The issue for discussion before the Court was that the appeal/ application under Section 17 of the SARFAESI Act is maintainable only before the DRT within whose jurisdiction the asset/property with respect to which the petition is filed is located. In view of this the DRAT in exercise of powers under Section 17A of the DRT Act would mean to have no power to transfer the applications under Section 17 of the SARFAESI Act from the DRT within whose jurisdiction the properties with respect to which the applications are filed are situated, to another DRT.
It was observed that Section 17A (2) of the DRT Act which, while defining the powers of the Chairperson of the DRAT provides that the Chairperson of the DRAT having jurisdiction over the Tribunals may, on the application of any of the parties or on his own motion after notice to the parties and hearing them, transfer any case from one Tribunal for disposal to any other Tribunal.
The connected question thus that arose was whether in exercise of powers under Section 17A of the DRT Act, the Chairperson of the DRAT can transfer appeals / applications under Section 17 of the SARFAESI Act from one DRT to another and particularly from a DRT having territorial jurisdiction to entertain the same to a DRT having no territorial jurisdiction.
On the above question it was held that as far as the question of transfer from DRT having territorial jurisdiction to a DRT having no territorial jurisdiction is concerned, Section 17A of the DRT Act, while conferring power on the Chairperson of the DRAT for such transfer, does not impose any condition of the transfer being permissible only to such DRT which would also have territorial jurisdiction or transfer being not permissible to a DRT which does not have territorial jurisdiction. A reference was made to Section 24 of the Code of Civil Procedure, 1908 (CPC) which confers power on the High Court as well as District Judge, of transfer of suits, appeals or other proceedings from one Court to another. The same also does not contain any such restriction such power of transfer can also be exercised with respect to a suit or proceeding instituted and pending in a Court which has no jurisdiction to entertain the same. Thus, in exercise of powers of transfer, proceedings can be transferred to a Court, which does not even enjoy territorial jurisdiction. It is so because otherwise the very purpose and object of conferring the power to transfer will be nullified. It was held that the words in Section 24 of the CPC “competent to try” (and which are missing in Section 17A of the DRT Act) do not refer to territorial jurisdiction.
The SARFAESI Act does not contain any provision for transfer of appeals/applications under Section 17 thereof from one DRT to another but it cannot be lost sight of that the SARFAESI Act not only constitutes the DRT constituted under the DRT Act as a forum for deciding the appeals /applications under Section 17 thereof but by Section 18 thereof also designates the DRAT, also constituted under the DRT Act,as an Appellate Tribunal for hearing appeals against the orders of DRT on appeals/applications under Section 17 of the Act.
Section 18(2) again provides that the DRATs shall dispose of the appeals against orders of the DRTs under Section 17 of the SARFAESI Act in accordance with the provisions of DRT Act and the Rules made thereunder. Vide Section 17A(1) of the DRT Act, the Chairperson of the DRAT exercises general power of superintendence and control over the DRTs under his jurisdiction and it is in this power of superintendence that Section 17A(2) empowers the Chairperson of the DRAT to transfer any case from one Tribunal for disposal to any other Tribunal.
It was held as hard to believe that though the SARFAESI Act also constitutes DRT as the forum for adjudication of appeals/applications under Section 17 thereof and the DRAT as the forum to hear appeals under Section 18 thereof against the orders of DRT on appeals/applications under Section 17 of the SARFAESI Act but the Chairperson of the DRAT would not have power of superintendence over the DRTs whilst the DRTs exercise powers of adjudication of appeals/applications under Section 17 of the SARFAESI Act. The same would tantamount to denuding the Appellate Authority under the SARFAESI Act from an essential power and which would not be conducive to the scheme of hierarchy of fora for adjudication provided under the SARFAESI Act. Once, SARFAESI Act constitutes DRAT as the Appellate Authority of DRTs exercising adjudicatory powers under the SARFAESI Act, to hold that DRAT does not have the power of superintendence over DRT would be nugatory of the appellate powers of DRATs. Such power of transfer in the scheme of the Act has to be held inherent and implicit in the DRAT, particularly when guidelines for exercise thereof are prescribed in the DRT Act.
[Paramount Plastic Industries vs. Corporation Bank & Ors.]
(Delhi HC, 26.09.2014)