JUDGMENT M. Katju, J.
1. This writ petition has been filed for quashing auction proceedings held on 24.2,2003 auctioning house No. 5/B, Tagore Town, Allahabad and 603, K. L. Kydganj, Allahabad. Petitioner has also prayed for quashing the further recovery proceeding in pursuance of orders dated 20.2.2003 (Annexures-5 and 6).
2. It is alleged in para 2 of the writ petition that the respondent No. 3 Oriental Bank of Commerce filed suit No. 66 of 1999 for recovery of Rs. 61,56,423.46 alleging that late Ashok Kumar Jaiswal was having Current A/c No. 842 in the respondent Bank in which overdraft facility upto Rs. 12,00.000 was given to him and the petitioners were shown as guarantors/sureties to secure the repayment of the overdraft facility.
3. Ashok Kumar Jaiswal filed a written statement and made an application that he is willing to pay the reasonable amount by way of negotiation with the bank, but he denied the amount claimed by the bank alleging that it was on the higher and excessive side. It is alleged that the bank agreed for considering the request of late Ashok Kumar Jaiswal, and hence to show his bona fide he deposited Rs. 5,00.000 with the bank.
4. The said suit was transferred to Debt Recovery Tribunal, Allahabad as T.A. N. 119 of 2000. During the pendency of the case, Ashok Kumar Jaiswal died and on 5.12.2000 his counsel sought time for taking steps for serving the legal heirs of late Ashok Kumar Jaiswal through publication. On 21.2.2001 Shri G. C. Mehrotra, counsel for the bank filed the publication papers and 8.6.2001 was fixed before the Tribunal for final objections by the legal heirs of Ashok Kumar Jaiswal and on behalf of the other defendants.
5. It is alleged in para 8 of the petition that on 8.6.2001 Sri S. N. Pandey, advocate appeared only on behalf of defendant No. 1, Smt. Manju Jaiswal w/o late Ashok Kumar Jaiswal and an order was passed by the Tribunal for proceeding ex parte against the other defendants. Thereafter, the case was taken up on 1.11.2001 and Sri Satish Trivedi, advocate was engaged by defendant No. 1 who sought time for written statement, but the prayer for written statement was rejected and permission for adducing evidence was granted on payment of Rs. 4,000 and the case was fixed on 11.12.2001 for final arguments. True copy of the order sheet is Annexure-1 to the writ petition.
6. It is alleged in para 10 of the writ petition that on 11.12.2001 arguments were heard by the Tribunal, and pronouncement of Judgment was fixed on 21.12.2001. On that date, a decree was passed against all the petitioners for a sum of Rs. 61,56,423.46 with pendente lite and future interest vide Annexure-2.
7. Feeling aggrieved against the ex parte Judgment dated 21.12.2001, the petitioner filed restoration application for recalling the said order along with an application under Section 5 of the Limitation Act with an affidavit in which it was stated that the judgment dated 21.12.2001 was an ex parte judgment as no opportunity for filing written statement and adducing evidence was given to the petitioner. True copy of the restoration application is Annexure-3. The restoration application was dismissed on 24.12.2002 vide Annexure-4. Aggrieved, the petitioners filed an appeal before the Debt Recovery Appellate Tribunal. The Appellate Tribunal did not grant a stay order and fixed the next date on 11.3.2003 for argument.
8. In the meantime, the Recovery Officer (respondent No. 1) in pursuance of Judgment dated 21.12.2001 passed an order on 22.1.2003 fixing 24.2.2003 for auction of the properties of the petitioners. True copy of the order dated 22.1.2003 is Annexure-5 to the writ petition, and copy of details of the properties of the petitioners published in Amar Ujala is Annexure-6 to the petition. Aggrieved against the order dated 22.1.2003, the petitioners filed objections dated 17.2.2003 and 19.2.2003 praying that till disposal of the restoration application the recovery proceedings be stayed vide Annexures-7 and 8. These objections were still pending. However, it is alleged that the Recovery Officer without deciding these objections has auctioned the properties in dispute in favour of respondent Nos. 4 and 5 and he is still trying to auction the rest of the properties mentioned in Annexures-6.
9. It is alleged in para 21 of the petition that late Ashok Kumar Jaiswal was the Principal Borrower/Account Holder of Account No. 842. It is alleged that the writ petitioners have given bank guarantee to some other accounts only for two years in the year, 1989 which expired in 1991, but the bank has illegally utilized the same guarantee for account No. 842. It is alleged in para 24 of the petition that there was no service of the notice. Aggrieved, this petition has been filed in this Court.
