9911796707
TMI Blog2009 (7) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... -1209 OF 2008, civil Appeal arising out of SLP (C) No. 24715 of 2008 - - - Dated:- 29-7-2009 - SINHA, S.B. AND GANGULY, ASOK KUMAR, JJ. JUDGMENT S.B. Sinha, J. Leave granted. INTRODUCTION Whether the High Court and/or this Court has the power to transfer a suit pending in a Civil Court situated in one State to a Debt Recovery Tribunal situated in another is the question involved herein. BACKGROUND FACTS We may notice the facts of the matter from Civil Appeal @ SLP (C) No.24715 of 2008. It arises out of a judgment and order dated 15th September, 2008 passed by a learned Single Judge of the High Court of Punjab and Haryana at Chandigarh in Transfer Application No.186 of 2008 whereby and whereunder the suit filed by the appellant and pending before the Civil Judge (Junior Division), Ludhiana was transferred to the Debt Recovery Tribunal-III at Mumbai. Some of the parties to the lis before us are the banks or financial institutions within the purview of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (1993 Act). The others are debtors of such banks or financial institutions. The parties hereto entered into diverse agreements i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day) regarding the contracts involving the present cases till 16.4.2008. Compliance U/O 39 R.3 CPC be made as per rules. Plaintiffs shall also be duty bound to get the service effected on defendants for date fixed Summons be also given dasti. The said order of status quo is said to have been communicated to the respondent on or about 8.4.2008. Respondent issued a notice dated 12.4.2008 upon the appellant terminating the pending derivative transaction. Appellant contends that termination of the said derivative transaction is in violation of the order of status quo passed by the learned Civil Judge on 5.4.2008. Appellant responded to the said notice calling upon it to withdraw the same. On or about 15.4.2008, the respondent-bank filed an application before the Debt Recovery Tribunal at Mumbai marked as OA No.122 of 2008 along with an interim application marked as Interim Application No.125 of 2008 for recovery of dues under the two remaining Foreign Exchange Derivative Contracts dated 13.7.2007. Meanwhile, the order of status quo passed on 5.4.2008 was extended by the learned Civil Judge by an order dated 16.4.2008 till 23.4.2008. In the original application filed by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No.186/2008 as also stay of the proceedings before the Debt Recovery Tribunal, Mumbai in OA Nil of 2008 (Lodging No.270). The parties shall file written submissions before the next date of hearing. ISSUES ARISING In the background of these facts, the following questions that arise for our consideration are: (I). Whether the High Court/Supreme Court has the power to transfer a suit from a Civil Court to the DRT, keeping in mind, a. The effect of a transfer from the Civil Court to the DRT is to oust the jurisdiction of the civil court which cannot be done without express statutory provisions. b. Proceedings before DRT is sui generis totally different from the procedure in a Civil Court. c. Power of transfer under CPC (Sections 22, 23, 24 and 25) is inapplicable as these sections apply in a case where the transfer is from one Court to another DRT being not a Court. d. The power to transfer under the DRT Act is restricted to cases filed by Banks that were pending on the date when the Act came into force and in respect of those cases in which DRT has jurisdiction. (II). Whether the decision of this Court in Indian Bank v. ABS Marine Products (P) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me into force. e) This Court in Indian Bank v. ABS Marine (supra) having categorically held that no suit could be transferred from a Civil Court to a Debt Recovery Tribunal as a counter claim, keeping in view the scheme contained in the said Act and the Code, the contrary view taken in Ranjan Chemicals, (supra) cannot be held to be good law. f) The provision of Section 23(3) of the Code being a procedural provision, as has been held by this Court in Durgesh Sharma v. Jayshree, [(2008) 9 SCC 648], High Court cannot be said to have any power/jurisdiction to transfer a suit pending in a Civil Court, which is subordinate to it, to a Tribunal which is not subordinate to the High Court. g) Ranjan Chemicals having failed to appreciate that transfer of a suit from the Civil Court to the Debt Recovery Tribunal without plaintiffs' consent resulted in defeating the plaintiff's statutory right to approach the Civil Court and furthermore resulted in ouster of the jurisdiction thereof, neither of which could be ordered or directed without any specific empowering provision in the statute. h) It is well settled legal position that jurisdiction of the Civil Court can only be ous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued