9911796707
TMI Blog2002 (7) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavits, directing disclosure of the amount received by the said respondents from different branches; (v) injunction restraining the respondents No. 53 to 57 from demanding any money from the petitioner in relation to the alleged void Letters of Credits (LCs) purported to have been negotiated by them through unjustified and fraudulent transactions; or (vi) to demand any money or in any way dealing with or to exercise any right, title or interest in respect of any of the LCs issued by the petitioner's branches including Bag Bazar Branch; (vii) injunction restraining the respondents No. 53 to 57 from utilizing the money received under any such LCs including those mentioned in Annexure C-2 of the plaint; (viii) direction upon the respondents No. 53 to 57 to deliver all the invalid LCs including those mentioned in Annexure C-2 of the plaint, (ix) direction to furnish security of ₹ 117 Crore; (x) injunction restraining them from receiving, crediting or withdrawing or dealing with any of their accounts maintained with and/or fund lying to their credit so far as the respondents No. 1 to 52 are concerned with the respondents No. 53 to 57; and (xi) the respondents No. 53 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench, which was pleased to set aside the order of status quo. The plaintiff challenged the order of the Division Bench by way of special leave petition before the Apex Court. By an order dated 12th July, 1999, the Apex Court disposed of the said appeal after hearing the plaintiff and the defendants No. 53 to 57, dispensing with service upon the other defendants, excepting the said five banks, setting aside the order of the Division Bench, remitting the matter to the learned single Judge for disposing of the interlocutory application on merit. The proceedings before the DRT initiated by the said five banks (defendants No. 53 to 57), were stayed pending, disposal of the interlocutory application. Submission on behalf of the plaintiff/petitioners : 3. Mr. Depankar Ghosh, learned counsel for the plaintiff/petitioner, made elaborate submission pointing out the manner in which the fraud was perpetuated. It is alleged that one of the signatories was computer personnel, who had nothing to do with banking operation. The other officers though functioning in the operation sector of SBI, but none of them were authorized signatories for opening LCs, which is apparent from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further contended that the said five banks being negligent in their own sphere of performance, they cannot claim the amount out of the LCs as result of banking transaction. These LCs do not constitute debt, which can be recovered through the Debt Recovery Tribunal. Inasmuch as, no money is payable under the said LCs by the plaintiff. Since, in this case, it is the validity of the LCs itself, which is being challenged. It does not fall within the scope and ambit of the decision cited on behalf of the respondents, which are related to the transaction underlying the issue. He seeks to distinguish those decisions on the ground that a debt must arise out of business activities undertaken by bank. Such business activity, if falsified and forged into existence, is not legitimate banking activity undertaken by the bank. 3.2. The question whether it is a debt or not is not required to be definitively decided in the present application since it is a question on merit which should be left open to be decided at the hearing. Therefore, any attempt to recover any money out of such LCs is not a suit for recovery of debt within the meaning of DRT Act. He has pointed out that the expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, Section 17 creates an exclusive jurisdiction in respect of debts due to banks and financial institutions, as defined in Section 2(g) of the said Act, in favour of the Tribunal constituted thereunder. Section 18 excludes the jurisdiction of all other Courts in respect of such matters excepting the jurisdiction exercised by High Courts under Articles 226 and 227 of the Constitution of India. By reason of Section 34 of the said Act, the provisions of the Act has been given overriding effect against all other law for the time being in force. This is reinforced by the incorporation of Section 31, whereby all matters pending in any Court excepting appeals stood transferred to the Tribunal as soon it is constituted and the records thereof are to be transmitted forthwith. He had elaborated the scope and manner of the expression debt relying upon Black's Law Dictionary, 6th Edition, page 4003. According to him, a fraudulent debt is also included in debt. In support, he had relied on Athmanathaswami Devasthanam v. Gopalaswami, [1964]3SCR763 . He has also relied on the decision in ONGC v. Collector, Central Excise 1992 (2) SCC 432; United Bank of India v. Abhijit Tea Co. AIR2000SC295 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the jurisdiction to recover debts is exclusive to the Tribunal. He cited ITC Ltd. v. Debts Recovery Appellate Tribunal, AIR1998SC634 to contend that the Supreme Court had sounded caution regarding clever drafting. Creating illusion of cause of action, which are impermissible in law. Court has to find out the real basis, on which the cause