Calcutta High Court
Allahabad Bank vs Ghanshyam Das Damani on 23 February, 1998
Equivalent citations: AIR1998CAL243, [1999]97COMPCAS64(CAL), AIR 1998 CALCUTTA 243, (1998) 4 ICC 236 (1999) 97 COMCAS 64, (1999) 97 COMCAS 64
Author: Amitava Lala
Bench: Amitava Lala
ORDER Amitava Lala, J.
1. This is an application for recalling and/or setting aside ex parte decree dated 31st January, 1994. Parties have filed their respective affidavits. At the time of hearing, the plaintiff/ respondent did not oppose the merit of the application but raise one point that in view of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 the application ought to be sent before the appropriate Tribunal under the aforesaid Act.
2. The petitioner herein stated that he has no objection in transferring the suit from this High Court to the appropriate Tribunal but the suit in which an ex parte decree has passed by this Court ought to be recalled and/or set aside first by this Court then the suit can be transferred there.
3. It is high time to deliver a judgment on the above issue.
4. Ex parte decree in a suit has to be recalled and/or set aside under Order 9, Rule 13 of the Code of Civil Procedure. It appears therein that in any case in which a decree is passed ex parte against the defendant, he may apply to the Court by which a decree was passed for an order to set it aside. Therefore, the Court heard the suit alone has exclusive jurisdiction to entertain, try and determine the application in respect of recalling and/or setting aside the ex parte decree. Passing of decree, recalling and/or setting aside the decree and dismissal of the suit stands on a same line. In other words, one is supplementary to others.
5. I have carefully considered the various Sections of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. I found that the Tribunal can 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 such Banks and Financial Institutions. Therefore, the scope of the authority of the Tribunal is very much, restricted. It also appears that jurisdiction of other Court is barred except the Supreme Court and High Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India. For the purpose of proceeding with the matters the Tribunal will discharge the functions under this Act, the same powers as are vested in the Civil Court under Code of Civil Procedure, 1908 while trying a suit in respect of few matters. One of such is under Section 22(2)(g) setting aside any order of dismissal of any application for default or any order passed by it ex parte. Here also I found that the scope of setting aside is limited and restricted in passing an order by it ex parte.
6. Therefore, the Order 9, Rule 13 of the Code of Civil Procedure and Section 22(2)(g) will be read side by side. In the earlier one the Court which was passed decree can pass an order to set aside and in the later one setting aside any order of dismissal of any application for default or any order passed by 'it' ex parte. The cardinal principle is if the suit is decreed ex parte by the Civil Court it should be revived by the Civil Court alone and if order is passed ex parte before the Tribunal it will be revived by it alone. If the suit decreed by the High Court and recalled by the tribunal under control and supervision of such High Court, it will be a last day of the judiciary. Incidentally High Court is one having different jurisdiction. There should be a limitation as to how far Tribunal should proceed with a matter assigned before it and an unfettered right to the Tribunal, if at all given by the legislature may create hazardous situation in the judicial discipline.
7. Moreover the suit filed in the Original Side is to be guided by the Original Side Rules. Original Side Rules has prevailing effect over the Code of Civil Procedure. In such a situation, an application of Order 9, Rule 13 cannot be said to be an application under Order 9, Rule 13 of the Code of Civil Procedure alone but an application both under the Original Side Rules as well as Code of Civil Procedure. Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 speaks about the Code of Civil Procedure, 1908 but silent about the Original Side Rules of a chartered High Court although there are various chartered High Courts in the country. The law-maker did not think about this aspect at the time of making the law.
8. Above all, unless and until a decree passed by the High Court is recalled no formal lis is pending before such Court and under such situation what is to be transferred to the Tribunal is best known to the party opposing the prayer for recalling and/or setting aside the decree and thereafter transfer it to the appropriate Tribunal.
9. In view as above, the prayer is made for recalling and/or setting aside the ex parte decree dated 31 st January, 1994 passed in Suit No. 619 of 1989 be set aside and recalled and the suit be restored in its original file.
10. Liberty is granted to the petitioner/defendant to contest the same. No order is passed as to costs. Since the claim is more than Rs. 10,00,000/- (Ten lakhs) only the plaintiff will be entitled to comply with the formalities for the purpose of transferring the suit. Accordingly, the Registrar, Original Side is hereby directed to transfer the suit to the Tribunal formed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for its disposal. Such measures will be taken up expeditiously.
11. Registrar, O.S. department and all parties are to action a signed copy minute of the operative part of the order.