that even if the power to transfer exists, in the facts and circumstances of this case and in the interests of justice, the same should not be exercised. o) This Court also should not exercise its jurisdiction under Article 142 of the Constitution of India as the said Act does not bar the jurisdiction of the Civil Court to entertain a civil case against a bank since the field is occupied by the statute and it is a settled law that power under Article 142 of the Constitution of India can be exercised only to prevent injustice and to do complete justice between the parties. Mr. Shyam Diwan and Mr. Ashok Desai, learned senior counsel appearing on behalf of the respondent, on the other hand, contended:- a) Definition of `debt' as contained in Section 2(g) of the Act means any liability which is claimed as due from any person by a bank during the course of any business activity undertaken by it and would bring within its purview any agreement for enforcement whereof the bank should have no option but to approach the Tribunal only. b) When a particular claim made by a bank is a `debt' within the meaning of the provisions of the Act, it must be determined or adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e existing procedure for recovery of debts due to the banks and financial institutions has blocked a significant portion of their funds in unproductive assets, the value of which deteriorates with the passage of time. The Committee on the Financial System headed by Shri M. Narasimham has considered the setting up of the Special Tribunals with special powers for adjudication of such matters and speedy recovery as critical to the successful implementation of the financial sector reforms. An urgent need was, therefore, felt to work out a suitable mechanism through which the dues to the banks and financial institutions could be realized without delay. In 1981, a Committee under the Chairmanship of Shri T. Tiwari had examined the legal and other difficulties faced by banks and financial institutions and suggested remedial measures including changes in law. The Tiwari Committee had also suggested setting up of Special Tribunals for recovery of dues of the banks and financial institutions by following a summary procedure. The setting up of Special Tribunals will not only fulfill a long-felt need, but also will be an important step in the implementation of the Report of Narasimham Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution). Chapter IV deals with the procedure of the Tribunals. Section 19 provides for an application by a bank or financial institution to recover any debt from any person. Sub-section (8) of Section 19 enables a defendant to set up, by way of counter-claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant in addition to his right of pleading a set-off under sub-section (6). Sub-section (9) provides that such a counter claim shall have the same effect as a cross-suit. Sub-section 22 of Section 19 empowers the Presiding Officer of a Tribunal to issue a certificate under his signature on the basis of an order of the Tribunal to the Recovery Officer for recovery of the amounts of debt specified therein. We may, however, notice that Section 19 of the Act was amended twice, - once by Act 1 of 2000 which came into force w.e.f. 17.1.2000 and the second time by Act 30 of 2004 which came into force on and from 11.11.2004. Section 22 provides for the procedure and powers of the Tribunal and Appellate Tribunal, sub-section (1) whereof reads as under: Section 22 - Procedure and Powers of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, or (b) any order of dismissal for default. An explanation is added to that definition which says a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. `Judge' has been defined under Section 2(8) to mean the presiding officer of a Civil Court. Section 2(14) defines an order to mean the formal expression of any decision of a Civil Court which is not a decree. Section 3 of the Code provides for hierarchy of courts in the following terms :- Section 3 - Subordination of Courts For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court. The Code recognizes different courts, the revenue court being one of them. Sub-section (2) of Section 5 provides that `revenue court' would not be civil court. Section 9 of the Code empowers the Civil Court to try all suits of civil nature excepting the suits of which their c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s due to Banks and Financial Institutions. It has wide powers. It may determine all the issues relating to or connected with the recovery of debt due to banks and financial institutions. A fortiori all defences which can ultimately be raised before it by the borrowers for contesting a claim of the Bank or the Financial Institution can also be determined by it. Indisputably prior to amendments of the Act before 2000 and 