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TMI Blog2021 (8) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant account as non- performing asset to be questioned. The opening words of the provision must be seen to be indicative of when the right to apply thereunder arises, but cannot be confined merely to a challenge to the measure adopted under Section 13(4) of the Act of 2002, since a challenge to the measure adopted would always include the authority to take the measure, whether on account of the status of the creditor or on any other available count. Thus, when an asset reconstruction company, as the assignee of the debt originally due to a secured creditor, adopts a measure under Section 13(4) of the Act of 2002, any person aggrieved thereby may challenge the same by questioning the assignment of the debt on any of the various grounds that may be available. It is incumbent on the jurisdictional DRT to deal with the matter and, technically, it may be said that upon the DRT coming to a conclusion that the secured creditor had no debt to pursue or that the person who had taken measures under Section 13(4) of the Act of 2002 did not qualify to take recourse to the provisions of such statute, it would lose further authority over the matter - There may be the odd situation where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 30.06.2018; b) A DECLARATION that the 1st Defendant and the 2nd Defendant do not have the right to retain the title deeds of the Plaintiff detailed in Schedule B hereto and a consequential direction to the 1st Defendant to return to the Plaintiff the Specific Movable Property, namely the deeds of title more fully described in the Schedule B hereto; c) Direct the Defendants to bear the costs of this suit. 3. By the judgment and order impugned dated September 30, 2019, passed while considering the plaintiff's prayer for leave under Clause 12 of the Letters Patent, 1865, the trial court observed that the suit had to be regarded as a suit for land and, since no part of such land was within the original jurisdiction of this court, the suit could not be instituted here. The leave sought was declined, but liberty was granted to the plaintiff to approach the Tribunal ; presumably the appropriate Debts Recovery Tribunal (DRT). 4. At the outset, a question of maintainability arises since the order impugned has been passed in a suit filed before the Commercial Division of this court and it is not an order enumerated in Order XLIII of the Code of Civil Procedure, 1908. Though the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with the provisions of this Act. 7. At the same time, Section 2(2) of the Code defines a decree and Section 96 thereof permits an appeal from every original decree, except when passed with consent. 8. If only to give Section 13 of the Act of 2015 its proper meaning in the context of the statute, the objects that the Act professes to achieve and the purpose of providing for an appeal in any statute, an appeal from a decree has to be seen to be permitted by Section 13 in both situations covered by sub-sections (1) and (1A) by enlarging the meaning of the expression judgment or order in either sub-section, in the context, to include a decree. This would be the only meaningful way of reading the provision and of giving meaning to the expression unless there is anything repugnant in the subject or context used in the opening limb of Section 2 of the Code and the similar caveat that is indicated in any reasonable definition provision of a statute. 9. It would also be completely unreasonable to read Section 13 of the Act of 2015, however inarticulately such provision may have been drafted, to permit appeals against interlocutory orders, but not provide for any appeal against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by a defendant before an adjudication in such regard is made. But a court cannot be faulted for being vigilant and not entertaining a suit which the law prohibits. When it is perceived that a law prohibits the institution of a suit before a civil court or the receipt thereof by the civil court, the prohibition must be express or by unavoidable necessary implication and the civil court will not take its jurisdiction to be ousted lightly, particularly since jurisdiction is an obligation and not a privilege. When a court has due authority to adjudicate on a matter, it is obliged to undertake such activity and cannot shirk its responsibility in such regard. Equally, when a law prohibits a certain kind of action to be carried to a civil court, rather than the law operating as a bar on the parties, it is the duty of the civil court to not entertain the action if the statutory prohibition operates on the court itself. 