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2001 DAILYLAW 960 (DEL)

KRISHAN KUMAR SUREKHA v. UNION BANK OF INDIA

2001-04-20

Devender Gupta, Mukul Mudgal

body2001
Devinder Gupta ( 1 ) ORDER Dated 3. 7. 2000 passed in suit No. 906/96 by learned Single Judge is under challenge in this appeal by the defendant. ( 2 ) INITIALLY the respondent bank filed the aforementioned suit No. 906/94 in this Court claming a decree for specific performance of the agreement and for recovery of damages and also for recovery of an amount of Rs. 36,20,722. 92 from the petitioner. On coming into force of the recovery of Debts Due to Banks and Financial institutions Act, 1973 (for short "the Act") the suit stood transferred to the Debt Recovery tribunal where it was registered as O. A. No. 913/95. ( 3 ) IT appears that the appellants moved an application before the Debt Recovery Tribunal for transfer of the case to this Court. The application was rejected on 2. 7. 1996 with the observation that such an objection, if any, be raised in the written statement, Consequently, the appellants raised the objection in their reply that because of the averments made in the plaint by the Bank and the reliefs claimed therein, the tribunal has no jurisdiction to try the petition on 18. 5. 1996 when the case came up before the tribunal for consideration on the question of jurisdiction a statement was made by learned counsel for the Bank that since the prayer for specific performance and damages was but side the scope of the Tribunal s jurisdiction, the same is not being pressed and is withdrawn. It was further stated that the Bank would continue to press only for joint and several decree against the appellants for recovery of Rs. 36,20,723. 92 along with costs and interest. The case accordingly was adjourned. On 28. 7. 1998 the Tribunal again considered the preliminary objection of the appellant that the suit as framed was not maintainable before the Tribunal since decree for specific performance is sought, which does not fall within the jurisdiction of the Tribunal and passed an order. Reference was made to para 14 of the plaint by the Tribunal and it was held that the suit still was for specific performance and for damages, the Tribunal constituted under the act has got no jurisdiction to try the suit. Accordingly, the suit was ordered to be transferred to this Court. Reference was made to para 14 of the plaint by the Tribunal and it was held that the suit still was for specific performance and for damages, the Tribunal constituted under the act has got no jurisdiction to try the suit. Accordingly, the suit was ordered to be transferred to this Court. ( 4 ) ON receipt of the suit record, the question of jurisdiction again came up for consideration before learned Single Judge, who by the impugned order came to the conclusion that as the respondent Bank had before the Tribunal had given up the relief of specific performance since the said relief was not available under the Act and the only relief, which survived was for a decree for recovery of debt, the suit was exclusively triable by the Tribunal constituted under the Act. Learned Single Judge in the impugned order observed that the claim squarely fall s within the ambit of the term "debt", therefore, the dispute has necessarily to be adjudicated upon by the tribunal by virtue of Section 18 of the Act. Thus the suit was ordered to be transferred to the Debt recovery Tribunal with a request to the Tribunal to review the legal position once again. Objection of learned counsel for the appellant was also considered that the order passed on 28. 7. 1998 by the Tribunal was appealable and since no appeal had been filed by the Bank against the said order, the same had attained finality and till such order was not set aside, it was not open for the Bank to re-agitate the matter of jurisdiction. Repealling this objection, learned Single Judge held that failure on the part of the Bank to file appeal, would not have the effect of clothing this Court with jurisdiction to try a suit of the Bank for recovery of an amount and more especially after the Bank had given up the other reliefs. Such a suit could be tried by the Tribunal alone. This order is under challenge by the appellant in this appeal. ( 5 ) LEARNED counsel for the appellant has vehemently pressed the same points, which were urged before learned Single Judge that the order dated 28. 7. 1998 passed by the Tribunal had become final. No appeal had been filed against it. This order is under challenge by the appellant in this appeal. ( 5 ) LEARNED counsel for the appellant has vehemently pressed the same points, which were urged before learned Single Judge that the order dated 28. 7. 