specific performance in respect of the suit schedule property, which was earlier attached by the Ld. Recovery Officer, DRT-I, Chennai at the behest of the 1st respondent, vide order of the Ld. Recovery Officer dated 20.11.2015 in DRC No.160/2015. It is further contended that in the above suit, the 1st respondent bank herein has filed an application for rejection of the plaint and the same was dismissed. The applicants claim that in view of the decree passed in their favour in CS No.673/2018, the property described in the schedule of the petition has become their absolute property and neither the defendants in CS No.673/2018 nor the first respondent bank has any interest, right or title over the said property.

3. The applicants would further contend that in the light of the decree in CS No.673/2018, the order of attachment dated 20.11.2015 passed by the Ld. Recovery Officer cannot sustain, hence, the present petitions are filed to implead the applicant as a party to the OA 189/2014 and also in DRC 160/2015 besides to set aside the order of attachment dated 20.11.2015 in DRC No.160/2015 passed by the Ld. Recovery Officer, DRT-I, Chennai.

4. Having heard the Ld. Counsel for the miscellaneous applicants and on perusal of the record, it is to be stated that, insofar as the petition filed in Dy.No.705/2020 to implead the applicant as party in OA 189/2014 and also in DRC No.160/2015 is concerned, admittedly the proceedings in OA 189/2014 before this Tribunal stood concluded on passing of the final order dated 13.3.2015 and on issuance of DRC No.160/2015 dated 31.8.2015. That apart, in terms of Section 19(1) of RDB Act, Application before this Tribunal would lie only for recovery of “debt” due to banks and financial institutions. Admittedly, the applicant herein has nothing to do with the debt, recovery of which was sought by the 1s respondent vide OA No.189/2014. So much so, the petition in Dy.No.705/2020 to implead the applicant as party in OA 189/2014 or in DRC 160/2015 is not maintainable, as such, the office objection as to its maintainability is upheld.

5. Insofar as the petition in Dy.No.707/201 filed to raise the order of attachment is concerned, admittedly the said order has been passed by the Ld. Recovery Officer during the execution proceedings. Therefore, the applicant being aggrieved by the said order can file a petition before the Ld. Recovery Officer in terms of Rule 11 of Procedure for Recovery of Tax, the Second Schedule, which is as follows:

11. (1) Where any claim is preferred to, or any objection is made to the attachment or sale of, any property in execution of a certificate, on the ground that such property is not liable to such attachment or sale, the Tax Recovery Officer shall proceed to investigate the claim or objection: Provided that no such investigation shall be made where the Tax Recovery Officer considers that the claim or objection was designedly or unnecessarily delayed.

(2) Where the property to which the claim or objection applies has been advertised for sale, the Tax Recovery Officer ordering the sale may postpone it pending the investigation of the claim or objection, upon such terms as to security or otherwise as the Tax Recovery Officer shall deem fit.

(3) The claimant or objector must adduce evidence to show that—

(a) (in the case of immovable property) at the date of the service of the notice issued under this Schedule to pay the arrears, or (b) (in the case of movable property) at the date of the attachment, he had some interest in, or was possessed of, the property in question.

(4) Where, upon the said investigation, the Tax Recovery Officer is satisfied that, for the reason stated in the claim or objection, such property was not, at the said date, in the possession of the defaulter or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the defaulter at the said date, it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the Tax Recovery Officer shall make an order releasing the property, wholly or to such extent as he thinks fit, from attachment or sale.

(5) Where the Tax Recovery Officer is satisfied that the property was, at the said date, in the possession of the defaulter as his own property and not on account of any other person, or was in the possession of some other person in trust for him, or in the occupancy of a tenant or other person paying rent to him, the Tax Recovery Officer shall disallow the claim.

(6) Where a claim or an objection is preferred, the party against whom an order is made may institute a suit in a civil court to establish the right which he claims to the property in dispute; but, subject to the result of such suit (if any), the order of the Tax Recover Officer shall be conclusive.

6. Thus, when there is a specific and efficacious remedy available to the applicant, the applicant has not stated how the applicant can circumvent the above remedy and maintain these petitions before this Tribunal. That apart, in terms of Section 30 of the RDB Act, this Tribunal being an Appellate Authority against the order passed by the Ld. Recovery Officer, cannot entertain the present petition as filed. Therefore, in view of my brief discussion as above and on perusal of the record, I hereby hold that these petitions are not maintainable, consequently, the office objection as to the maintainability of these petitions, before this Tribunal is sustained.

7. However, it is hereby made clear that the applicant is at liberty to represent MA in Dy.No.707/2020, before the Ld. Recovery Officer, DRT-I, Chennai, after making suitable changes along with a neat copy of the same and on presenting the same, the Ld. Recovery officer shall dispose of the same by giving opportunity to both sides, as per law, as expeditiously as possible, but not later than 16.6.2021.

8. Ordered accordingly.

(Dictated to PA(SN), transcript revised, corrected and pronounced in the virtual court held through video conference on this 17th Day of February, 2021).

Sd/- (Dr. N.V.BADARINATH) PRESIDING OFFICER DRT-I, CHENNAI