2004, a plea of set off or counter-claim was not available to a debtor. The question as to whether a High Court had power to transfer a counter claim to the Debts Recovery Tribunal came up for consideration before Delhi High Court in Cofex Exports Ltd. vs. Canara Bank [AIR 1997 Delhi 355] wherein the High Court opined that Debt Recovery Tribunal is not a court but is a Tribunal having been created by a statute vested with a special jurisdiction to try only applications by banks or financial institutions to recover any debt. Although having regard to the provisions contained in clauses (a) to (b) of sub-section (2) of Section 22 of the Act it had all the trappings of a court but it was held not to be a court as such, opining: 38. For reasons more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e later holds only a summary inquiry guided by principles of natural justice as the Act provides. It was, thus, held that the Tribunal is inferior to that of the Civil Court. The Court summed up its conclusions, thus: 42. To sum up our answers to the questions referred to in para 7 above are:- 1. A suit the subject matter whereof lies within the jurisdictional competence of the Tribunal cannot be refused to be transferred by a civil court to the Tribunal merely because a cross suit or a counter claim has been filed or preferred before the civil court. 2. A cross suit or cross claim or a plea in the nature of set-off cannot be transferred to the Tribunal along with the suit with which it is associated and which is liable to be transferred to the Tribunal. 3. A plea of set-off raised in a suit filed by a bank or financial institution cannot be tried by Tribunal nor would it enable the suit being retained by civil court before it if the subject matter of suit lies within the jurisdictional competence of tribunal otherwise. One of the questions which would arise, thus, for our consideration is whether having regard to the amendment of Section 19 by rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be transferred to the Recovery Tribunal)? (2) What is the combined effect of Sections 18 and 31 and of the Act on pending proceedings? (3) Whether the pendency of suit No. 272/ 1985 filed by the debtor company against the Bank for specific performance and for perpetual and mandatory injunctions raising common issues between parties in both these suits was a sufficient reason for retention of the Bank's suit No. 410/85 on the original side of the High Court to be tried alongwith the Suit No. 272/85 filed by the debtor company? (4) Whether the suit No. 272/85 filed by the debtor company was, in substance, one in the nature of a counter-claim against the Bank and was one which also fell within the special Act by reason of Section 19(8) to (11) of the Act (as introduced by Amending Act 1/2000) and if that be so, whether it could still be successfully pleaded by the respondent-company that the pendency of the company's suit 272/85 was a ground for retention of Bank's suit No. 410/85 on the original side of the High Court? Applying the principles of purposive construction as well as having regard to the statements of objects and reasons of the Act, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the debtor- company that the company's suit 272/85 is liable to be retained in the civil Court and on account of the plea that the connected suit by the Bank 410/85 is also to be retained. Such a plea, as shown above, cannot be accepted. Thus, both the suits are suits falling within the Act. Therein the company approached the appellant Bank for certain credit facilities. However, by sanction advices the bank gave ad hoc sanction upto ₹ 5,00,000/-; whereas according to the bank, the company could utilize the said credit facilities but committed default in paying the amount of advance. The Bank filed an OA for recovery thereof. The Bank also sanctioned a middle term loan and certain other credit facilities but the sanctioned loan was not utilized. The company filed a suit for damages with interest. INDIAN BANK In that case, the following questions were raised : (i) Whether the subject-matter of the borrower's suit before the High Court and the Bank's application before the Tribunal were inextricably connected? (ii) Whether the provisions of the Debts Recovery Act mandate or require the transfer of an independent suit filed by a borrower against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that where the respective claims of the parties were not inextricably connected, the transfer of a suit to the Tribunal can be only on the basis of consent of the parties and not otherwise. The first question was, thus, answered in the negative. On the second question, the Court distinguishing the decision in Abhijit Tea Co. (P) Ltd. Ors. (supra) in regard to the question whether an independent suit of a defendant in the bank's application can be deemed to be a counter claim and can be