of action is founded. Upon a true and fair reading of the plaint, in this case, it is crystal clear that the suit is primarily for recovery of debts. Submission on behalf of UTI Bank. Respondent No. 53 : 5. Mr. Gautam Chakrabarty, learned counsel appeared on behalf of the UTI Bank, respondent No. 53. Mr. Chakrabarty had led this Court through various documents and pointed out on the merit as well as various other matters. He relied on various articles of the said book. His argument may be summarized on the question of jurisdiction of DRT, fraud, ostensible authority and the meaning of the expression 'in course of employment'. He also relied on All India Tea and Trading Co. Ltd. v. United Bank of India 2001 (2) CLR 430 (Cal) and Vyasya Bank Ltd. v. Shankarlal Exports Private Limited, (2001)1CALLT194(HC) (DB). Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 265-6), he contended that fraud having been alleged against the employees of SBI to have been committed in usual course of employment, the SBI cannot escape its liability. He also relied on the Instruction of Reserve Bank of India for banks and banking operations (Clause 13A, V-7 page 274) to support his contention. 5.2. In support of his contention, Mr. Chakrabarty had relied upon the decisions in United Bank of India v. Debts Recovery Tribunal, [1999]2SCR496 ; State Bank of Bikaner and Jaipur v. Ballabh Das Company, AIR1999SC3408 ; J. U. Mansukhani Co. v. Presiding Officer, AIR2000Delhi103 , Vijaya Bank v. A.N. Tiwari, 1996 (1) Comp. LJ 64 (Del); Allahabad Bank v. Canara Bank, [2000]2SCR1102 ; Vijaya Bank v. Smt. Sulochana Devi Jalan, 2000 (2) Cal LJ 586 (paras 2 3); Vyasya Bank Limited v. Shankarlal Exports Limited, (2001)1CALLT194(HC) ; United Bank of India, Calcutta v. Abhijit Tea Company Pvt. Ltd. AIR2000SC2957 and Union of India v. Delhi High Court Bar Association [2002]2SCR450 . Submission on behalf of Centurion Bank, Respondent No. 57 : 6. Mr. Sudipto Sarkar, learned counsel, appeared on behalf of the respondent No. 57, Centurion Bank Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a v. Abhijit Tea Company, AIR2000SC2957 . He also relied on ONGC v. Collector, Central Excise 1992 (2) SCC 432 and ONGC v. Collector of Central Excise 1995 (4) SCC 541. He had also referred to Section 41 of the Specific Relief Act. According to him, defence in the nature of counter claim is also a subject matter to DRT. Ostensible authority of employee, if disputed, will not affect third party liability. (Morgan Stanley, (1994)4SCC225 (supra)). Submission on behalf of Respondents No. 46, 47 and 48 : 8. Mr. Sil, representing the respondents No. 46, 47 and 48, supported the other Counsel for the defendants and adopted their submission. However, he confined himself with regard to the alleged fraud and sought to defend the respondent Nos. 46, 47 and 48. It would not be necessary now to deal with the same again, since it would be an exercise of unnecessary repetition. Submission on behalf of Madhumita Group of Companies : 9. Mr. Aninda Mitra, learned counsel appearing on behalf of Madhumita Group of Industries, had addressed the Court on merit, particularly, with regard to the alleged fraud as against his clients. We are not concerned with the same a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Law of Bankers Commercial Credits, 6th Edition, Page 138-9 by H.C. Gutteridge Mourice Megrah and Tannan's Banking Law and Practice in India, Volume, 1. 20th Edition, page 716 relating to precaution by banker negotiating a bill under a Letter of Credit. He also relied on 27 LLR 50 (LLoyd's List Law Reports). He also relied on United Commercial Bank v. Bank of India, [1981]3SCR300 , which followed LLoyd's properties. According to him, bank is under a duty to scrutinize the document. It has to satisfy about the requirements. He also addressed the Court on the extent of liability under an invalid LC. In support, he relied on Thomas Walker v. Auber George Janes 1865 C LR (1) PC 50. On the question of decree on admission, Mr. H. Mitra assisting Mr. Ghosh had relied on Uttam Singh Duggal v. UBI, AIR2000SC2740 , Order 8 Rule 5(1) CPC, Order 12 Rule 6, CPC. 10.1. Mr. Ghosh has contended that when fraud is involved, Civil Court is the only forum. It cannot be decided by DRT. So is the case, if it is a question of nullity. The negotiating bank did not acquire any right under a fraudulent document. LC is issued against shipping documents. But, in this case there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Counsel had consumed much time to push through their respective contentions. In fact, elaborate argument was advanced by the respective Counsel with regard to the maintainability of this proceeding before this Court viz. jurisdiction of this Court. It is the primary ground on which the said five banks have banked upon to get this application dismissed. At the same time. Mr. Ghosh had insisted upon this point and attempted to establish that this suit is maintainable before the Court, viz. this Court has jurisdiction. Counsel for the respective parties addressed the Court on the question of maintainability/jurisdiction for the purpose of success of their respective contention. 