Calcutta High Court
The Oriental Insurance Co. Ltd. vs Arun Kumar Maitra And Anr. on 13 April, 2005
Equivalent citations: I(2006)ACC106, 2006ACJ839, III(2006)BC73, (2005)3CALLT271(HC)
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. Since common questions of law have been raised in all these three civil revisional applications, this Court proposes to dispose of all these three civil revisional applications by a common order.
2. The following questions of law are involved in these revisional applications: -
(i) Whether the provisions regarding execution of a decree as contained in Order 21 of the Code of Civil Procedure can be invoked in a proceeding for recovery of money from insurer under Section 174 of the Motor Vehicles Act, 1988 ?
(ii) Whether the Manager of a nationalised bank can be regarded as a public officer as defined in Section 2 Sub-section (17) of the Civil Procedure Code ?
3. By the orders impugned, the learned Judge, MAC Tribunal passed an order of attachment of the bank account of the respective insurance companies to the tune of the award money of the respective claimants and the Managers of the respective banks were directed to withdraw an amount equivalent to the awarded money from the said account and to deposit the same by account payee cheques drawn in favour of the respective claimants before the Tribunal.
4. The said orders are under challenge in the aforesaid three revisional applications.
5. Mr. Dasgupta, learned senior advocate, appearing in support of these revisional applications, submitted before this Court that mode of recovery of money from insurer has been prescribed under Section 174 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act). Mr. Dasgupta contended that the said provision makes it clear that on an application made to the Tribunal by the holder of the award, the Tribunal may issue a certificate for the amount to the Collector and then the Collector will proceed to recover the same in the same manner as an arrear of land revenue.
6. According to Mr. Dasgupta, since this specific mode has been prescribed under the said Act for recovery of the awarded money, the Tribunal cannot adopt any other mode save and except the mode as provided therein for recovery of the same.
7. Mr. Dasgupta further submitted that the power to make Rules for carrying into effect the provisions of Sections 165 to 174 has been vested with the State Government under Section 176 of the said Act. In exercise of the said power, the State Government has also framed Rules, viz., West Bengal Motor Vehicles Rules 1989. Rule 342 is the relevant Rule which specifies that the certain provisions of the Civil Procedure Code can be exercised by the Claims Tribunal. Rule 343 prescribes the procedure which is to be followed by the Claims Tribunal in holding enquiries in connection with different proceedings under the said Act.
8. By referring to the said Rules, Mr. Dasgupta submitted that since the provision relating to execution under Order 21 of the Code of Civil Procedure was not included in the said Rules, the Tribunal while dealing with the claimants' application for recovery of the awarded money under Section 174 of the said Act, cannot apply any of the provisions contained in Order 21 of the Code of Civil Procedure.
9. To strengthen his aforesaid submission, Mr. Dasgupta relied upon one decision of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh reported in 2004 AIR SCW 663 and submitted that the Hon'ble Supreme Court in the said decision has made it clear that the determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner as arrears of land revenue.
10. Mr. Dasgupta submitted that in view of the aforesaid pronouncement of the Apex Court of the land, the impugned orders cannot be sustained as the learned Tribunal instead of following the procedure, as prescribed in Section 174 of the said Act passed an order of attachment under the provision of Order 21 Rule 52 of the Code of Civil Procedure for recovery of the awarded amount on the application under Section 174 of the said Act filed by the claimants.
11. With regard to the second question of law, as indicated above, Mr. Dasgupta submitted that even assuming though not admitting that the Tribunal can invoke the power under Order 21 of the Code of Civil Procedure, still then the order of attachment which was passed by the Tribunal cannot be sustained, as the money of the respective insurance companies which are lying in their respective accounts of their respective nationalised banks, cannot be attached under Order 21, Rule 52 of the Code of Civil Procedure, as the said money is not lying in custody of public officer. In other words, since the Manager of the Bank is not a public officer as defined in Section 2 of Sub-section (17) of the Civil Procedure Code, the money lying in the respective accounts of the petitioners in the custody of the said Manager of the bank, is not liable to be attached under Order 21 Rule 52 of the Code of Civil Procedure.
12. Mr. Dasgupta submitted that public officer has been defined in Section 2 of Sub-section (17) of the Civil Procedure Code. By referring to the said provision, Mr. Dasgupta pointed out that bank Manager does not come within any of the descriptions as contained in clause (a) to (h) under the said provision. As such, the bank Manager cannot be a public officer and if that be so the money lying in the custody of the Manager of such bank cannot be attached under Order 21 Rule 52 of the Code of Civil Procedure.