transferred to the Tribunal, opined that the same would apply only where the following conditions are satisfied, in the following words: 25. Though there appears to be some merit in the first respondent's submission, we do not propose to examine that aspect. Suffice it to clarify that the observations in Abhijit that an independent suit of a defendant (in the bank's application) can be deemed to be a counterclaim and can be transferred to the Tribunal, will apply only if the following conditions were satisfied: (i) The subject-matter of the bank's suit, and the suit of the defendant against the bank, should be inextricably connected in the sense that decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. It is, therefore, clear that the suit filed by the first respondent against the Bank in the High Court for recovery of damages, being an independent suit, and not a counterclaim made in the application filed by the Bank, the Bank's application for transfer of the said suit to the Tribunal was misconceived and not maintainable. The High Court, where the suit for damages was filed by the Company against the Bank, long prior to the Bank filing an application before the Tribunal against the Company, continues to have jurisdiction in regard to the suit and its jurisdiction is not excluded or barred under Section 18 or any other provision of the Debts Recovery Act. The question came up for consideration again in Ranjan Chemicals (supra), wherein this Court, inter alia, held that having regard to the nature of the respective claims arising out of the loan transactions, the Court can exercise its inherent jurisdiction when it was just and proper to order a joint trial of the two causes as there is nothing in the Act to show that the Tribunal is prevented from entertaining the claim made by the borrower in his suit. Purporting to distinguish the decision in Indian Bank (supra), i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties. A Court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. In the light of our conclusion that the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the civil Court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified. PRECEDENTIAL VALUE The core question which would arise for our consideration is whether by reason of a transfer the jurisdiction of the civil court can be taken away o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the DRT would not arise. In Ranjan Chemicals (supra), therefore, in our opinion, the Court having not posed unto itself the aforementioned question, should have considered the decision of a coordinate bench in Indian Bank (supra) in that perspective. It must furthermore be noticed that Indian Bank (supra) was clarifying Abhijit Tea (supra). Conditions laid down in paragraph 25 of Indian Bank (supra) must also, therefore, be read in that context as otherwise, the same would lead to misreading and misinterpreting the judgment. We may notice some decisions of this court as regards the binding nature of the precedents of a coordinate Bench. In Union of India v. Raghubir Singh, [ (1989) 2 SCC 754 ], this Court has held :- 27. [...] It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom a Court to Tribunal. The respondents, therefore, do not and cannot rely on any of the provisions of the DRT Act for contending that the Court had any other power to direct transfer. In Indian Bank (supra) this court noted thus: 15. [...] There is no provision in the Act for transfer of suits and proceedings, except section 31 which relates to suit/proceedings by a bank or financial institution for recovery of a debt. It is evident from section 31 that only those cases and proceedings (for recovery of debts due to banks and financial institutions) which were pending before any court immediately before the date of establishment of a tribunal under the Debts Recovery Act stood transferred, to the tribunal In Raghunath Rai Bareja Anr. v. Punjab National Bank Anr, (2007) 2 SCC 230 this court opined: 19. [...] Apart from section 31, there is no other provision for transferring a suit or other proceedings pending before any other court to tribunal. [...] 28. [...] whatever power there are of transfer of proceedings to the tribunal are contained in section 31 of the RBD Act, and no transfer is permissible dehors section 31. Therefore there exists no expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of transfer can be made thereunder, stating: ...If the case is covered by Section 25 of the Code, it is only that section which will apply for both the purposes, namely, for the purpose of making application and also for the purpose of effecting transfer. On the contrary, reading of sub- section (3) of Section 23 of the Code in the manner suggested by the learned counsel for the respondent - wife would result in allowing inroad and encroachment on the power of this Court not intended by Parliament. Section 