11.1. If this question is not gone into, it would not be possible to decide, as to whether the reliefs claimed in this application could be granted or not. Since this question has been elaborately argued, there is no difficulty in deciding this question in this application. That apart, it is the basic foundation on which the relief could be had by the plaintiff, even on this application. Therefore, without deciding this question, this application cannot be decided. Therefore, by consent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 41(b). The injunction restraining the respondent Nos. 53 to 57 from proceeding with the case before the DRT, does not fall within the scope of Section 41(b) as claimed herein. On the other hand, it is a question as to whether this Court had jurisdiction or not. If the DRT has exclusive jurisdiction and this Court ceases to have jurisdiction, in that event, it is not a question of granting injunction restraining the respondent Nos. 53 to 57 from proceeding with the same. But it is a case whether this Court has jurisdiction to proceed with or not. if it has jurisdiction, in that event, it can very much grant the injunction. If it has no jurisdiction, it cannot do so. Even if it is assumed that Section 41(b) applies, still then DRT as such is not a Court subordinate to this Court. It does not fall within the hierarchy of the Courts as provided in the Bengal, Agra and Assam Civil Courts Act, 1887. The Tribunal constituted under the DRT Act is not a Court. It is a Tribunal having the trappings of a Court. A Tribunal with trappings of Court cannot be equated with a Court as is understood from the expression Court . A Court is a body established by law for the administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt by the Constitution, for exercising superintendence over all Courts and Tribunals subordinate to it. It makes a distinction between Courts and Tribunals and brings within its sweep both Courts and Tribunal. Therefore, subordination of Tribunal under Article 227 of the Constitution subject to power of superintendence is not a subordination of a Court within the meaning of Section 41(b) of SR Act. Therefore, this Court cannot stay further proceedings pending before a Tribunal in exercise of its jurisdiction envisaged under Section 9 of the Code of Civil Procedure and/ or by reason of Clause 12 of the Letters Patent as the case may be. 13.2. Clause 12 of Letters Patent does not stand on a footing different from Section 9 of CPC so far as the jurisdiction of this Court in respect of civil matters are concerned. In any event, the jurisdiction of Clause 12 is an original jurisdiction and as such there is no question of subordination of any Court on the question of hierarchy, section 24 and 25 of this Code also deals with Courts and not Tribunals. in any event, the CPC is not applicable to tribunal; as such it has limited application by reason of specific provision provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit in such jurisdiction until and unless it exercises its jurisdiction under Article 226 or 227, it is not a Court superior to DRT. In other words, DRT or the Appellate Tribunal constituted under the DRT Act is not sub-ordinate to this Court when it exercises the co-ordinate jurisdiction under the Clause 12 of the Letters Patent. Therefore, in the present case, DRT is not a Court sub-ordinate to the High Court exercising co-ordinate jurisdiction under Clause 12, as contemplated in Section 41(b) of the Specific Relief Act, 1963. 13.4. In Cotton Corporation of India Limited v. United Industrial Bank Limited [1983]3SCR962 , it was held that no injunction to restrain a party from enforcing any claim in any forum or from relying on or giving effect to the Bills for the purpose of any such or other proceedings including winding up proceedings under the Companies Act, 1956 cannot granted Section 41(b) of the Specific Relief Act must receive such interpretation as would advance the intendment and thwart the mischief, it was enacted to espouse, and to keep the path of access to justice through Court unobstructed. The legislature took notice of all the judicial interpretations of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the definition debt defined in Section 2(g) of the DRT Act. If it comes within a transaction undertaken by banks, financial institutions during the course of any business activity and the same is legally recoverable. Then it is a debt, which is subject matter of the DRT Act. Now it is alleged that it was not in usual course of banking business and was outside it. It is also alleged that the LCs issued are null and void. It had also gone to the extent of describing the transaction as fraudulent. It has been so spelt out in the pleadings in relation to G.A. No. 4166 of 1998, it might not have been specifically spelt out in the plaint. which, however, pleaded the hints about it while pleading in detail in the reply. According to rules of pleading, when fraud is pleaded, the detail of fraud is to be disclosed in the plaint itself in view of Order 6, Rule 4, IPC. Be that as it may, it is not necessary to go into such question. As mentioned hereinbefore, the claim that has been sought to be achieved through the prayers made in the plaint are all limited to and centres round the LCs. which are in dispute, particularly, in between the SBI and the respondent No. 53 to 57. Similarl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter claim is a claim counter to the claim of the plaintiff related to the suit in between the parties and the subject matter involved. Counter claim cannot travel beyond the scope and limit of the suit with which it is concerned. It cannot bring about something, which is completely foreign to the suit. Similar view was taken in Ram Prayare Singh v. 1st Additional District Judge, Gorakhpur (1997) 3 AWC 781 : 1997 (30) All ER 279 and Sudhir Kumar Awadhawi v. Fourth Additional District Judge, Sajahanpur (1996) 28 All ER 209. 