1998 passed by the Tribunal had become final. No appeal had been filed against it. Since Statute has made such orders appealable, in view of the ratio of the decision of learned single Judge of this Court in Shoes East Ltd. v. A1lahabad Bank II (1998) Banking Cases 250, it will not be permissible for this Court even to exercise powers under Article 227 of the constitution of India to set aside the said order. ( 6 ) IT is an admitted fact that before the Bank gave up its relief against the appellant for a decree for specific performance and for damage, the suit as laid was not triable by the Tribunal. There is also no dispute on this aspect that after the Bank gave up its claim as regards specific performance and damages, which are outside the scope of the Act, the suit as now laid is exclusively triable by the Tribunal and the jurisdiction of civil court is expressly ousted by Section 18 of the Act. In such eventuality, we do not find any fault in the reasonings adopted by learned Single Judge in the impugned order saying :- "being of the unequivocal view that the suit is now, after the abandonment of the relief of specific performance, essentially is for the recovery of a debt, on the strength of the authority of the Apex Court An the United Bank of india s case (supra), I must hold that this Court has no jurisdiction in the matter/lis. The incidence and conseguence of arriving at this conclusion is that the case and dispute cannot be tried by a civil court and has to be transferred, at least out of this court because of Section 18 of the Act. " ( 7 ) IN view of the aforementioned observations, learned Single Judge was also perfectly justified in saying that the dispute necessarily has to be adjudicated upon by same forum. " ( 7 ) IN view of the aforementioned observations, learned Single Judge was also perfectly justified in saying that the dispute necessarily has to be adjudicated upon by same forum. As the amount claimed by the Bank falls within the ambit of the term "debt", which by virtue of the provisions of the Act is exclusively triable by the Tribunal and not by this Court, he ordered its transfer to the Tribunal. In case the objection of learned counsel for the appellant is upheld, It will have the effect of a suit being tried by this Court, which otherwise is not permissible in law. It is a fundamental principle that the parties cannot confer jurisdiction on a Court or a Tribunal when it has none. Section 18 of the Act is a bar for maintaining a suit in Civil Court for recovery of debt. The mere fact that an order was passed by the Tribunal, which has not been appealed against by the Bank, will not clothe this Court with jurisdiction to try the suit. The suit, if tried by this Court, will be without jurisdiction and decree, if any, passed in such a suit would be nullity. Trial of the suit by the Tribunal would be permissible and it would be within the competence of the Tribunal to pass appropriate orders, as are envisaged under Section 17 of the act. ( 8 ) LEARNED Single while transferring the suit to debt Recovery Tribunal, still kept the question of jurisdiction open for which purpose Tribunal has been asked to review the legal situation once again. In our view, learned Single Judge in exercise of his inherent jurisdiction ought to have proceeded to quash and set aside the order dated 28. 7. 1998 paseed by the Tribunal, which was not only contrary to the law but was passed on an erroneous factual matrix. The order was passed by the Tribunal on the assumption that the suit still was for grant of a decree for specific performance, which it was not. That relief had already been given up by the Bank prior to 28. 7. 1998. Suit was only for recovery of Debt, which suit was exclusively triable by the tribunal. We are in full agreement with what has been stated on the legal proposition in Shoes East ltd. s case (supra ). That relief had already been given up by the Bank prior to 28. 7. 1998. Suit was only for recovery of Debt, which suit was exclusively triable by the tribunal. We are in full agreement with what has been stated on the legal proposition in Shoes East ltd. s case (supra ). In view of the settled position of law that availability of a statutory remedy of appeal or other proceedings is one of the factors to be taken into consideration by the courts while deciding whether or not jurisdiction under Article 226 of the Constitution is or is not to be exercised, existence of an alternative remedy does not absolutely bar the jurisdiction of High Court and to grant appropriate relief. It has been so held by a Division Bench of this court in C. M. 3682/99 (M/s. Unified Arya Industries v. Debts Recovery Tribunal, New Delhi and others) decided on 21. 7. 2000. Be that as it may that learned Single Judge did not exercise jurisdiction to quash the order of the Tribunal dated 28. 7. 1998, we in exercise of our inherent jurisdiction and in exercise of the power of superintendence quash and set aside the prder gassed by the Tribunal on 28. 7. 1998 (Annexure-A. 2) in OA No. 913/95. ( 9 ) WHILE dismissing the appeal, the order dated 28. 7. 1998 passed by the Tribunal is set aside with directions to the Tribunal to try O. A. No. 913/95 on merits in accordance with law.