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TMI Blog2008 (2) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter referred to as the Act), such suit is barred and the proceedings are entertainable only by the Debt Recovery Tribunal. 3. The defendants, after entering appearance in the suit, filed an application under Order VII Rule 11 of the Code of Civil Procedure thereby praying for rejection of the plaint on the ground that even on the basis of averments made in the plaint itself, the suit was barred by the provisions contained in the said Act. 4. The plaintiff, at that stage, came forward with an application under Order VII Rule 10 of the Code of Civil Procedure thereby praying for a direction for return of the plaint instead of rejection of the same. 5. Both the applications were taken up together for hearing and by the order impugned herein, the learned Trial Judge has allowed the application under Order VII Rule 11 of the Code by rejecting the plaint and at the same time, has dismissed the other application under Order VII Rule 10 of the Code of Civil Procedure filed by the plaintiff for return of the plaint. 6. Being dissatisfied, the plaintiff has come up with the present first miscellaneous appeal. 7. Mr. Basu, the learned advocate appearing on behalf of the plaintiff/appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t basis, it appears that the suit is barred by any law for the time being in force, the plaint shall be rejected. The provision is mandatory and no discretion is left with the Court. 11. In the case before us, the plaintiff, a Nationalized Bank, has alleged in the plaint that the claim of the Bank was more than Rs. 10 lakh and in view of such claim, the Civil Court has no jurisdiction to entertain the suit, the appropriate remedy being available before the Debt Recovery Tribunal created under the Act, Court therefore, rightly concluded that this was a case of rejection of plaint. The moment, the plaint has been rejected instead of dismissal of the suit, it necessarily follows that the Court has not gone into the merit of the case and, therefore, there is no adjudication on the merit of the claim of the plaintiff. 12. In our view, the Court was quite justified in not returning the plaint in the facts of the present case, because Order VII Rule 10 speaks of a situation where either the territorial or the pecuniary jurisdiction of that particular Court is lacking and that such suit is required to be filed in a different Court to which the Code of Civil Procedure applies having jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court as also different High Courts: (a) R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. reported in AIR 1993 SC 2094 ; (b) Athmanathaswami Devasthanam v. K. Gopalaswami Ayyagar reported in [1964] 3 SCR 763 ; (c) P. Mahomed v. Cheetra Nath Chowdhury and Ors. reported in 27 C.L.J. 590; (d) Smt. Shail Kumari v. Abhislakh and Ors. reported in 1998 AlHC 398 : 1998 AIHC 398 (e) Smt. Ganga Coelho and Ors. v. Smt. Neena Pinto and Ors. reported in AIR 1997 Bom 252 ; (f) Governing Council of Kayastha Pathshala Prayag and Ors. v. Ram Chandra Srivastaya and Ors. reported in AIR 1992 All 158 . 15. In the case of R.S.D.V. Finance Co. Pvt. Ltd. (supra), the trial Judge decreed the suit. On appeal before the High Court, the Division Bench of the High Court concluded that the Court had no jurisdiction and, accordingly, allowed the appeal and dismissed the suit. Being dissatisfied, the plaintiff came up before the Supreme Court on special leave. While affirming the finding of the Division Bench of the High Court in appeal before the Supreme Court, the said Court was of the view that the Division Bench was wrong in passing of the order of dismissal of the suit when it had arri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve any application to the facts of the case where the Court had not dismissed the suit on merit, nor had it arrived at any finding on merit on the claim of the appellant. Moreover, in view of the clear provision contained in Section 23 of the Provincial Small Causes Act, the Court is bound to return the plaint for presentation to the Court competent to decide title. The said decision is, therefore, inappropriate in the facts of the present case. 19. In the case of Smt. Shail Kumari (supra), the Court came to the conclusion that it had no Jurisdiction over the subject matter of the suit; but, in spite of that, recorded a finding as regards right of possession. In such circumstances, the Court was of the view that the Court ought to have simply returned the plaint for presentation before appropriate forum. In the case before us, we have already pointed out that the case having fallen within the purview of Order VII Rule 11(d) of the Code of Civil Procedure, the Court merely rejected the plaint on the ground that the provision contained in the Act bars the jurisdiction of a Civil Court. We, thus, find that the said decision is equally inapplicable to the facts of the present case. 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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