23, therefore, in our considered view, must be read subject to Section 25 of the Code. The decisions taking a contrary view do not lay down correct law. We, therefore, overrule them... WHETHER TRIBUNAL IS A CIVIL COURT The terms Tribunal , court and the civil court have been used in the Code differently. All courts are Tribunals but all Tribunals are not courts . Similarly all civil courts are courts but all courts are not civil courts. It is not much in dispute that the broad distinction between a court and a Tribunal is whereas the decision of the court is final the decision of the Tribunal may not be. The Tribunal , however, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted under statutes, like Bengal, Agra and Assam Civil Courts Act, 1887. Pecuniary and territorial jurisdiction of the civil courts are fixed in terms thereof. Jurisdiction to determine subject matter of suit, however, emanates from Section 9 of the Code. We would revert to the interpretation of the said provision vis-`-vis the provisions of the Act a little later. In P. Sarathy v. State Bank of India [(2000) 5 SCC 355], this Court opined that although there exists a distinction between a court and a civil court, but held that a Tribunal which has not merely the trappings of a court but has also the power to give a decision or a judgment which has finality and authoritativeness will be court within the meaning of Section 14 of the Limitation Act, 1963. In the context of Section 29(2) of the Limitation Act, 1963 the term `court' is considered to be of wide import. However, there again even for that purpose exists a distinction between a court and the civil court. In P. Sarathy v. State Bank of India, (Supra) this Court has held :- 12. It will be noticed that Section 14 of the Limitation Act does not speak of a civil court but speaks only of a court . It is not nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout any discussion. We are in agreement with the submissions of learned senior counsel Dr. Singhvi and Shri Rakesh Dwividi that those decisions are clearly distinguishable on the facts of each case as they relate to transfer from one Tribunal to another and not from a civil court to a Tribunal. It has also been pointed out by Mr. Dwividi that reliance placed by Mr. Desai on the cases cited by him and referred to herein is misleading as the Head Notes of those cases are misleading. He argues that though the SCC refers to Section 25 of the CPC therein in regard to the power of transfer of the court, however, the text of the judgments is silent in regard thereto. We may hereinafter may make reference to the Head Notes of a few of them. The SCC Head Note to Kahlon (supra) reads as under: Civil Procedure Code, 1908 - S. 25 - Motor accidents claim case filed by petitioner in town of place of work - due to 100 per cent disablement due to accident, petitioner quitting job and shifting back to home town - transfer of claim case to home town of petitioner, allowed Similarly, the SCC Head note of Mohan Singh (supra) reads: Civil Procedure Code, 1908 -- S. 25 -- Motor accident claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... videntiary value of the confession of co-accused and applied them to the case of retracted confession. It appears that the learned Judges went by the headnote in the AIR6 which opens up with the sentence: (AIR p. 159) The confession of an accused person.... However, in the text of the judgment it is crystal clear that the entire discussion and the statement of law was only with reference to the confession of the co-accused. While clarifying that the confession of the co- accused is not evidence in the ordinary sense of the term as pointed out by the Privy Council, this Court observed in Kashmira Singh case that such a confession cannot be made the foundation of a conviction and can only be used in support of other evidence. 22. In Chimanlal case the learned Judges, after referring to the headnote portion of Kashmira Singh in AIR 1952 SC 159 proceeded to apply the test applicable to the confession of the co-accused to a case of retracted confession. 23. In view of the error in comprehending the scope of the decision in Kashmira Singh case the decision in Chimanlal case falls close to the category of decisions rendered per incuriam. Reliance has also been placed on a deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into. Taking recourse to such proceedings would be an exception. Entire focus of the proceedings before the Debt Recovery Tribunal centers round the legally recoverable dues of the bank. Should we adopt the principle of purposive interpretation so as to hold that the DRT would be a Civil Court? We have noticed hereinbefore that Civil Courts are created under different Acts. They have their own hierarchy. They necessarily are subordinate to the High Court. The appeals from their judgment will lie before a superior court. The High Court is