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TMI Blog1997 (5) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... quest for a short-term loan was sanc- tioned for a sum of Rs. 1.10 crores subject to the conditions and terms as mentioned in the letter of acceptance of the request of borrowing. According to the petitioner, it placed five lakh shares of Rs. 10 each held by it in equity share capital of Oil Country Tubular Ltd. as collateral security for the loan. The loan was to be repaid in three instalments of Rs. 36.66 lakhs each, however, the last being of Rs. 36.68 lakhs. The petitioner paid the first instalment on 29-6-1992. In the mean while, however, action was taken under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, ( the Act ) and the office of the Custodian, Special Court, made certain enquiries as regards the loan by the petitioner. It (the petitioner) furnished informations in this behalf and it is alleged, received in return a letter, dated 9-6-1993, from the second respondent the Custodian for payment of the balance instalments of the loan. The petitioner, it is alleged, informed the second respondent vide letter, dated 16-6-1993, that he could invoke clause 15 of the agree-ment under which equity shares of Oil Country Tubular Ltd. were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment of one or more Custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders. (The Bill seeks to replace the said Ordinance)." 4. After, however, the enactment, which came into force, after receiving the assent of the President, on August 18,1992, amendment is introduced by Act No. 24 of 1994, by providing some provisions in respect of the trial of the cases for the offences under the Act, in the absence of the Special Court and after section 9 of the principal Act, section 9A is added, which reads as follows: "9A. Jurisdiction, powers, authority and procedure of Special Court in civil matters. (1) On and from the commencement of the Special Court (Trial of Offences Relating to Transactions in Securities) Amendment Act, 1994, the Special Court shall exercise all such jurisdiction, powers and authority as were exercisable, immediately before such commencement, by any Civil Court in relation to any matter or claim ( a )relating to any property standing attached under sub-section (3) of section 3; ( b )arising out of transactions in securities entered into after the 1st day of April, 1991, and on o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such record or document from any office; ( e )issuing commissions for the examination of witnesses or docu-ments; ( f )reviewing its decisions; ( g )dismissing a case for default or deciding it ex parte; ( h )setting aside any order of dismissal of any case for default or any order passed by it ex parte; and ( i )any other matter which may be prescribed by the Central Govern-ment under sub-section (1) of section 14." 5. This new section and section 9B with which we are not concerned, has vested in the Special Court under the Act jurisdiction, powers and authority of any Civil Court in relation to any matter or claim ( a ) relating to any property standing attached under sub-section (3) of section 3; and ( b ) arising out of transactions in securities entered into after the 1 -4-1991, and on or before 6-6-1992, in which a person notified under sub-section (2) of section 3 is involved as a party broker, intermediary or in any other manner and also that of a Court under the Arbitration Act to decide any question forming the subject-matter of a reference relating to any matter or claim as above ( see section 9B). 6. Section 3(1) says the Central Government may ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in M.P. No. 68 of 1994, if so advised, can raise objection as to the jurisdiction of the Special Court and the Special Court, as we have noticed above, shall decide upon its own jurisdiction. The learned counsel for the petitioner has, however, stated that in case the issue as to the jurisdiction of the Special Court is not decided as a preliminary issue, there shall be inordinate delay and the petitioner shall suffer a protracted litigation in the Special Court. Ordinarily in matters which are referable to jurisdic-tional facts and which jurisdictional facts are found connected with the facts in issue otherwise in the proceeding before it, it does not decide the issue of jurisdiction separately and independently. All issues of facts and law in such matters are taken up together and the issue of jurisdiction is decided along with other issues. This, however, does not mean that in a proper case when such Court, Tribunal or authority is satisfied that the entire matter can be disposed of on the basis of the preliminary issue only, which issue involves a pure question of law, it cannot decide to take up such issue as a preliminary issue. The petitioner, on appearance in response ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any of the matters in the Concurrent List, that is, List III alone, can be covered and thus "money-lending and money-lenders" being a subject in the State List only and not in the Concurrent List, Parliament has not been given the power to make law on the subject of "money-lending and money-lenders" an obvious mistake and to say that least, extending the purpose and the subject beyond the matter which is covered by section 9A. As we have noticed already, section 9A makes provisions for the Special Court in lieu of a regular Civil Court and constitution and organisation of Courts except the Supreme Court and the High Court is within the competence of the Parliament as well as the State Legislature and once the Parliament has made the law, the same has to prevail. The learned counsel for the petitioner has made extraneous efforts to persuade us to see the unreasonableness of ousting the jurisdiction of the regular Civil Court and vesting the powers of a Civil Court in the Special Court, which is created under the Special Court (Trial of Offences Relating to Transac- tions in Securities) Act, for trial of offences referred to in sub-section (2) of section 3 of the Act. We, however ..... X X X X Extracts X X X X X X X X Extracts X X X X
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