9911796707
TMI Blog2011 (1) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... s started by the official liquidator. 2. This applicant is a certificate debtor along with the company in liquidation in proceedings before the Debts Recovery Tribunal at Amhedabad which is numbered as Original Application No. 288 of 1997. 3. In connection with the above liquidation proceedings, misfeasance proceedings, inter alia, against the applicant are pending before this court. It is submitted before me that before the Debts Recovery Tribunal, Amhedabad, the applicant is a guarantor. 4. The certificate is for about Rs. 15.60 crores. This debt was adjudicated as payable long ago on March 21, 2005. The certificate was obtained by IFCI Ltd. Attempt to set aside the ex parte order failed. The records say that on July 29, 2010, recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant will have to show that these properties do not belong to him. His lawyer Mr. K. R. Das would also have to show that the third property belongs to him, so as to release them from attachment. Now, if such a plea is raised, the Tribunal has to adjudicate it. In the misfeasance proceedings this court has to adjudicate the selfsame issues. Therefore, the proceedings before the Debts Recovery Tribunal should be stayed to enable this court to determine this issue. This determination by the Debts Recovery Tribunal would amount to interference with this court's jurisdiction. 7. Learned counsel for the petitioner also submits that in any event the Debts Recovery Tribunal can determine this issue by giving notice to the official liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfeasance proceedings, because if this adjudication is made wrongly by holding that these properties do not belong to him when actually they do, the loser will be the company in liquidation. If the converse is decided wrongly then the company court in misfeasance proceedings will realise monies out of properties which do not belong to the said respondent/applicant, which will be a most unjust state of affairs. 11. The hon'ble Supreme Court in Allahabad Bank (supra) said the following (pages 77 and 88) : "There is one more reason as to why it must be held that the jurisdiction of the Recovery Officer is exclusive. The Tiwari Committee which recommended the constitution of a Special Tribunal in 1981 for recovery of debts due to banks and fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. This position holds good during the pendency of the winding up petition against the debtor company and also after a winding up order is passed. No leave of the company court is necessary for initiating or continuing the proceedings under the RDB Act, 1993. Points Nos. 2 and 3 are decided accordingly in favour of the appellant and against the respondents." 12. The inconsistency referred to by the hon'ble Supreme Court in that judgment was sought to be explained by the same court in Rajasthan Financial Corpn. (supra). The following proposition was laid down in paragraph 18(i). It said as follows (page 400) : "(i) A Debts Recovery Tribunal acting under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decide set off and counter claims. Then in section 19(13A), the Tribunal has the power to pass an order asking for security, attachment of property and the like. If the Tribunal has the power to order attachment of property, the power to decide the title to that property is incidental to it. I am of the opinion that the Recovery Officer does not have any such power. 17. Further, in my opinion, there is more substantial connection of the Debts Recovery Tribunal with the properties of the guarantor/applicant. The debt has been adjudicated by it. The certificate has also been issued. Recovery is underway. Misfeasance proceedings have not reached that stage before this court. Therefore, I am of the opinion, that this Tribunal should decide t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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