9911796707
TMI Blog2002 (12) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as the Corporation ) under the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 (in short the U.P. Act ) on 6-1-2001 are maintainable in view of section 34(2) of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (in short the Act ). Factual position sans unnecessary details is as follows : Certificate was issued under the U.P. Act for recovery of certain dues from the appellant for its alleged failure to comply with the terms and conditions of loan granted to it; similar failure was alleged by three Directors and three guarantors. On 14-2-2001 Citation for recovery was issued by the Tehsildar, Varanasi, for recovery of the alleged dues as arrears of land revenue. appellant challenged the said action before the Allahabad High Court in CMWP No. 13738 of 2001 on the ground that after the enactment of the Act, the proceedings were not maintainable. Reliance was placed on the provisions contained under section 32 of the State Financial Corporation Act, 1951 (in short the Financial Act ) to contend that no other proceeding is permissible to be taken under the Act. Reference was made to sections 17 and 34 of the Act to substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was to do away with the cumbersome procedures involved for recovery and provisions are not inconsistent with any provision of the U.P. Act, which in terms of section 3(3) prohibits institution of a case for recovery of the sums due. Therefore, the High Court was justified in its conclusion. In any event, according to him, the procedures under the Act are in pari materia with those which can be taken under the Financial Act. So such a prescription has to be read into sub-section (2) of section 34 of the Act by application of the principle known as casus omissus and the deficiency, if any, can be reconciled by purposive interpretation by reading the said statute as a whole, and finding out the true legislative intent. In order to appreciate the rival submissions a few provisions throwing light on the controversy need to be noted. Act : "34. Act to have overriding effect. (1) Save as otherwise provided in sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. (2) The provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1) between any person referred to in that sub-section and the State Government or the Corporation, no arbitration proceedings shall lie at the instance of either party for recovery of any sum claimed to be due under the said sub-section or for disputing the correctness of such claim: Provided that whenever proceedings are taken against any person for the recovery of any such sum he may pay the amount claimed under protest to the officer taking such proceedings and upon such payment the proceedings shall be stayed and the person against whom such procee-dings were taken may make a reference under or otherwise enforce an arbitration agreement in respect of the amount so paid, and the provisions of section 183 of the Uttar Pradesh Land Revenue Act, 1901, or section 287-A, of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as the case may be, shall mutatis mutandis apply in relation to such reference or endorsement as they apply in relation to any suit in the civil court." Allahabad Bank s case ( supra ) did not specifically deal with section 34(2) of the Act. However certain observations made in the said judgment are of relevance : "20. We shall, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal is to adjudicate the liability of the defendant and then it has to issue a certificate under section 19(22). Under section 18, the jurisdiction of any other court or authority which would otherwise have had jurisdiction but for the provisions of the Act, is ousted and, the power to adjudicate upon the liability is exclusively vested in the Tribunal. (This exclusion does not however apply to the jurisdiction of the Supreme Court or of a High Court exercising power under article 226 or 227 of the Constitution). This is the effect of sections 17 and 18 of the Act. (p. 420)" Section 34 of the Act consists of two parts. Sub-section (1) deals with the overriding effect of the Act notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than the Act. Sub-section (1) itself makes an exception as regards matters covered by sub-section (2). The U.P. Act is not mentioned therein. The mode of recovery of debt under the U.P. Act is not saved under the said provision i.e. sub-section (2) which is of considerable importance so far as the present case is concerned. Even a bare r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess. Language of section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in N. Narasimhaiah v. State of Karnataka [1996] 3 SCC 88. In State of Karnataka v. Nanjudaiah [1996] 10 SCC 619 the period was further stretched to have the time period run from date of service of High Court s order. Such a view cannot be reconciled with the language of section 6(1). If the view is accepted it would mean that a case can be covered by not only clauses ( i ) and/or ( ii ) of the proviso to section 6(1), but also by a non-prescribed period. Same can never be the legislative intent. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well-settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
