@JUDGMENTTAG-ORDER
Sushil Harkauli, J.@mdashI have heard the learned Counsel for the Petitioner and learned Counsel for the Respondent Bank as also the learned Counsel for the intervener.
2. The Petitioner, being a financial corporation, claims to have advanced loan for which a charge was created over the property in question. The Petitioner claims its charge to be the first charge of the property.
3. It appears that the original owner of the property created a second charge over the property in favour of the Respondent Bank for obtaining working capital loan.
4. The Petitioner claims that because of default it took proceedings u/s 29 of the State Financial Corporations Act, 1951. In the meantime the Respondent Bank instituted a suit for the recovery of the amount alleged to be due to the Bank and obtained a money decree in its favour. The money decree was transferred for execution to the Debt Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act 1993. The recovery certificate was issued. The Petitioner, on corning to know this, filed objections before the Recovery Officer u/s 29 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rule 11 of the Income Tax (Certificate Proceedings) Rules. 1962.
5. The objections were rejected by the Recovery Officer by the impugned order dated 24.5.2006, Annexure-13 to the writ petition.
6. An appeal against the order of the Tax Recovery Officer was dismissed by the Debt Recovery Tribunal upon second impugned order dated 28.1.2009, Annexure-15 to the writ petition.
7. Although the Petitioner has the alternative remedy of a civil suit under Rule 11(6) of the aforesaid rules and also of an appeal before the Debt Recovery Tribunal, yet the Petitioner chose to file this writ petition.
8. Ordinarily, intervention may have been refused on the ground of the aforesaid alternative remedy, but a perusal of the. order of the Tax Recovery Officer indicates that although it is a long order but it has failed to address the cr(sic)ial issue required to be seen under Rule 11(3) of the aforesaid rules namely; whether the Petitioner-objector had an interest in the property at the relevant time. The Petitioner claims to have interest in the property on the strength of the first charge in its favour.
9. Even the appellate order of the Debt Recovery Tribunal failed to address itself to this crucial issue.
10. That being the situation, it would not be in the interest of justice to allow the proceedings to multiply either by way of civil suit or by way of appeal before the Debt Recovery Tribunal to the detriment of all parties concerned.
11. In view of what has been stated above, the impugned orders of the Tax Recovery Officer and the Debt Recovery Tribunal are quashed. The matter is sent back to the Tax Recovery Officer for passing a fresh order after giving opportunity of hearing to the Petitioner, the Respondent Bank and the intervener who claims to have deposited a substantial amount of money towards purchase of the property in question. It will be open to the Tax Recovery Officer to hear any other party which he thinks would be concerned with the issue.
12. Having regard to the interest of the intervener as well as the parties, the Tax Recovery Officer will take the fresh decision within one month of the date on which a certified copy of this order is presented before him.
13. While taking the decision, the Tax Recovery Officer will keep in mind the provisions of Rule 11 as well as the evidence given by the Petitioner as required by Rule 11(3) in support of its objection.
14. The writ petition is allowed to the above extent. A certified copy of this order may be issued to the parties on payment of requisite charges within 48 hours.
