Case Note & Summary
The petitioner, Tiger Jewellery India Private Limited, filed a writ petition under Article 226 of the Constitution of India challenging the appointment of respondent no.2, Shri Vijay Kumar, as Presiding Officer of Debts Recovery Tribunal No.1, Mumbai, on the ground that he did not possess the qualifications prescribed under Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The petitioner also challenged an order dated 16.06.2009 passed by the Debts Recovery Appellate Tribunal (DRAT) rejecting his praecipe for early hearing of an appeal pending before it. The background of the case is that respondent no.1, Punjab National Bank, had filed Original Application No.27/2008 before the DRT for recovery of debts. During the pendency of that OA, the petitioner, as defendant, filed an application for dismissal of the OA on the ground that it was filed in violation of Section 19(3) and 19(25) of the Act read with Rule 18 of the DRT (Procedure) Rules, 1993. The DRT rejected that application and directed the petitioner to file a written statement. The petitioner appealed against that order to the DRAT, and the appeal was pending. The petitioner then submitted a praecipe for early hearing, which was rejected by the DRAT with the noting "No urgency shown. Hence, rejected by the Hon'ble Chairperson." The petitioner challenged both the appointment of the Presiding Officer and the DRAT's order. The court held that the appointment of respondent no.2 was made by the Central Government after consultation with the High Court, and the petitioner failed to produce any material to show that respondent no.2 was not qualified as a District Judge. The court noted that the petitioner had not even made a specific averment that respondent no.2 was not qualified. The court also declined to examine the merits of the DRT's order as the appeal was pending before the DRAT. The court dismissed the petition, holding that the challenge to the appointment was without merit and that the DRAT's order rejecting the praecipe did not warrant interference.
Headnote
A) Constitutional Law - Writ of Quo Warranto - Appointment of Presiding Officer of DRT - Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - The petitioner challenged the appointment of respondent no.2 as Presiding Officer of DRT on the ground that he did not possess the requisite qualification of being a District Judge. The court held that the appointment was made by the Central Government after consultation with the High Court, and the petitioner failed to produce any material to show that respondent no.2 was not qualified. The writ of quo warranto was not maintainable as the appointment was valid on its face. (Paras 8-10)
B) Debt Recovery - Interim Order - Challenge to Order of DRT - Section 19(3), 19(25) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Rule 18 of the DRT (Procedure) Rules, 1993 - The petitioner's application for dismissal of OA No.27/2008 was rejected by the DRT, and the appeal against that order was pending before the DRAT. The court declined to examine the merits of the DRT's order as the appeal was pending. The DRAT's order rejecting the praecipe for early hearing was also not interfered with. (Paras 5-6)
Issue of Consideration
Whether the appointment of respondent no.2 as Presiding Officer of DRT No.1, Mumbai, is invalid for want of qualification under Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, and whether the order dated 16.06.2009 passed by the DRAT rejecting the petitioner's praecipe for early hearing is sustainable.
Final Decision
The court dismissed the writ petition. The court held that the petitioner failed to make out any case for issuance of a writ of quo warranto or certiorari. The court noted that the appointment of respondent no.2 was made by the Central Government after consultation with the High Court, and the petitioner did not produce any material to show that respondent no.2 was not qualified as a District Judge. The court also declined to interfere with the DRAT's order rejecting the praecipe for early hearing, as the appeal was pending and no urgency was shown.
Law Points
- Appointment of Presiding Officer of DRT must be in accordance with Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act
- 1993
- which requires qualification as District Judge
- challenge to appointment on ground of lack of qualification requires strict proof
- writ of quo warranto is not maintainable when appointment is made by competent authority and no prima facie case of disqualification is made out.
Case Details
2010 LawText (BOM) (08) 107
WRIT PETITION NO. 1101 OF 2009
P. B. Majmudar, Anoop V. Mohta
Mr. Mathews Nedumpara with Smt. Jaymala J. Ostwal for the petitioner; Mr. Rafeeq Peermohiddin with Mr. S.S.Ghosh and Mr.P.N.Kamat i/by M/s. Paras Kuhad & Associates for respondent no.1; Mr M. I. Sethna, Sr. Counsel with Mr. A.M. Sethna and Mr. L.S.Shetty i/by m/s.Shetty, Sethna and Associates for respondent no.2; None for respondent no.3; Mr. D. J. Khambatta, Additional Solicitor General with Mr. L.S. Shetty and Mr. A.M. Sethna for respondent no.4 Union of India.
