Union Bank Of India vs Krishan Kumar Sureka & Anr.
2000 Latest Caselaw 560 Del

ORDER

Vikramajit Sen, J.

1. A jural nodus has cropped up in this litigation. A plaint had initially been filed in this Court for Specific Performance and Damages. Since the jurisdictional value of the dispute was approximately Rs. 36 lakhs, the case was transferred to the Debt Recovery Tribunal in 1995. Proceedings continued in the said Tribunal and the parties submitted to its jurisdiction. Issues were struck by the Presiding Officer of the Tribunal. It appears that an objection had been raised pertaining to the jurisdiction of the Tribunal on the ground that it had no power to try the suit for Specific Performance of the contract. Eventually on 18.5.1998 the Applicant/Plaintiff-Bank stated that it did not press the relief for Specific Performance, since such relief was not available under The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act'). The relief for the passing of a decree of Rs.

36,20,722.92, as originally prayed in the plaint was, however, retained. Despite this statement, by its order dated 20.7.1998 the Debt Recovery Tribunal held that it had no jurisdiction to try the suit since it contained the relief of Specific Performance. It accordingly transferred the suit to this Court.

2. Mr. A.K. Matta, learned counsel for the Plaintiff-Bank has reasserted before me that since the prayer of specific performance had been given up, the pending proceedings were for the recovery of a debt due to the Bank and could, therefore, be tried only by the Debt Recovery Tribunal. In support of his contention he relied on the decision rendered by the Apex Court in United Bank of India Vs. Debts Recovery Tribunal and Ors., .

3. Mr. G.L. Rawal, learned counsel for the Defendant, however, contended that this argument could not be entertained or considered by the Court since the order transferring the proceedings from the Tribunal to the High Court was passed on 20.7.1998 and was amenable to correction by the filing of an Appeal before the Appellate Tribunal as envisaged in Section 20 of the Act. The stipulated period of limitation being forty five days, which has expired, the order dated 20.7.1998 has obtained finality. He has relied on a decision of this Court in Shoes East Ltd. Vs. Allahabad Bank, II (1998) BC 250, in which my learned brother M. S. A. Siddiqui, J. had dismissed a petition under Article 227 of the Constitution by holding that the Act provides an adequate and efficacious remedy of appeal, and that Article 227 of the Constitution was not intende to supercede the statutory modes of reliefs. I am in respectful agreement with this decision. It, however, does not apply to the contentions and the vexed question which exists in these proceedings.

4. It is not in controversy that the Plaintiff has not filed an appeal although it could have done so and thereby perhaps overcome the somewhat embarrassing legal impasse that has been created. Failure to file the appeal, however, would not have the effect of clothing this Court with jurisdiction if it does not have it. Section 31 of the Act enjoins and mandates that every suit or proceeding having a cause of action which would be adjudicated by the Tribunal alone, should be transferred from the Court to the Tribunal. The jurisdiction of the Tribunal is contained in Section 17(1) of the Act and the succeeding Section bars the jurisdiction of a Court or other Authority. Sections 17(1) and 18 read as under:

"17. Jurisdiction, powers and authority of Tribunals. (1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide appli cations from the banks and financial institutions for recovery of debts due to such banks and financial institutions."

"18. Bar of jurisdiction. On and from the appointed day, no Court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Arts. 226 and 227 of the Constitution) in relation to the matters specified in Section 17."

5. A party is entitled to amend its pleadings from time to time which includes that the Plaintiff shall have the liberty to give up one of the reliefs prayed for in the plaint. This is what the Plaintiff had done by making a statement that it would not press for the relief of specific performance. Having done so, its claim would fall squarely within the definition of 'debt' as contained in Section 2(g) of the Act. which defines that "Debt means any liability (inclusive of interest) which is alleged as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or whether payable under a decree or order of any civil Court or otherwise and subsisting on, and legally recoverable on, the date of the application."

6. It is no doubt true, as contended by Mr. G. L. Rawal, learned counsel for the Defendant, that this Court does not sit in appeal over orders passed by the Debt Recovery Tribunal. That is the exclusive statutory preserve of the Appellate Tribunal under Chapter IV of the Act. The view that I have taken is not as if I am exercising appellate jurisdiction. However, in order to proceed with the adjudication of the suit it is essential that this Court should have jurisdiction to adjudicate upon the disputes to be decided in the suit. This is clearly barred under Section 18 of the Act. Merely because the Plaintiff-Bank has been negligent in not filing an appeal, this Court would not thereby be empowered with statutorily excluded jurisdiction. There is no estoppel against a Statute and as seen above, this Court would have no jurisdiction to adjudicate upon a debt simplicitor. Being of the unequivocal view that the suit is now, after the abandonment of the relief of Specific Performance, essential for the recovery of a debt, on the strength of the authority of the Apex Court in the United Bank of India's case (supra), I must hold that this Court has no jurisdiction in the matter/lis. The incidence and consequence of arriving at this conclusion is that the case and dispute cannot be tried by a Civil Court and has to be transferred, atleast out of this Court because of Section 18 of the Act.

7. The dispute has necessarily to be adjudicated upon. It falls within the ambit of the term "debt" which, by virtue of Section 17 can exclusively be tried only by the Tribunal. The case is, therefore, transferred to the Debt Recovery Tribunal, which is requested to review the legal situation once again.

8. The complete record of this suit be sent to the Debt Recovery Tribunal forthwith.

9. The parties are directed to appear before the Debt Recovery Tribunal on 7.8.2000.