entitled to exercise its power of revision as also superintendence over the said courts. For the aforementioned purpose, we must bear in mind the distinction between two types of courts, viz., civil courts and the courts trying disputes of civil nature. Only because a court or a tribunal is entitled to determine an issue involving civil nature, the same by itself would not lead to the conclusion that it is a civil court. For the said purpose, as noticed hereinbefore, a legal fiction is required to be created before it would have all attributes of a civil court. The Tribunal could have been treated to be a civil court provided it could pass a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case. Had the Parliament intended to make the Tribunals civil courts, a legal fiction could have been raised. There are statues like the Andhra Pradesh Land Grabbing Act where such a legal fiction has been raised. {See V. Laxminarasamma v. A. Yadaiah (Dead) and Ors., [2009 (3) SCALE 685]}. Whereas the doctrine of purposive construction is a salutary principle, the same cannot be extended to a case which would lead to an anomaly. It can inter alia be resorted to only when difficulty or doubt arises on account of ambiguity. It is to be preferred when object and purpose of the Act is required to be promoted. For the foregoing reasons, we are of the opinion that the decisions of this Court laying down the principles of purposive interpretation, whereupon strong reliance has been placed by Mr. Divan, viz., New India Assurance Company Ltd. v Nusli Neville Wadia and Another [(2008) 3 SCC 279], Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Another [(2007) 6 SCC 528], South Eastern Coalfields Ltd. v. CCET, MP [(2006) 6 SCC 340] and Uco Bank v. Rajinder Lal Capoor [(2008) 5 SCC 257], cannot have any application. On the other hand, if the principles of purposive inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be initiated by the bank b) Some species of the remedy as provided therein would be available therefor. c) In terms of sub-section (11) of Section 19, the bank or the financial institution is at liberty to send a borrower out of the forum. d) In terms of the provisions of the Act, thus, the claim of the borrower is excluded and not included. e) In the event the bank withdraws his claim the counter-claim would not survive which may be contrasted with Rule 6 of Order VIII of the Code. f) Sub-section (9) of Section 19 of the Act in relation thereto has a limited application. g) The claim petition by the bank or the financial institution must relate to a lending/borrowing transaction between a bank or the financial institution and the borrower. h) The banks or the financial institutions, thus, have a primacy in respect of the proceedings before the Tribunal. i) An order of injunction, attachment or appointment of a receiver can be initiated only at the instance of the bank or the financial institution. We, however, do not mean to suggest that a Tribunal having a plenary power, even otherwise would not be entitled to pass an order of injunction or an interim orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a `Court' and is not a persona designate it is not a Civil Court for the purpose for the provisions of S. 115 of the CPC. Therefore, against an interim order of the Rent Control Court no revision petition will lie. We are not considering whether an appeal will lie against the interim order in question or whether a petition under Art. 227 of the Constitution is maintainable. In M/s. Brooke Bond India Ltd. v. Union of India and others, [AIR 2001 AP 526 ] the Andhra Pradesh High Court has held:- The contention urged by the counsel for appellant that the Railway Claims Tribunal is a civil Court cannot be accepted. Merely because Section 18(3) of the Act provides that the Claims Tribunal, for the purpose of discharging the functions under the Act, shall have the same powers as are vested in the civil Court under the Code of Civil Procedure, 1908 and S. 25 provides that the proceedings before the Tribunal shall be deemed to be `judicial proceedings' as contemplated under Sections 193, 210 and 228, IPC, they do not make the Railway Claims Tribunal a `Civil Court'. In Devendra Somabhai Naik v. M/s. Accurate Transheet Pvt. Ltd. [AIR 2003 Gujarat 141] the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CPC. All suits of civil nature are triable by a Court unless cognizance of a particular kind of suit is expressly or impliedly barred. There are certain kinds of suits which are triable by revenue Courts or Provincial or Presidencies Small Cause Court. The subordination of the Courts is determined under Section 3, CPC on the basis of the provisions of Code of Civil Procedure applicable to it having regard to the provisions contained in Bengal, Agra and Assam Civil Courts Act. In Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd.,[ (2007) 6 SCC 236 ], this Court has held :- 76. Section 31 of the RDB Act clearly refers to transfer of every suit or other proceeding pending before any court . The word court , in the context of the RDB Act, signifies civil court . It is clear that the Registrar, or an officer designated by him or an arbitrator under Sections 61, 62, 70 and 71 of the APCS Act, 1964 and under Section 91 and other provisions of Chapter IX of the MCS Act, 1960 are not civil courts . 