1. The petitioner has approached this Court with present petition against the action of learned Debt Recovery Tribunal-II, Ahmedabad, claiming that the actions taken and orders passed by learned Tribunal of extending, more than once, the order of suspending the implementation of judgment, is without jurisdiction and although the learned Debt Recovery Tribunal-II, Ahmedabad, after rendering the judgment dated 03/01/2012, becomes functuous officio and has no authority or jurisdiction to pass order suspending the implementation and operation of the judgment at the instance of the original applicant before the Tribunal, the learned Tribunal has repeatedly passed such order and one such order is passed even after the submission of appeal before the Appellate Tribunal.
2. Learned advocate Mr.Shah has appeared for the petitioner and submitted that the orders passed by the learned Tribunal after rendering the judgment dated 03/01/2012 are without jurisdiction and that therefore the petitioner has preferred present petition instead of approaching the appellate tribunal. He submitted that in view of fact that the orders passed by learned Tribunal which are impugned in present petition are patently without jurisdiction. The writ petition is maintainable in view of decision by the Apex Court in case of Whirlpool Corporation v. Registrar of Trade Marks reported in (1998) 8 SCC 1 and M.P. State Agro Industries Development Corporation Ltd. v. Jahan Khan reported in (2007) 10 SCC 88.
3. In the cases where the special statute has created and provided appellate authority and special forum as remedy of statutory appeal is made made available under the statute to the aggrieved party, ordinarily this Court would not entertain writ petition under Article-226 of the Constitution of India and the Court would not exercise prerogative writ jurisdiction.
4. In present case it is noticed from the facts emerging from the record that after the learned Tribunal passed the judgment dated 03/01/2012 in Securisation Appeal No.9 of 2009, the applicant before the learned Tribunal had moved an application praying for stay of the judgment.
5. The Tribunal, after passing and pronouncing the judgment, had granted the request and stayed the implementation of the judgment for a period of thirty days.
6. Thereafter, instead of filing appeal before the appellate authority, the said applicant moved another application for further extension and the learned Tribunal passed order dated 02/02/2012 and again extended suspension of judgment until 16/03/2012.
7. It also emerges from the record that thereafter original applicant has filed appeal before the Appellate Tribunal, however, either the appeal is not circulated for admission hearing or is not heard and on that basis, instead of making request before learned Appellate Tribunal to stay the judgment of the learned Debt Recovery Tribunal, the said applicant chose to file another application before the learned Debt Recovery Tribunal and requested for further extension of suspension order against the judgment.
8. It is in this background of fact that the petitioner has approached this Court with present petition.
9. In view of aforesaid facts, it would prima facie appear that there is substance in petitioner's grievance. However, this Court is not inclined to entertain present petition only on the limited ground viz. statutory alternative remedy by way of appeal is available to the petitioner, more particularly in view of the fact that the petitioner is already party to the appeal proceedings taken out by present respondent no.1.
10. Only on the said limited ground, the petition of present petitioner is not entertained.
11. Though, it prima facie appears that there is some substance in the contentions raised by learned advocate for the petitioner herein, the Court would refrain from making any other or further observations lest the proceedings before the learned Appellate Tribunal may not be influenced and also because the petition is not been entertained on ground of alternative remedy by way of appeal and it would be for the learned appellate Tribunal to decide the contentions raised by present petitioner including the issue about legality maintainability and propriety of the order passed by the learned Tribunal.
12. It is clarified that the prima facie observations made by this Court with reference to the orders passed by learned Tribunal are made only for the purpose of disposing this petition and learned appellate Tribunal shall pass appropriate order on the application which may be preferred by present petitioner against the actions/orders passed by learned Debt Recovery Tribunal on its own merits and in accordance with law, without being influenced by observations in present order or by the fact that the learned Debt Recovery Tribunal has time and again extended the order suspending the operation of judgment. This Court is also not interfered at this stage in present petition because the Court is informed that original applicant has already filed the appeal and the petitioner is party respondent in the said proceedings.
13. The petition is accordingly disposed of and the petition is relegated to the Appellate Tribunal so that appropriate appeal can be filed against the order passed by learned Debt Recovery Tribunal. Direct service is permitted.
(K.M.THAKER, J.) (ila) Top