14.3. Let us now examine, having regard to the facts and circumstances of this case, as to how far the contention raised by Mr. Ghosh can be acceded to as discussed above. The claims and reliefs sought for in the suit relates to the same LCs. On the basis of such LCs, the respondent No. 53 to 57 are seeking the relief against the SBI, SBI is also seeking the relief against respondents 53 to 57 in respect of the same LCs. denying its liability thereunder. In fact, it appears that the respondents No. 53 to 57 are seeking to enforce the liability of SBI under the LCs. Such liability is being sought to be denied by SBI in the present suit and seeks to prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it is disputed by the plaintiff that has to be decided by the Tribunal, which is within its scope on the simple distinction that It is not legally recoverable. If any dispute is so raised, the provisions made in the DRT Act cannot be made redundant. In the garb of such a distinction, the Court can assume jurisdiction, when its jurisdiction is specifically and expressly barred by reason of Section 18 of the DRT Act and exclusive conferment of jurisdiction on the DRT with regard thereto. Can allegation of fraud make a distinction? : 15. Mr. Ghosh has claimed that the debt alleged is a fraudulent one. As such it cannot come within the definition of debt. He had also contended that SBI is not responsible or liable for the LC signed by its employees, who were not authorised to do so, if such LCs have been issued by persons without authority, it cannot be enforced. He relied on Ruben Ladenburg v. Great Flngal Consolidated 1906 AC 439 (HL) : 1904 All ER 461; Credit Bank Cassel Gmbu v. Schenkers Limited (1927) 1 KB 826:1927 All ER 421 at page 429-430; South London Greyhound Race Course Limited v. Wake 1930 All ER 496; The Secretary, Nagunery Peace Memorial Co-operativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable, it is not enough that the employment merely afforded the servant or the agent an opportunity of committing the wrongful act of his servant or agent done within the scope or course or the servant or agent's employment, even if the wrongful act amounted a crime; (iii) there is no difference in the liability of a muster for a wrong, whether fraud or any other wrong committed by a servant in the course of his employment, and it is a question of fact in each case whether it was committed in the course of employment. 15.4. Thus, the question is now raised in this case is a matter, which relates to the merit depending on the facts, which are to be gone into. Until this Court holds that this Court has jurisdiction, it cannot examine the same. 15.5 Fraudulent debt in Black's Laws Dictionary has been defined as a debt created by fraud. Such a debt implies confidence and deception. It implies that it arose out of a contract, express or implied, and that fraudulent practices were implied by the debtor by which the creditor was defrauded, It had also defined debt as a sum of money due by certain and express agreement. A specific sum of money owing to one person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in force; iv) in cash or otherwise whether secured or unsecured or assigned or whether payable under a decree or order of any Civil Court or any arbitration award or otherwise or under a mortgage; and (v) subsisting on and legally recoverable on the date of application. 15.8 As we have seen that debt includes fraudulent debts. Whether the debt is fraudulent or not can very well be ascertained before the DRT. Even if it is alleged that the debt is fraudulent, it does not take away the jurisdiction of the DRT. Neither it creates a jurisdiction to a Court, the jurisdiction whereof is otherwise barred by reason of Section 18. Admittedly, it is a liability as in this case of defendant No. 53, to 57 towards SBI. At the same time, it is a liability of SBI towards the respondent No. 53 to 57 respectively the proceedings before DRT. Admittedly, each of these respondent No. 53 to 57 and SBI are either banks or financial institutions. The LCs were issued during the course of business activity undertaken by the SBI, Even if it is said that the LCs were issued fraudulently and SBI may not have undertaken this exercise during the course of its business, but it cannot be denied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability (inclusive of interest), which is claimed as due from any person by a bank etc. At the end, it had included an award of arbitration or under a mortgage. Thus, it had widened the scope in case of a mortgage. It is open to plead that there was no mortgage and that the mortgage was fraudulent or otherwise it might also include a defence by way of counter claim that the deed of mortgage may be delivered of and be cancelled. Therefore, none of the prayers made