13. By referring to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, Mr. Dasgupta clarified the effect of such Act on the status of the nationalised bank. Mr. Dasgupta referred to Section 2(d) of the said Act which defines the corresponding new bank in relation to an existing bank which means the body corporate specified against such bank in column 2 of the first schedule. By drawing my attention to the said Schedule, Mr. Dasgupta submitted that these banks were all included as corresponding new bank in the said Schedule.
14. Mr. Dasgupta submitted that the dispute as to whether the officer of a body corporate can be equated with the Government servant is no longer a res Integra in view of different pronouncement of different High Courts.
15. Mr. Dasgupta referred to one decision of this Hon'ble Court in the case of Gowardhandas Rathi v. Corporation of Calcutta to show that the Commissioner of the Calcutta Corporation which is a body corporate was held by this Hon'ble Court as not a Government servant.
16. By referring to another decision of the Punjab and Haryana High Court in the case of Kumari Renuka Batra v. Grindlays Bank Ltd., Amritsar, Punjab reported in AIR 1980 P&H 144, Mr. Dasgupta submitted that the said High Court also held that the Officer of All Indian Institute of Medical Science, Delhi which is a body corporate created under the Central Act, is not public officer as contemplated under Order 21 Rule 52 of the Code of Civil Procedure because of its definition as contained in Section 2(17) thereof.
17. Ultimately, Mr. Dasgupta submitted that since no provision for recovery of the award money save as otherwise provided in Section 174 of the said Act, is prescribed under the said Act, the State Government even in exercise of its rule making power cannot frame rule for working out any provision which is absent in the Act itself. As such, even if the State Government prescribes any rule for application of provision of Order 21 of the Code of Civil Procedure, such provision cannot be applied in the absence of the substantive provision in the Act itself.
18. In support of the said submission, Mr. Dasgupta referred to one citation of the Hon'ble Supreme Court in the case of Vasanlal Maganbhai v. State of Bombay wherein it was held that the legislature cannot delegate its essential legislative function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. It was further held therein that the legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. Such functions cannot be left to the rule making authority of the State.
19. Relying upon the said decision, Mr. Dasgupta submitted that the State Government cannot even frame any rule for working out any non-est provision in the Act itself. According to Mr. Dasgupta, even if rule provides for application of Provision of Order 21 of the Code of Civil Procedure, still then the said provision cannot be applied in a proceeding under Section 174 of the said Act which does not prescribe the mode for recovery by way of attachment as prescribed under the Rules.
20. Thus, Mr. Dasgupta invited this Court to interfere with the order impugned on the aforesaid grounds.
21. Mr. Banik, learned Advocate, appearing for the opposite parties, refuted the said submission of Mr. Dasgupta by submitting that the controversy as to whether a nationalised bank is only a body corporate or a corporation, is no longer res Integra in view of the decision of the Constitution Bench of the Hon'ble Supreme Court in Ashoka Marketing Ltd v. Punjab National Bank wherein it was held that "keeping in view the provisions of the Bank Nationalisation Act, we are of the opinion that the nationalisation of bank is a corporation established by a Central Act and it is owned and controlled by the Central Government".
22. Mr. Banik, thus, submitted that the Hon'ble Supreme Court in the said decision made it clear that the nationalised bank is not a body corporate simpliciter but it is a corporation created by the Central Act and it is owned and controlled by the Central Government. If that be so, then it cannot be said that the Manager of the nationalised bank is not a public officer.
23. By referring to the definition of public officer as contained in Section 2(17) of the Code of Civil Procedure, Mr. Banik submitted that the Manager of the bank is a public officer as he fulfils the conditions of clause (g) of Section 2(17) of the Code of Civil Procedure.
24. Mr. Banik further contended that Section 174 of the said Act is the provision which prescribes the procedure for recovery of the awarded money. Mr. Banik further submitted that while recovering the awarded money, the Tribunal may issue a certificate to the Collector. According to Mr. Banik the use of expression of "may" in the said provision is very significant. By referring to a decision of the Madhya Pradesh High Court in the case of Sarmaniya Bai and Ors. v. Madhya Pradesh Rajya Parivahan Nigam , Mr. Banik submitted that the significance of the expression "may" under a similar provision under the old Act has been explained in paragraph 12 in the said decision which runs as follows:-
"12. It appears to us, however, that use of the word 'may' in Section 110-E has another purpose and that must be vocalised. By implication, the Claims Tribunal is, according to us, empowered to exercise the jurisdiction already vested in it in any other manner in regard to enforcement of its own award and, therefore, 'may' signifies also discretionary exercise by the Tribunal of its jurisdiction under Section 110-E. The territorial extent of the jurisdiction contemplated thereunder is obviously limited because Tribunal 'may' issue certificate on application under Section 110-E only to such Collector as possesses territorial competence to entertain and execute an award sent to it for execution, under the law applicable to him. All applications made under Section 110-E are, therefore, not supposed to be allowed on being filed without regard to that question or other relevant questions. It cannot, therefore, be said that all awards passed by the Tribunal can be enforced in virtue of such application and in no other manner. If the contrary view is taken it would mean that an award which has to be enforced in respect of a person or property within the jurisdiction of arty other Collector, would remain for all times a paper award and that would not be enforceable by any other means at any other forum. That would defeat the fundamental purpose and object of Section 110 and indeed of entire Chapter VIII. Other provisions of the Chapter are obviously not controlled by Section 110-E as is manifested by the absence therein of a non-obstante clause."