77. In Harinagar Sugar Mills v. Shyam Sundar Jhunjhunwala this Court held: (AIR p. 1680, para 32) By courts' is meant courts of civil judicature and b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermine all disputes of civil nature unless the same is barred expressly by a statute or by necessary implication. Although some arguments have been advanced before us whether having regard to the provisions of Sections 17 and 18 of the Act the civil court jurisdiction is completely ousted, we are of the view that the jurisdiction of the civil court would be ousted only in respect of the matters contained in Section 18 which has a direct co-relation with Section 17 thereof, that is to say that the matter must relate to a debt payable to a bank or a financial institution. The application before the Tribunal would lie only at the instance of the bank or the financial institution for the recovery of its debt. It must further be noted in this respect that had the jurisdiction of the civil courts been barred in respect of counterclaim also, the statute would have said so and Sections 17 and 18 would have been amended to introduce the provision of counterclaim. We may in this context place on record the following observations from Indian Bank (supra): 14. Section 9 of the Code of Civil Procedure provides that the courts shall have jurisdiction to try all suits of a civil nature, except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the civil court has not been ousted. The civil court, in the instant case, was concerned with the rival claims of the parties as to whether one party has illegally been dispossessed by the other or not. Such a suit, apart from the general law, would also be maintainable in terms of Section 6 of the Specific Relief Act, 1963. In such matters the court would not be concerned even with the question as to the title/ownership of the property. Therein five principles were laid down stating :- 22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suits before the civil courts. It is only for the claims of the banks and the financial institutions above the aforementioned sum that they have to approach the Debt Recovery Tribunal. It is also without any cavil that the banks and the financial institutions, keeping in view the provisions of Sections 17 and 18 of the Act, are necessarily required to file their claim petitions before the Tribunal. The converse is not true. Debtors can file their claims of set off or counter-claims only when a claim application is filed and not otherwise. Even in a given situation the banks and/or the financial institutions can ask the Tribunal to pass an appropriate order for getting the claims of set-off or the counter claims, determined by a civil court. The Tribunal is not a high powered tribunal. It is a one man Tribunal. Unlike some Special Acts, as for example Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 it does not contain a deeming provision that the Tribunal would be deemed to be a civil court. The liabilities and rights of the parties have not been created under the Act. Only a new forum has been created. The banks and the financial institutions cannot approach the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not repealed it expressly. The decision further lays down that for examining whether the two statutes cover the same subject matter, what is necessary to examine is the scope and the object of the two enactments, and that has to be done by ascertaining the intention in the usual way and what is meant by the usual way is nothing more or less than the ascertainment of the dominant object of the two legislations. ... .... .... 48... The legislative intent is clear. Since, further, the Parliament had enacted the later statute knowing fully well the existence of the earlier statute and yet it did not expressly repeal it, it will be presumed that the Parliament felt that there was no need to repeal the said statute. However, in that case itself it has been held that repugnancy and inconsistency is synonymous. Furthermore in a case of this nature where the banks itself have filed applications for transfer, the jurisdiction of the civil court must be presumed. Submission of Mr. Desai that this Court can direct the Tribunal to follow the provisions of the Code, in our opinion, cannot be accepted. Such a direction would be in the teeth of the provisions of the Act. Reliance pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C)] noted that