K. Radhakrishnan and Another vs Revenue Recovery Officer, DRT and Others

P.R. Raman, J.—The petitioners seek for issuance of a writ of mandamus to quash exhibit P3 in so far as it proceeds against the property covered by exhibit P2.

By exhibit P3 the property in question has been notified for sale by the Recovery Officer under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as "the Act"), based on the recovery certificate issued by the Debts Recovery Tribunal.

According to the petitioners, the property against which proceedings are now initiated, belongs to him as per the judgment in O.S. No. 1511 of 1993 between the petitioners and others as plaintiffs and the Syndicate Bank and others as defendants.

As per Section 29 of the Act, the provisions contained in the Second and Third Schedules to the Income Tax Act, 1961, as in force from time to time shall, as far as possible, apply with necessary modifications as if the said provisions and rules referred to the amount of debts due under this Act instead of the Income Tax Act and that any reference under the said provisions and the rules to the "assessee" shall be construed as a reference to the defendant under this Act. As per Rule 11 of the rules contained in the Second Schedule of the Income Tax Act, the Recovery Officer is empowered to consider the objection if any made to the attachment or sale of the property. As such the contention as to whether the property in question against which proceedings are initiated in the property of the petitioners herein as contended by him based on the judgment and whether they have got independent right of the property and whether there is any legally sus-tainable objection to the sale of the property in the present proceedings are matters which the Recovery Officer can decide on proper objection being raised before him. The petitioners herein have not approached the Recovery Officer with any such objection. Further even if an order passed by the Recovery Officer is adverse to the parties, they have got a further right of appeal to the Debt Recovery Tribunal as per Section 30 of the Act. In such circumstances, without taking recourse to such statutory remedy as is available in law this court will not be justified in exercising the jurisdiction under article 226 of the Constitution of India to resolve the disputed questions of fact.

In such circumstances, without prejudice to the right of the petitioners to approach the Recovery Officer and without entering a finding on the merits of the contention raised, this original petition is dismissed.