Patna High Court
Arbind Kumar vs State Bank Of India And Ors. on 8 January, 1998
Equivalent citations: 1998(46)BLJR557, [1999]98COMPCAS34(PATNA)
JUDGMENT Sachidanand Jha, J.
1. This civil revision by the defendant-applicant of the miscellaneous case, is directed against an order by which the court below has transferred the miscellaneous case under Order 9, Rule 13 of the Code of Civil Procedure to the Debts Recovery Tribunal ("the Tribunal", in short) in view of the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. It is not necessary to notice the facts of the case, except to mention that the opposite party-State Bank of India filed Money Suit No. 14 of 1990 in the court of the first Subordinate Judge, Begusarai, which was decreed ex parte against the petitioner on September 30, 1992. The petitioner filed Miscellaneous Case No. 25 of 1993 for setting aside the ex parte decree on September 4, 1993. An application was made by the opposite party-bank to transfer the miscellaneous case to the Tribunal established under the said Act on the ground that in terms of Section 17 of the Act it is the Tribunal alone which has jurisdiction to entertain a suit filed on behalf of the banks or financial institutions. The said application has been allowed by the impugned order.
2. The submission of counsel for the petitioner is that the provisions of the Act are applicable to suits or proceedings at the instance of banks and financial institutions. The present proceeding in the miscellaneous case not being at the instance of either a bank or financial institution, it does not come within the purview of the Act.
3. The provision regarding transfer of suits and proceedings is contained in Section 31 of the Act. The only point for consideration is whether a miscellaneous case for setting aside the ex parte decree comes within the purview of Section 31 or not.
4. Section 17 of the Act lays down that the Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to them. Section 18 lays down that, on and from the appointed day, no court or other authority shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to the matters specified in Section 17. (This provision is not to apply to the Supreme Court or the High Courts exercising jurisdiction under Articles 226 and 227 of the Constitution of India). Section 31 provides for transfer of cases pending before the court to the Tribunal. In view of the point involved, it would be apposite to notice the provisions of Section 31, so far as relevant, as follows :
"Every suit or other proceeding pending before any court immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal."
5. Stated -in plain words, this section lays down that if the suit or proceeding is founded on a cause of action which falls under the jurisdiction of the Tribunal, the same would stand transferred to it. Section SI, in a sense, is to be understood as complementary to Sections 17 and 18 which create jurisdiction in the Tribunal and bar the jurisdiction of the court or other authorities so as to confer total jurisdiction on the Tribunal with respect to future as well as pending suits and proceedings.
6. There cannot be any doubt, in view of the aims and objects of the Act and the express provisions thereof, that it is only suits or proceedings by the banks and financial institutions which are to be entertained and decided by the Tribunal and, therefore, it is only such suits or proceedings pending before the courts or other authorities which are to be transferred to the Tribunal. The Act contains provisions regarding appeals from such suits which may be pending before any court on the appointed day, The proviso to Section 31 lays down that the provision regarding transfers shall not apply to any pending appeals. No provision, however, has been made as to the miscellaneous proceedings arising out of such suits. The Act is silent on the point. A suit by the bank or financial institution might have been dismissed in default and an application for its restoration might be pending on the appointed day. Likewise, the suit might have been decreed ex parte and an application for setting aside the ex parte decree might be pending on the appointed day, as in the present case. The question is whether these miscellaneous cases are to be transferred to the Tribunal. The answer to the question has to be found in Section 31 which is the only provision regarding the transfer of suits or other proceedings.
7. As noted above, Section 31 extends to suits or proceedings which are founded on any cause of action which falls under the jurisdiction of the Tribunal. In my opinion, in order to attract the provisions of Section 31 or Section 18, the suit or proceeding must be one for recovery of debt. The proceeding for restoration of the suit or setting aside the ex parte decree is not one for recovery of debt. It is only after the ex parte decree is set aside and the suit is restored, that the provisions of Section 18 or Section 31 become applicable. The expression "cause of action" occurring in section 31, according to me, has to be given a restricted meaning. Thus, even if the cause of action for filing the miscellaneous case is passing of the decree in a suit which, had it been alive, would have stood transferred, the miscellaneous case cannot be transferred. On general principles also, in the absence of any statutory provision, it is only that court which has passed the decree or dismissed the suit in default, which would be competent to restore the same. If the suit has been decreed ex parte, the cause of action for filing the miscellaneous case under Order 9, Rule 13 of the Code of Civil Procedure is certainly the passing of the ex parte decree. But where the ex parte decree is passed or the suit is dismissed in default immediately prior to the "appointed day", say, a day earlier, can the miscellaneous case at the instance of the debtor or the bank be filed before the Tribunal ? Possibly not. If that be so, I do not think, a pending miscellaneous case can be transferred.
8. Section 22(2)(g) of the Act also conveys the same thing. Section 22 contains provisions regarding procedure and powers of the Tribunal. Clause (g) of Sub-section (2) lays down that the Tribunal shall have the same power as vested in the civil court under the Civil Procedure Code, while trying a suit in respect of "setting aside any order of dismissal of any application for default or any other order passed by it ex parte". The words "application" and "it" suggest that the Tribunal's power of setting aside dismissal and ex parte decree is confined to orders passed by it, and not by the civil court or other authorities.
9. Counsel for the opposite party submitted that the words "or other proceedings", occurring in Section 31, are wide enough to include a miscellaneous case for setting aside an ex parte decree. The submission is wholly misconceived. The words "other proceedings" refer to proceedings before other authorities. From the provisions of the Act it is clear that the Act is to apply not only to suits pending in the civil court but also to proceedings before other authorities, such as proceedings in the nature of certificate proceedings under the relevant State Public Demands Recovery Act before the certificate officer. If such proceedings are at the instance of the bank or other financial institution, within the meaning of the concerned Act, the authorities have no jurisdiction to entertain or decide the same and they too would stand transferred to the Tribunal.
10. In these premises, I am of the view that the court below committed an error of law and jurisdiction in transferring the miscellaneous case. The impugned order, therefore, cannot be sustained.
11. In the result, the order dated July 29, 1997, is set aside and this revision is allowed. There will be no order as to costs.