in this suit, can be said to be outside the scope of the said DRT Act. Whether this Court has jurisdiction :-- 16. Mr. Ghosh has also referred to the provisions of Section 2(2) of the Sale of Goods Act, to point out what constitute a document of title. He has also referred to Section 2(4) of the said Act as well as page 13 of Pollock Mullah, 5th Edition by R. K, Abichandani. He has also pointed out to various grounds as to when a LC cannot be recognized and that before making payment or negotiating the LC, the negotiating bank has a responsibility to scrutinize the appearances and the character of the LC and has to take reasonable care. He has raised various other questions and contentions with regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination/adjudication contemplated under Section 17 DRT Act, since it is also a liability claimed in respect of a debt. 16.2 The legislature was conscious while conferring jurisdiction under Section 17 DRT Act on the Tribunal that it covers all kinds of jurisdiction that was or used to be exercised by any Court or other authority including the High Court except under Article 226 and 227 of the Constitution of India. It is apparent from the bar of jurisdiction created by the legislature, immediately following Section 17. In order to make the jurisdiction exclusive. Section 17 and 18 have been incorporated. The jurisdiction conferred on the Tribunal is exclusive and the jurisdiction barred under Section 18 is equally exclusive, as it appears from the text of the two Sections. There is no scope of any ambiguity or second meaning so far as these two Sections when read together, are 'concerned. Section 18 excludes the jurisdiction with effect from the appointed day of all Courts or other authorities including the High Court and the Supreme Court, saving the jurisdiction under Article 226 and 227 of the Constitution of India in relation to matters specified in Section 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case of inconsistency, the question may arise as to which one will prevail. 16.5 It might be determined having regard to Article 254 of the Constitution of India. But when an Act is given overriding effect, Article 254 has no manner of application. Even if the case does not come within the scope and ambit of Article 254, still then when a special statute dealing with special subject in a special field prevails over the general statute. When the legislature incorporates an overriding effect, it intends that the provisions of such special statute shall be effective even though it might be in conflict with any other statute. Virtually, by reason of Section 34 DRT Act, the curtailment of jurisdiction provided under Section 9 of CPC and Clause 12 of the Letters Patent has been taken care of. The legislature did not stop in enacting Section 17 and 18 DRT Act respectively, creating exclusive jurisdiction and barring jurisdiction, but had proceeded to incorporate Section 31 for transferring all cases pending and Section 34 giving overriding effect to all these provisions under the DRT Act. Thus, the intention is clear and unambiguous. Therefore, it has to be respected and given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 52. The third part relates to the transaction between the plaintiff and the negotiating banks, defendants No. 53 to 57. All these three parts are alleged to be interrelated. We may now examine whether any of these parts is capable of being segregated and forming independent cause of action. 17.1 The claim as against defendants No. 1 to 44 and 45 to 52 are alleged to be on the basis of fraud and collusion perpetrated in between the defendants No. 1 to 44 on the one hand and the plaintiff's officials, defendants No. 45 to 52 on the other, So far as the case related to the second part, definitely is not part of the business activity of the plaintiffs. The second part cannot be brought within the purview of the jurisdiction of DRT. The first part is closely inter-wined and interrelated with the activities perpetrated through the transaction based on, the fraud and collusion in between the defendants No. 45 to 52 and the defendants No. 1 to 44. These two parts cannot be segregated to form independent cause of action. 17.2 In Allahabad Bank AIR 2000 SC 1535 (supra), the Apex Court had pointed out that one part of the suit cannot be maintained in one forum and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer (aa) relates to loss or damages and (bb) relates to ascertainment of respective liability. Prayer (cc) is for enforcement of the security and prayer (dd) is for sale and realization out of such securities. These can be maintained as against the prayer (a) to (s) independent of prayers (t) to (y). Prayer (ee) is for declaration that the LCs were void and prayer (ff) was for delivering up and cancellation of the LCs. Prayer (hh) is for declaration that the defendants NO. 53 to 57 were not entitled to payment under the LCs, and (ii) for realization of amounts collected by the defendants No. 53 to 57 pursuant to such LCs, Prayer (gg) seeks to restrain the defendants No. 53 to 57 from claiming any money on account of the LCs. ; 17.5 The distinctive features may be enumerated thus : (1) the suit was filed by a borrower against the bank claiming damages on the ground that the bank had failed to