25. Mr. Banik further submitted that the Madhya Pradesh High Court in the said decision also held that the provision of Order 21 of the Code of Civil Procedure can be applied by the Tribunal for recovery of the awarded money. The relevant paragraph of the said decision is set out hereunder as follows :-
" 17. It has to be still examined if in Civil Procedure Code itself there is any bar to Tribunal's applying relevant provisions thereof as afore-extracted. Rule 297 framed by the State Government does not expressly contemplate that in regard to enforcement of awards passed under the Act those provisions may be applied by the Tribunal. This exercise is postulated by the universally excepted principle that no Court or Tribunal can use inherent powers to nullify or stultify any express statutory provisions. [See Cotton Corporation of India Ltd. v. United Industrial Bank Ltd., ]. Section 36 et. seq. and Order 21, Civil Procedure Code contain provision for 'execution' of orders and decrees passed by a Court. Neither the word 'Court', nor the words 'Civil Court' are defined in Civil Procedure Code. Even in the Act, those words are not defined. In Stroud's Judicial Dictionary, it is stated: "Court is a place where justice is judicially administered". [See Vol. 1, p. 666]. In Corpus Juris Secundum, it is stated : "Broadly speaking a Court is a judicial tribunal engaged in administration of justice". [See Vol. 21, p. 15]. The preamble and long title of CPC speak of "Courts of civil judicature" and vocalises the premise that CPC is meant to "consolidate and amend the laws relating to the procedure of Courts of civil judicature". Section 110-C(2) of the Act requires Claims Tribunal to receive evidenced adduced by parties in making enquiry into any claim made in the application filed under Section 110-A for compensation and the Tribunal is required to follow procedure prescribed under CPC in that regard. It is obviously an essential attribute of the Claims Tribunal that it acts judicially and exercises civil jurisdiction in deciding claims relating to civil wrongs and civil liability, of tort-feasors and liability also of insurers, arising out of statutory and contractual obligations. Jurisdiction of the Tribunal in applying any provision of the CPC for exercising any power in accordance with procedure prescribed in CPC is not impaired in any manner under Act. Indeed, if the test of 'trappings', laid down by the Apex Court in Darshana Devi's case, 1979 ACJ 205 (SC) and Bhagwati Devi's case, 1983 ACJ 123 (SC), is applied, same conclusion is reached that application of the provisions of Section 36 et. seq. and Order 21, C.P.C. to Claims Tribunal is not barred."
26. Relying upon the aforesaid citations, Mr. Banik contended that since the points, which have been raised by Mr. Dasgupta is no longer res Integra, no interference is warranted with the orders impugned.
27. Let me now consider the submissions of the learned Advocates of the respective parties in the background of the instant case.
28. In view of the larger bench decision of the Hon'ble High Court of Madhya Pradesh in the case of Sarmaniya Bai (supra), it appears to this Court that the first question of law as formulated above is no longer a res Integra. Accordingly, by following the said larger bench decision of the Madhya Pradesh High Court I hold that the provision of Order 21 of the Code of Civil Procedure is applicable to the Tribunal for recovery of the awarded money under Section 174 of the said Act.
29. With regard to the second question of law as formulated above, I find that the answer to the said question depends upon as to whether the Manager of the bank can be described as a public officer as defined in Section 2(17) of the Code of Civil Procedure.
30. For ascertaining answer to the said question, the effect of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 is to be considered first.
31. The Hon'ble Supreme Court in the case of Ashoka Marketing Ltd. (supra) has elaborately discussed the effect of the said Act in paragraph 14 thereof which is set out hereunder as follows:-
"14. The nationalised banks have been established under the Banks Nationalisation Act, wherein the nationalised banks have been described as 'corresponding new bank'. In Sub-section (i) of Section 3 of the Banks Nationalisation Act, it has been provided that on the commencement of the said Act, there shall be constituted such corresponding new banks as are specified in the First Schedule. In Sub-section (2) of Section 3, it is laid down that the paid-up capital of every corresponding new bank constituted under Sub-section (1) shall, until any provision is made in this behalf in any scheme made under Section 9, be equal to the paid-up capital of the existing bank in relation to which it is the corresponding new bank. Sub-section (3) of Section 3 provides that the entire capital of the new bank shall stand vested in, and allowed to the Central Government. Sub-section (4) of Section 3 lays down that every corresponding new bank shall be a body corporate with perpetual succession and a common seal with power, subject to the provision of the said Act, to acquire, hold and dispose of property, and to contract, and may sue and be sued in its name. From the aforesaid provisions contained in Section 3 of the Banks Nationalisation Act. It is evident that the nationalised banks have been established under the provisions of the said Act and the same are distinct juristic persons with perpetual succession and the power to acquire, hold and dispose of property and to contact and having the right to sue and be sued in their own name and further that the entire capital of the said banks is vested in the Central Government, meaning thereby, that the said banks are owned by the Central Government."