10. By interim order dated 4.3.2003, this Court directed the Recovery Officer and Tribunal not to auction any property of the petitioners during the pendency of the appeal, and not to confirm the auction sale with regard to the properties in questions which were auctioned on 24.2.2003.
11. A counter-affidavit has been filed no behalf of the bank and we have perused the same.
12. In para 3 (ii), it is stated that after the death of Ashok Kumar Jaiswal his heirs were substituted on 8.6.2001. Sri S. N. Pandey, advocate appeared for defendant No. 1, Smt. Manju Jaiswal, but the other defendants did not appear despite publication and hence an order was passed to proceed ex parte against them. It is further alleged that evidence was filed by petitioner No. 1/defendant No. 1 on 11.12.2001 and arguments were made on behalf of both the parties and 21.12.2001 was fixed for judgment. On that date judgment was pronounced in open court. True copy of the order sheet and the judgment is Annexure-C.A. 1. Thereafter, recovery certificate was issued on 21.12.2001. Form 1 and Form 16 were issued to the defendants who were directed to deposit the amount or show cause, and thereafter order for attachment of the mortgaged property was issued and the mortgaged property was attached and Form-13, the proclamation of sale, was issued.
13. Thereafter, the petitioners filed Misc. Recall Application No. 95 of 2002 with an affidavit of Smt. Manju Jaiswal who alleged that her husband died on 6.10.2000 and she is not aware of the legal procedure and therefore, the order dated 21.12.2001 be recalled. True copy of the application for recall and the affidavit is Annexure-3 to the writ petition.
14. The application was contested by the Bank which filed an affidavit through its Branch Manager specifically stating that the defendants/petitioners have failed to honour the terms of the compromise and have lingered on the case before the D.R.T. on one or the other grounds. Ultimately, the matter was heard on 11.12.2001 and judgment was pronounced on 21.12.2001. The D.R.T. by order dated 24.12.2001 rejected the restoration application and recorded a specific finding that the affidavit filed in support of the restoration application was no affidavit in the eye of law. Aggrieved against the order rejecting the restoration application Appeal No. 263 of 2003 was filed by the petitioners/defendants before the Debt Recovery Appellate Tribunal, Allahabad which is pending for disposal.
15. It is alleged that the petitioners have not filed any application before the Tribunal praying for early disposal of the appeal. It is alleged that petitioners have taken no steps to press their appeal/stay application before the Appellate Tribunal.
16. In para 7 of counter-affidavit it is stated that the Bank agreed to the request of late Ashok Kumar Jaiswal but he did not honour the terms of the compromise and therefore, the compromise was withdrawn with the bank. In para 13, it is stated that on 1.11.2001 time was sought for filing written statement which was rejected by the Tribunal on the ground that since 8.6.2001 the defendants have been taking time for filing evidence but the same has not been filed. In para 15, it is stated that the defendant No. 8 was present through his counsel on various dates.
17. From the facts mentioned above, it appears that the D.R.T. rejected the restoration application of the petitioners on 24.12.2002 with the finding that the affidavit filed in support of the restoration application is defective and even if the defect is overlooked it will be seen that after the death of her husband, Smt. Manju Jaiswal took a number of dates but thereafter permitted the case to proceed ex parte,
18. Against the order dated 24.12.2002 rejecting the recall application an appeal has been filed before the Debt Recovery Appellate Tribunal being Appeal No. 263 of 2003 and the same has been fixed on 26.12.2003 for hearing. It seems that the petitioners have not pressed the stay application in that appeal and instead have rushed to this Court for stay of the recovery.
19. It may be mentioned that a recovery order is appealable under Section 30 of the Recovery of the Debts Due to Bank and Financial Institution Act, 1993. Admittedly, the petitioners have not filed any appeal under Section 30 of the said Act and have rushed to this Court.
20. In our opinion, the petitioners should file such an appeal and pray for stay, and it is the discretion of the Appellate Authority to grant stay or not.
21. Learned counsel for the petitioners has relied on the judgment of a Division Bench decision of this Court in Writ Petition No. 35757 of 2001, Ratan Chand Deep Chand v. Presiding Officer, Debt Recovery Tribunal, Allahabad, decided on 8.11.2001, However, the subsequent Division Bench decision in Writ Petition No. 33937 of 2003, Krishna Rice Mills v. Recovery Officer, Debt Recovery Tribunal, decided on 23.8.2003, has held that the aforesaid decision in Ratan Chand Deep Chand's case does not lay down any principle of law but it only contains a direction and hence it cannot be treated as a precedent.
22. In our opinion, the petitioners have an alternative remedy of filing of appeal under Section 30 against the recovery order. The petition is consequently dismissed on the ground of alternative remedy. Interim order i; vacated.