Elsiy Johny v. Kerala Vijaya Kuries & Loans — 1995 DIGILAW 133 (KER)

ORDER P.A. Mohammed, J. 1. The petitioner in I.A. No. 254 of 1993 in O.S. No. 30 of 1992 on the file of the II Additional Munsiff's Court, Thrissur, is the revision petitioner. The revision is against an order in the above I.A. refusing to stay the trial of the suits, O.S. Nos. 1535/91, 30/92, 33/92, 34/92, 38/92, 92/92, 93/92, 538/92 and 1064/92. These suits were also pending in the court where O.S. No. 30/92 was filed. They were filed by the first respondent -company called 'Kerala Vijaya Kuries and Loans'. The suits are for recovery of money from the petitioner and others due under Kury Security Agreements. 2. I.A. No. 254/93 is filed praying to stay the trial of the suits under S.10 of the Code of Civil Procedure. This prayer was sought on the basis that the appeals arising from Company Petitions. C.P. Nos. 58 and 59 of 1989 are pending before this court and T.P. No. 6/91 filed by the Company is pending before the Sub Court, Thrissur. The case of the petitioner is that since the issues involved in the suit and the proceeding in Company Petitions as well as the Insolvency Petition are one and the same, the suits are liable to be stayed. The stay of the trial of the suit as authorised under S.10 of the C.P.C. can be ordered only in a case where "the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed". In order to resolve the dispute in this case, this court had the benefit of perusing orders in C.P. Nos. 58 and 59 of 1989. Neither the petitioner nor the respondents 2 to 7 are parties to the said Company Petitions. The first respondent in both the Company Petitions namely, Kerala Vijaya Loans and Chitties (P) Ltd. is the first respondent in the present I.A. No. 254/93. Therefore, only because the first respondent Company is a party in C.P. Nos. 58 and 59 of 1989, it cannot be said that the parties in both the cases are one and the same. The C.P. Nos. Therefore, only because the first respondent Company is a party in C.P. Nos. 58 and 59 of 1989, it cannot be said that the parties in both the cases are one and the same. The C.P. Nos. 58 and 59 of 1989 are petitions under S.397 and 398 of the Companies Act, playing mainly "to declare that the resolution and the decision thereon to issue further shares at the meeting as per notice dated 30th November 1989 is mala fide, to direct that the shares, if any, allotted are cancelled, to direct the company to allot the unissued shares to the existing members and to declare that the transfer of any shares to third parties who are not existing members was illegal and invalid and to cancel the transfers, if any". What is involved in the above Company Petitions is a dispute between the Company and its directors and shareholders regarding the rectification of shares. On the other hand, the subject matter involved in the suit is the recovery of the money due from the petitioner and respondents 2 to 7 under the chitty transaction. Therefore, it is arduous for this court to say that the issues involved in the Company Petition and present suits are directly or substantially the same. 3. It is submitted that the first respondent Company has filed I.P. No. 6/91 before the Sub Court, Thrissur. It is alleged that the petitioner and her husband are defaulters. However, the issue involved in the suits sought to be stayed is not directly and substantially in issue in the Insolvency Proceedings which authorises the invocation of S.10 of C.P.C. It is brought to my notice that in the Insolvency Petition the amounts due under the aforesaid suits are referred to in the Schedule attached thereto. That only means the amounts sought to be recovered from the petitioner and others are the assets of the Company available for distribution and there is no bar for taking steps to recover such amounts from the defaulters. 4. Learned counsel for the petitioner however urged that at any rate the aforesaid suits shall be stayed by invoking the provisions contained in S.151 of the Code of Civil Procedure. The contention is that this court has ample power to stay the trial of the suits invoking the inherent power under the said section. 4. Learned counsel for the petitioner however urged that at any rate the aforesaid suits shall be stayed by invoking the provisions contained in S.151 of the Code of Civil Procedure. The contention is that this court has ample power to stay the trial of the suits invoking the inherent power under the said section. When specific power to do certain acts is conferred by the statute, the court cannot invoke the inherent power, so argues the 1st respondent. The impression that the inherent powers of court are not controlled by express provisions of the statute and therefore can be resorted to in spite of express provision cannot be countenanced. The words contained in S.151 no doubt appear to be rather wide since it reads "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". However, the decisions of the Supreme Court by construction limited the scope of the said section as pointed out in M/s Ram Chand and Sons Sugar Mills Pvt. Ltd. v. Kanhayaial Bhargava and others AIR 1966 SC 1899 . After discussing the decisions in Padam Sen v. State of U.P. AIR 1961 SC 218 , Manohar Lal Chopra v. Raja Seth Hiralal AIR 1962 SC 527 and Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 the Supreme Court in Ram Chand's case AIR 1966 SC 1899 supra held: "The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or conies into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the Court conferred under S.151 of the Code to make a suitable order to prevent the abuse of the process of the court". 5. Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the Court conferred under S.151 of the Code to make a suitable order to prevent the abuse of the process of the court". 5. The Supreme Court in Nainsingh v. Koonwarjee and others AIR 1970 SC 997 observed: "Under the inherent power of Courts recognised by S.151 C.P.C., a court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of S.151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under S.151 of the Code cannot be exercised as an appellate power." However, the learned counsel has brought to my notice the decision of the Madras High Court in Krishnan v. Krishnamurthy AIR 1982 Mad. 101 where decisions of the Supreme Court in Arjun Singh's case AIR 1964 SC 993 and Nainsingh's case AIR 1970 SC 997 were discussed and thereafter held: "But where the Code is silent and where the exercise of power is not opposed to of prohibited by the provisions of the Code, there could be no doubt that the court invokes its inherent jurisdiction if it is satisfied that it is necessary for the ends of justice or to prevent the abuse of the process of the court." 6. In view of the discussion herein before it is difficult for this court to say that there would be failure of justice if the trial of suits is not stayed. That the matter in issue in the suits sought to be stayed is not directly or substantially in issue either in the Company Petition or in the I.P. proceedings is found against the petitioner. Then the same grounds are not available even if the power of this court under S.151 is invoked. If the trial is proceeded within the suits now stayed by this court the petitioner will not in any way be prejudiced. Then the same grounds are not available even if the power of this court under S.151 is invoked. If the trial is proceeded within the suits now stayed by this court the petitioner will not in any way be prejudiced. In case the decree is passed in the suits it will be subject to the decision in the insolvency proceeding and the final decision in the. Company Cases even assuming those two proceedings have some relevance in the matter. The trial of a properly constituted suit before a competent court cannot ordinarily be stayed invoking the inherent powers of the court under S.151 unless there are strong circumstances necessary for the ends of justice or to prevent the abuse of the process of the court. The stay of the proceedings will necessarily delay the final adjudication of the dispute between the parties. I do not see any justifiable circumstances in this case to stay the trial of the suits even under the inherent powers of this court under S.151 of the C.P.C. The Civil Revision Petition is accordingly dismissed. No order as to costs.