32. The effect of nationalisation of the banks has further been elaborated in paragraphs 18 and 19 of the said decision which runs as follows :-
"18. Reference has already been made to the provisions of the Banks Nationalisation Act which shows that the nationalised bank has been constituted as a district juristic person by the Act and it is owned by the Central Government. There are other provisions in the Banks Nationalisation Act which show that the general superintendence, direction and management of the affairs of the business of the bank is vested in a Board of Directors constituted by the Central Government and the Central Government has the power to remove the person from the membership of the Board of Directors (section 7(2) and 7(3)] and in the discharge of its functions the bank is to be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve Bank give (section 8). This indicates that the nationalised bank has all the attributes of the new pattern of public corporation."
"19. Merely because the expression 'body corporate* has been used in relation to the nationalised banks in Section 3(4) of the Banks Nationalisation Act and the expression corporation' has not been used, does not mean that the nationalised 'bank is not a corporation. The expression 'body corporate' is used in legal parlance to mean 'a public or private corporation' (Black's Law Dictionary p. 159)."
33. The said decision has been subsequently followed by the Hon'ble Supreme Court in the case of Union of India v. Ashok Kumar Mitra though in different context but the findings of the Hon'ble Supreme Court on the effect of nationalisation of the Bank, can certainly help this Court to resolve the dispute raised in these petitions.
34. In this regard, I must mention that the decision cited by Mr. Dasgupta in the case of National Insurance Co. Ltd. (supra) has no application in the facts of the instant case as the Hon'ble Supreme Court in the said decision never had the occasion to consider the issue which is involved in these revisional applications.
35. In view of the said decision of the Constitution Bench of the Hon'ble Supreme Court as well as the other citation of the Apex Court of the land as aforesaid, this Court can safely conclude that the nationalised bank is a corporation created by the Central Act and is owned and controlled by the Central Government. If that be so, then the Manager of the said bank can also be held as public officer within the meaning of Section 2(17)(g) of the Code of Civil Procedure.
36. Before parting with, I like to deal with the last contention of Mr. Dasgupta with regard to the point of excessive delegation of power with the state regarding its rule making authority.
37. On plain reading of Section 174 of the said Act, it appears to this Court that the said provision consists of three parts. In the first part it contemplates an application from the holder of the award. In the second part, it contemplates that the Tribunal may issue a certificate to the Collector for recovery of awarded money. The third part contemplates recovery of the certificated amount by the Collector as arrear land revenue.
38. Thus, the last part will be workable only when the certificate will be issued by the Tribunal to the Collector. The use of expression may in the second part signifies that other option is also available to the Tribunal. The other option, of course, has not been mentioned in the said provision. But in my considered view, when the power to recover the awarded money has been given to the Tribunal, the Tribunal can no doubt exercise its power in accordance with the mode as prescribed in the Rules which have been framed by the State Government by virtue of its power given under Section 176 of the said Act.
39. Sub-Rules (c) and (d) to Rule 342 read with Sub-Rule (e) to Rule 343 prescribes the mode of recovery by the Tribunal as Civil Court as per the provision contained in Civil Procedure Code.
40. As such, I do not find any illegality in applying the provision of the Civil Procedure Code in the process of recovery of the awarded money by the Tribunal.
41. It is not case where the provision for recovery is absent in the statute. The provision for recovery is very much present in the statute. How such provision can be worked out can very well be left to be determined to the Rule making power of the State.
42. It is not a case where essential legislative function has been delegated by the legislature to the Rule making power of the State. Essential legislative function is the vesting of authority upon the Tribunal to recover the awarded money which has been done by the legislature in the instant case. As such, the principle as laid down in the case of Vasarital Maganbhai (supra) has no application in the present case.
43. That apart, sitting in this jurisdiction, this Court cannot declare the Rules as ultra vires. As such, this Court will have to proceed on the basis of the Rules as it is.
Accordingly, I do not find any justification in interfering with the orders impugned. These revisional applications, thus, stand rejected.
There will be, however, no order as to costs.
Urgent xerox certified copy of this Judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.