Tiger Jewellery India Private Limited
Punjab National Bank, Shri Vijay Kumar (Presiding Officer, DRT No.1, Mumbai), Debts Recovery Appellate Tribunal, Mumbai, Union of India
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging the appointment of the Presiding Officer of DRT and an order of DRAT rejecting praecipe for early hearing.
Remedy Sought
The petitioner sought a writ of quo warranto/certiorari to set aside the appointment of respondent no.2 as Presiding Officer of DRT No.1, Mumbai, and to set aside the order dated 16.06.2009 passed by the DRAT rejecting the praecipe for early hearing.
Filing Reason
The petitioner alleged that respondent no.2 did not possess the qualifications prescribed under Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for appointment as Presiding Officer of DRT, and that the DRAT's order rejecting the praecipe for early hearing was arbitrary.
Previous Decisions
The DRT had rejected the petitioner's application for dismissal of OA No.27/2008 (Exh. 13) and directed the petitioner to file a written statement. The petitioner appealed that order to the DRAT, which was pending. The DRAT rejected the petitioner's praecipe for early hearing on 16.06.2009.
Issues
Whether the appointment of respondent no.2 as Presiding Officer of DRT No.1, Mumbai, is invalid for want of qualification under Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.
Whether the order dated 16.06.2009 passed by the DRAT rejecting the petitioner's praecipe for early hearing is sustainable.
Submissions/Arguments
The petitioner submitted that respondent no.2 did not possess the qualification of being a District Judge as required under Section 5 of the Act, and therefore his appointment was invalid. The petitioner also argued that the DRAT's order rejecting the praecipe for early hearing was arbitrary and without reasons.
The respondents submitted that the appointment of respondent no.2 was made by the Central Government after consultation with the High Court, and the petitioner failed to produce any material to show that respondent no.2 was not qualified. They also argued that the DRAT's order was discretionary and not subject to interference.
Ratio Decidendi
The appointment of a Presiding Officer of DRT under Section 5 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 requires the qualification of being a District Judge. A challenge to such appointment by way of writ of quo warranto must be supported by specific averments and material showing lack of qualification. In the absence of such material, the appointment made by the competent authority after consultation with the High Court is presumed valid.
Judgment Excerpts
The petitioner, against whom an interim order was passed by the Debts Recovery Tribunal (for short, “DRT”) by which the DRT has not accepted the request of the petitioner to dismiss the application being OA No.27/2008 filed by respondent no.1 and even though the Appeal against the said interim order of the DRT is pending before the Debts Recovery Appellate Tribunal (for short, “DRAT”) is, by way of this petition, now challenging the appointment of the Presiding Officer of the DRT/respondent no.2Shri Vijay Kumar, on the ground that the initial appointment of the said Officer is not in accordance with the qualification prescribed under The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, “the Act”).
The learned counsel for the petitioner submits that as per the provisions of Section 5 of the Act, the Presiding Officer of the DRT should be a person who is or has been a District Judge. According to the learned counsel, respondent no.2 is not possessing the qualification of being a District Judge and, therefore, his appointment is invalid.
Procedural History
The petitioner filed a writ petition under Article 226 of the Constitution of India challenging the appointment of respondent no.2 as Presiding Officer of DRT No.1, Mumbai, and an order of DRAT dated 16.06.2009 rejecting the praecipe for early hearing. The petition was heard by a Division Bench of the Bombay High Court on 31.08.2010. The court granted leave to delete respondent no.3 (DRAT) from the array of parties. Rule was issued and with consent of parties, the matter was taken up for final hearing. The court dismissed the petition.
Acts & Sections
- Recovery of Debts Due to Banks and Financial Institutions Act, 1993: Section 5, Section 19(3), Section 19(25)
- Debts Recovery Tribunal (Procedure) Rules, 1993: Rule 18
- Constitution of India: Article 226