14. The plaintiff has referred to several judgments in trying to pursue its claim in this court. The plaintiff submits that even if the claim in a suit appears to be absurd, the suit will lie; though it may ultimately fail. But before the law cited by the plaintiff is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In such circumstances, the plaint contends that the first defendant is not entitled to take recourse to the provisions of the Act of 2002 against the plaintiff pertaining to the credit facilities granted by the second defendant to the third defendant. The reliefs claimed, as set out above, include a declaration that the deed of assignment executed by the second defendant in favour of the first defendant is invalid, with the consequential injunction. The further relief sought is a declaration that the first and second defendants have no right to retain the title-deeds pertaining to the property mortgaged by the plaintiff with the second defendant, with the consequential direction for return of the property and the title-deeds. 17. For a start, the plaintiff contends that notwithstanding Section 5 of the Act of 2002 and the permissibility of the debt due to a bank or a financial institution to be assigned in favour of an asset reconstruction company, when there is no right to pass on to an assignee, the assignment may be challenged by any person prejudiced thereby. The substance of the submission is that since the debt due from the third defendant to the second defendant stood disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and untenable which may not require any probe whatsoever ... 20. The plaintiff places a Division Bench judgment of this court reported at AIR 1955 Mad 491 (A. Batcha Saheb v. Nariman K. Irani) for the same proposition. 21. Two further judgments, one of the Andhra Pradesh High Court reported at (2016) 6 ALT 533 (D. Ram Reddy v. Asset Reconstruction Company (India) Pvt. Ltd) and another of the Bombay High Court reported at 2021 SCC OnLine Bom 466 (Bank of Baroda v. Gopal Shriram Panda) have also been cited, as such judgments rely on the exception to the rule as recognised in Mardia Chemicals Limited to hold that in a very restricted field, a civil suit may lie. 22. The plaintiff has also brought a Division Bench judgment of the Calcutta High Court reported at AIR 2018 Cal 8 (Delta International Limited v. Smt. Nupur Mitra) that noticed the distinction between the two limbs of the bar of civil court's authority under Section 34 of the Act of 2002. It is necessary that the provision be seen first before referring to the discussion on such aspect in Nupur Mitra: 34. Civil Court not to have jurisdiction.- No Civil Court shall have jurisdiction to entertain any suit or proceeding in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T to determine the inter se rights between the plaintiff and the first defendant. And, no injunction may be granted by any court in respect of any action taken or to be taken by the first defendant in pursuance of any power conferred by or under the Act of 2002. If no injunction can be issued, the relief for declaration becomes meaningless. As of today, the suit can no longer be received in this court. 26. A further submission of the plaintiff is that no DRT or DRAT may have the authority to direct the return of the title-deeds pertaining to the mortgaged property and, as such, the suit ought to have been entertained as the other reliefs claimed are incidental to the primary relief for return of the title-deeds pertaining to the property that was mortgaged by the plaintiff in favour of the second defendant for repayment of the loan obtained by the third defendant from the second defendant. 27. There is no doubt that tribunals created by statutes have only so much authority as is expressly conferred by the governing statute; unlike a civil court which has authority to address all matters before it, except to the extent precluded by law. 28. In a sense, when a person invokes Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant creditor in its tracks and not permit such creditor to proceed any further. But it is possible that the measures taken by the creditor would require to be undone. It cannot be said, in such a scenario, that since the DRT had held that the so-called creditor could not have invoked the provisions of the Act of 2002, the DRT would lose all jurisdiction over the matter. It would opposed to public policy to view Section 17 of the Act of 2002 in such narrow light that it would not permit the wrong done to a person aggrieved who has approached the forum to be adequately remedied. There may be the odd situation where the limited authority of the DRT or the DRAT may not be effective to remedy the wrong; but Section 17(3) of the Act of 2002 confers sufficient authority on the tribunal to pass appropriate directions which are consequential to its finding that the secured creditor was not entitled to invoke the provisions of the Act of 2002 or the measures taken by the secured creditor were not in accordance with the provisions of the Act. 31. It is equally possible that the tribunal may be embarrassed, on the ground of lack of authority, to completely remedy the wrong done to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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