to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right, is a very different thing from regulating procedure When a person files a civil suit his right to prosecute the same in terms of the provisions of the Code as also his right of appeal by way of first appeal; second appeal etc. are preserved. Such rights cannot be curtailed, far less taken away except by reason of an express provision contained in the statute. Such a provision in the statute must be express or must be found out by necessary implication. In Garikapati Veeraya v. N. Subbiah Choudhry, [ 1957 SCR 488 ], this Court opined :- 23. From the decisions cited above the following principles clearly emerge: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s one legal proceeding and further being a vested right such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences.... A civil suit may also be maintainable before Original Side of the High Court in terms of the statutes under which the High Courts are constituted or in terms of the provisions of the Letters Patent. An intra court appeal is available against a decree passed by a learned Single Judge of a High Court in a suit filed before it. In the event, however, if a civil suit is transferred to the Debt Recovery Tribunal, the plaintiff would be deprived of his right in relation to the procedural mechanism as contained in the Code as also the Evidence Act. His right of appeal would also stand curtailed. While exercising the power of transfer, the High Court and this Court would thus be curtailing the right of a suitor indirectly which could not be done directly. It clearly establishes the Parliamentary intent that only civil suits are subject matter of inter State transfer from one civil court to another civil court. If such a power is exercised, all the rights of the plaintiff remain intact, no right is taken away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. We are therefore of opinion that the Additional Munsif had no inherent power to pass the order appointing a Commissioner to seize the plaintiff's account books. The order appointing Sri Raghubir Pershad as Commissioner for this purpose was therefore an order passed without jurisdiction and was therefore a null and void order. The said decision, we are not oblivious, has been distinguished by this Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527] in a case for grant of injunction stating that Rules 1 and 2 of Order XXXIX of the Code of Civil Procedure is not exhaustive, stating: 22. In the above case, this Court did not uphold the order of the civil court, not coming under the provisions of Order 26, appointing a commissioner for seizing the account books of the plaintiff on the application of the defendants. The order was held to be defective not because the Court had no power to appoint a commissioner in circumstances not covered by Section 75 and Order 26, but because the power was exercised not with respect to matters of procedure but with respect to a matter affecting the substantive rights of the plaintiff. This is clear from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record that in Durgesh Sharma (supra) this Court has clearly held that the provisions of Sections 22 to 25 of the Code of Civil Procedure are exhaustive in nature. If that be so, inherent power of the court could clearly not be invoked. Reliance has also been placed on M/s. Ram Chand and Sons Sugar Mills Private Ltd. v. Kanhayalal Bhargava and Others [AIR 1966 SC 1899] wherein it has been held: Having regard to the said decisions, the scope of the inherent power of a court under Section 151 of the Code may be defined thus: The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions have their own remedies. As adequate remedy is available to them in law, ordinarily, the same should be directed to be followed. A case of very exceptional nature must be made out for invoking the extraordinary constitutional jurisdiction of a court. One of the contentions which have been raised is whether the transactions under derivative agreements would come within the purview of the DRT Act. Of course, a tribunal will have a jurisdiction to decide the issue being a jurisdictional issue. Furthermore, the company has alleged fraud and misrepresentation. This Court in Mardia Chemicals Ltd. and Others v. Union of India [(2004) 4 SCC 311] has also held that even in such an event, the jurisdiction of the civil court can be invoked. Several other issues of complicated nature may arise before the civil court. We, therefore, are of the opinion that it may not be a fit case where we should exercise our jurisdiction under Article 142 of the constitution of India. DIRECTION However, we make it clear that having regard to the pleadings of the parties as also the purpose and object for which the Tribunal has been constituted, it should proceed to dispose of the bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