advance the money It had agreed to; (2) that the claim in the said suit could not be a counter-claim in the suit before the DRT; (3) the claim of the borrower was held not to come within the definition of debt. Whereas, in the present case, so far as the defendants No. 53 to 57 (third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om banking activities. The collusion and fraud alleged in between these two groups of defendants, therefore, are distinct and separate from the third part of the suit. These first and second parts cannot be tried without the other and the second part being completely outside the scope of the jurisdiction of the DRT Act, these two parts cannot be brought within the purview of the DRT. That apart, the claim against the defendants No. 1 to 44 is based on an activity which is something the plaintiff had never intended to undertake during the course of business and which was brought about by some activities which are not permissible within the banking activities. However, the observations with regard to the first and second part are tentative for the purpose of determining this question. Inasmuch as, such a decision can be had only upon an issue framed as to the maintainability/jurisdiction of the Court and is determined and a full-fledged hearing. Such issue can either be determined as preliminary or as a main issue or as an issue in the suit itself or simultaneously or one after the other or at the same time as the Court may deem fit and proper. 17.8 But, so far as the third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to a suit. If the counter claim is maintainable, in that event, it has to be decided in the suit itself. Simple assertion that it is an independent suit will not take it away from being a counter claim. The test as to whether it is a fresh suit or a counter claim is, as to whether the claim that is being espoused constitute a distinct and separate suit or can be set up as a defence to the other suit. The other test is whether the claim runs counter to the claim in the other suit, in which the party is a defendant. We have already discussed that counter claim must have nexus with the suit, which could be conveniently tried in that suit. In the present case, there is no doubt that the subject-matter of this suit runs counter to the claim of defendant No. 53 to 57 and that the relief claimed In this suit can be set up as defence in the proceedings before the DRT. Therefore, it satisfies the test of being a counter claim. As held in Aninda Saha 2001 AIHC 2956 (supra), counter claim may include a claim different from that made in the suit. Only restriction is that it must have some nexus with the claim made in the suit so as to run counter to that claim. In Abhijit Tea, AIR2000SC2957 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the statute. The jurisdiction of a Court is created by the statute. The jurisdiction that was in this Court under Section 9 CPC or Clause 12 of the Letters Patent, has since been eclipsed by Section 17 and barred by Section 18 of the DRT Act. Section 9, CPC is subject to express bar of jurisdiction. When an expressed bar of jurisdiction is created by a special statute, the subject-matter involved within the scope and ambit of special statute is excluded from the scope and ambit of Section 9, CPC by reason of expressed provision provided in Section 9, CPC itself. Clause 12 of the Letters Patent is also an exception to Section 9, CPC, which confers exclusive jurisdiction in High Court within its original jurisdiction in relation to certain matters excluding the jurisdiction of the City Civil Court at Calcutta. Similarly, the Clause 12 of Letters Patent is also subject to such exceptions, which bars its exercise in respect of certain matters. Clause 12 of Letters Patent cannot claim a different status, than what is contemplated in Section 9, CPC. It is also subject to the exclusion of jurisdiction by operation of law. As discussed above, Clause 12 of Letters Patent is also hit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of jurisdiction so far as the suit relates to the first and second part is concerned, is decided, prima facie, in my view that the suit is maintainable to the extent before this Court, subject, however, to the decision on the issue of maintainability and jurisdiction in relation to the first and second part of the suit. Therefore, prima facie it appears that the reliefs sought for as against the defendants No. 1 to 44 can very much be maintained. 20.2 Admittedly, the defendants No. 1 to 44 are borrowers. Prima facie, it appears that they had taken advantage of the action of the respondents NO. 45 to 52. It further appears that the defendants No. 45 to 52 is as apparent from the records had acted beyond their official capacity and in infraction of their duties and responsibilities. Prima facie, it appears that the action undertaken by those defendants No. 45 to 52 are fraudulent and collusive with which connivance of the defendants No. 1 to 44 cannot be ruled out. When a party takes advantage of some fraudulent activities, collusion between each other is presumed. On the basis of the materials as placed before this Court, it appears to be clear that there were some nexus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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