Calcutta High Court
Allahabad Bank vs Shank'S (Steel Fab Pvt. Ltd. And Ors.) on 15 February, 2008
Equivalent citations: AIR2008CAL96, AIR 2008 CALCUTTA 96, 2008 (4) ALL LJ NOC 835, 2008 (3) AIR KAR R 488, 2008 A I H C (NOC) 479 (CAL), (2008) 1 CAL LJ 718, (2008) 4 ICC 533, (2008) 2 CAL HN 244, (2008) 2 BANKCLR 806
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT
1. This first miscellaneous appeal is at the instance of a plaintiff in a suit for recovery of money and is directed against order dated 21st May, 2007 passed by the Civil Judge, Senior Division, 9th Court, Alipore, in Money Suit No. 20 of 2002, thereby rejecting the plaint and at the same time, dismissing an application under Order VII Rule 10 of the Code of Civil Procedure filed by the plaintiff for return of the plaint.
2. The plaintiff, a Nationalized Bank, filed a suit for recovery of money valued above Rs. 10 lac in the Court of Civil Judge, Senior Division, 9th Court, Alipore, notwithstanding the fact that in view of the provisions contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (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/appellant, has strenuously contended before us that the learned Trial Judge erred in law in rejecting the plaint when, on the face of it, it had no jurisdiction to entertain the suit in view of the bar created under the Act. Mr. Basu, therefore, submits that the learned Trial Judge, instead of rejection of the plaint, ought to have passed direction for return of plaint for presentation before the Debt Recovery Tribunal.
8. Therefore, the sole question that arises for determination in this appeal is whether the learned Trial Judge erred in law in rejecting the plaint in the facts of the present case.
9. After hearing Mr. Basu appearing on behalf of the appellant and after going through the provisions contained in Order VII Rule 10 and Order VII Rule 11 of the Code of Civil Procedure, we find that Rule 10 authorises the Court to return the plaint at any stage of the suit for presentation before the appropriate Court once it comes to the conclusion that it has no jurisdiction to entertain such suit. Rule 11, on the other hand, prescribes the situations in which the Court shall reject a plaint. At this stage, we cannot lose sight of the fact that rejection of a plaint does not amount to dismissal of the suit. If a suit is dismissed, a fresh suit will be barred by the principles of res judicata; whereas in the case of rejection of a plaint, a fresh suit is maintainable and the previous order of rejection of plaint will not be an impediment in filing the second suit after removal of defect which was the cause of rejection of the plaint.
10. Order VII Rule 11(d) authorizes a Court to reject a plaint, where the suit appears from the statements made in the plaint to be barred by any law. In order to invoke Order VII Rule 11(d) of the Code, the Court must restrict its scrutiny only to the averments made in the plaint and at that stage, it cannot take into consideration the defence of the defendant nor can it seek assistance of any evidence from the parties. If it appears from the averments made in the plaint itself that the Court cannot entertain the suit because of any bar created by law, the Court is left with no other alternative but to reject the plaint by taking recourse to Rule 11(d). In other words, at the time of invoking the jurisdiction under Order VII Rule 11(d) of the Code, the Court shall presume all statements made in the plaint to be true and even if on that 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 jurisdiction to entertain the dispute. This is not a case of lack of either territorial or pecuniary jurisdiction of the Trial Court, but is one where the Statute has created a total bar of jurisdiction of the Civil Court. The fact that a Court can invoke the provision of Order VII Rule 10 only to a case of lack of territorial or pecuniary jurisdiction will plainly appear from the language of the provisions contained in Order VII Rules 10 A and 10B where there is no scope of passing a direction for appearance of the defendant before a Tribunal or other Special Authority on representation of the plaint. Moreover, a plaint can be presented only before a Court governed by the Code for initiation of a suit. A proceeding before Debt Recovery Tribunal is initiated by presentation of an application under Section 19 of the Act and is never commenced by presentation of a plaint within the meaning of the Code nor does such Tribunal come within the specifications of any of the Courts mentioned in Section 3 of the Code.
13. We fail to appreciate how the appellant is aggrieved by the order impugned herein because notwithstanding the rejection of the plaint, the plaintiff is entitled to maintain fresh proceedings before the Debt Recovery Tribunal. We appreciate that if now a new proceeding is initiated before the Debt Recovery Tribunal, the claim may be, on the face of it, barred by limitation unless the benefit of Section 14 of the Limitation Act is conferred upon the plaintiff. But even if the Court exercises jurisdiction under Order VII Rule 10 of the Code of Civil Procedure and returns the plaint, the plaintiff cannot automatically get the benefit of Section 14 of the Limitation Act as even in the case of return of plaint for want of jurisdiction under the provisions contained in Order VII Rule 10 of the Code, the suit should be deemed to have been validly presented on the date of representation before the appropriate forum. (See : Amar Chand v. Union of India and Harshad Chirnan Lal Modi v. D.L.F. Universal Ltd. .
14. Mr. Basu, in this connection, vehemently contended before us that once it is found that the Court has no jurisdiction over the subject matter, the Court is left with no other alternative but to return the plaint and in support of such contention, Mr. Basu has relied upon the following decisions of the Supreme Court as also different High Courts:
(a) R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. ;
(b) Athmanathaswami Devasthanam v. K. Gopalaswami Ayyagar ;
(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 All India High Court Cases (Allahabad) 398 : 1998 AIHC 398
(e) Smt. Ganga Coelho and Ors. v. Smt. Neena Pinto and Ors. ;
(f) Governing Council of Kayastha Pathshala Prayag and Ors. v. Ram Chandra Srivastaya and Ors. .
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 arrived at the conclusion that the Court had no jurisdiction to try the suit. According to the Supreme Court, the only course open in such circumstances was to return the plaint for presentation to the proper Court and not to dismiss the suit.
16. We fail to appreciate how the said decision can be of any help to the appellant, when, in this case, the Court has not dismissed the suit, but has merely rejected the plaint and such act is mandatory under Order VII Rule 11 of the Code. In the said case, the Supreme Court rightly held that for want of territorial jurisdiction, if a Court refuses to exercise jurisdiction, it should not dismiss the suit but should return the plaint. The case before us is not one of want of territorial jurisdiction. We, thus, find that the said decision does not help the appellant in any way.
17. In the case of Athmanathaswami Devasthanam (supra), before the Supreme Court, one of the points agitated was that when the Civil Court has no jurisdiction over the subject matter of the suit, the High Court could not have dealt with the cross objection filed by the appellant with respect to adjustment of certain amount paid by one of the parties. The Supreme Court upheld such contention and held that when the Court had no jurisdiction over the subject matter of the suit, it could not decide any question on merit and after simply deciding the question of jurisdiction, it should have returned the plaint. We, for a moment, do not dispute the said proposition of law. But as prescribed under Order VII Rule 11 of the Code, if, on the basis of averments made in the plaint, it appears that the suit is barred by any law, the Court is bound to reject the plaint instead of return of the plaint. Therefore, the said decision cannot have any application to a case of rejection of plaint on compliance of the provisions of Order VII Rule 11 of the Code. We should bear in mind that the provisions of Order VII Rule 10 is subject to the provisions of Order VII Rule 11 otherwise, the provision of Rule 11(d) becomes redundant if it is also Covered by Rule 10.
18. In the case of P. Mahomed (supra), a Division Bench of this Court held that if it appears to a Small Causes Court that it has no jurisdiction to entertain the suit, it was bound to return the plaint for presentation to the Court where it ought to have filed. We also fail to appreciate how that decision can have 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. Similarly, in the case of Smt. Ganga Coelho and Ors. (supra), the Court, on contested healing, came to the conclusion that it had no jurisdiction to entertain the suit and in such a case, the Bombay High Court was of the view that only course open to the Court was to return the plaint for presentation before appropriate forum. We have already pointed out that this is not a case where at the stage of hearing, the Court had arrived at the finding that it had no jurisdiction; but is one, where on the basis of averments made in the plaint, the suit is barred by law for the time being in force and, as such, the Court rightly invoked the mandatory provision of Order VII Rule 11 and rejected the plaint. Therefore, the said decision is of no assistance to the appellant.
21. In the case of Governing Council of Kayastha Pathshala Prayag and Ors. (supra), 20 a suit in the nature of Section 92 of the Code of Civil Procedure was presented not before the principal Court of civil jurisdiction, but before a Civil Judge who had no jurisdiction to entertain such suit without taking leave of the Advocate General. In such a case, the defendants having raised the plea that the Civil Judge had no jurisdiction to entertain such a suit without taking leave of the Advocate General, the same was liable to be rejected. The learned Trial Judge accepted such plea. On appeal, the Division Bench of the Allahabad High Court held that the District Court being the appropriate Court, the Civil Judge had no jurisdiction to entertain the suit and, as such, it was a case of return of plaint under Order VII Rule 10 of the Code. In our view, the said case did not strictly come within the purview of Order VII Rule 11(d) of the Code of Civil Procedure because whether the leave of Advocate General was taken or not may not be available from the averments made in the plaint and at the same time, the District Court being the appropriate forum for such type of suit, the High Court rightly passed direction for return of plaint instead of rejection of the plaint. Therefore, the decisions cited by Mr. Basu are of no avail to his client.
22. Apart from the aforesaid fact, since by the order impugned in this case, the plaintiff is not prejudicially affected in any-way, in view of the provisions contained in Section 99 of the Code of Civil Procedure, we do not find any reason to interfere with the order passed by the Trial Court.
23. We, thus, find that this appeal should be dismissed under Order XLI Rule 11 of the Code and we dismiss this appeal accordingly. In view of dismissal of the appeal itself, the connected application for stay being CAN 7742 of 2007 has become infructuous and the same is disposed of accordingly. Let a xerox certified copy of this order, if applied for, be supplied to the parties within a week from the date of making of such application on compliance with requisite formalities.