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Patna High Court · body

1999 DIGILAW 1026 (PAT)

Ranjeet Kr. Tibrewal v. State Bank Of India

1999-09-30

M.Y.EQBAL

body1999
Judgment 1. This civil revision application is directed against the order dated 12.3.99 passed by Subjudge Vth, Ranchi whereby he has passed an order for transfer of Misc. case No. 5/95 to the Debt Recovery Tribunal, Patna. 2. Petitioners case is that the opposite party-Bank instituted Money suit No. 126/85 against the petitioner for the recovery of the dues of the Bank. It is stated that when the petitioner was served with a notice on 19.2.98 from the court of the Registrar, Debt Recovery Tribunal, Patna that one execution case no. 6/96 formerly pending in the court of the Subjudge, Ranchi, has been transferred to the Debt Recovery Tribunal, Patna and the said case is registered there was Execution case no. 2/98, the petitioner immediately went to Patna and came to know that the said execution case relates to a decree passed against him in the aforementioned Money suit No. 126/85 from the court of Vth Subjudge, Ranchi. The petitioner then got the records inspected and came to know that an ex parte decree was passed against him on 6.7.95. The petitioner then filed an application under Order IX rule 13 CPC read with section 151 CPC praying for setting aside the ex parte decree passed against him. The said application was filed in the court of Subjudge Vth, Ranchi and registered as Misc. case no. 5/98. 3. Since the court of Vth Subjudge was lying vacant, the petitioner filed an application under section 24 of the C.P.C. in the court of the Judicial Commissioner, Ranchi for transfer of the said Misc. case no. 5/98 from the court of Vth Subjudge, Ranchi. to any other court for disposal. The learned Judicial Commissioner did not transfer the case to any other court, rather, he disposed of the application holding that the Misc. case for setting aside the decree is within the jurisdiction of the Debt Recovery Tribunal. 4. It appears that the petitioner, thereafter filed an application before the Vth Addl. Subjudge, Ranchi submitting that the petition for setting aside the decree is maintainable before the court which passed the decree and prayed for hearing of the application. The learned Subjudge Vth, Ranchi, after hearing the petitioner, rejected the prayer of the petitioner and ordered for transfer of the case to the Debt Recovery Tribunal, Patna. 5. Mr. Subjudge, Ranchi submitting that the petition for setting aside the decree is maintainable before the court which passed the decree and prayed for hearing of the application. The learned Subjudge Vth, Ranchi, after hearing the petitioner, rejected the prayer of the petitioner and ordered for transfer of the case to the Debt Recovery Tribunal, Patna. 5. Mr. A.K. Srivastva, learned counel for the petitioner assailed the impugned order as being wholly illegal and without jurisdiction. Learned counsel submitted that the application U/O 9 rule 13 CPC for setting aside the ex parte decree is maintainable only in the court which passed the same and the Debt Recovery Tribunal has no jurisdiction to proceed with the Misc. case. 6. On the other hand, Mr. Kameshwar Prasad, learned Sr. counsel appearing for the opposite party-Bank submitted that in view of section 31 of the Recovery of Debt Act all proceedings are liable to be transferred to the Debt Recovery Tribunal and the court below rightly held that it has no jurisdiction to hear the application. 7. Before appreciating the rival contentions of the parties it would be useful to look into the provisions of section 31 of the Recovery of Debt due to Bank and Financial Institution Act, 1993. Section 31 reads as under: "31. Transfer of pending cases. (1) 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 : Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before any court. (2) Where any suit or other proceeding stands transferred from any court to a Tribunal under sub-section (1):- (a) the court shall, as soon as may be after such transfer, forward the records of such suit or other proceeding to the Tribunal; and (b) the tribunal may, on receipt of such records, proceed to deal with such suit or other proceeding, so far as may be, in the same manner as in the case of an application made under section 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit." 8. From bare reading of the foresaid provisions it is manifest that action 31 provides for transfer of suits or roceedings pending before any court. ccording to this provision suit or roceeding pending before any court shall land transferred after establishment of the Tribunal under the Act. From a combined reading of sections 17, 19, 30 and 1 of the said Act, it is clear that from a ppointed date the tribunal has exclusive jurisdiction to entertain and decide the aplications. The jurisdiction of courts, exept the writ jurisdiction of the High Courts and the Supreme Court has become barred and the civil courts have een divested from the powers to roceed further in the matter. Relevant rovisions of the Act have been considered by me in the case of Rajiv Sachdeva V/s. State Bank of India and ore. ( 1998 (3) PLJR 535 ) where I have held as follows: "From a bare reading of these provisions it is manifest that section 17 of the Act confers exclusive jurisdiction to the Tribunal to entertain and decide applications from the Bank and Financial institutions for recovery of debts due to such bank and financial institutions. Section 18 creates a bar of jurisdiction to a court other than High Court and Supreme Court exercising jurisdiction under Articles 226 and 227 of the Constitution. According to this section no courts or other authorities shall have jurisdiction to entertain and decide such applications filed by the Bank or other financial institutions for recovery of debts. Section 31 provides for transfer of all suits or proceedings pending before any court. According to this, all pending suits or proceedings pending before any court shall stand transferred after establishment of the Tribunal under the Act. Section 31 provides for transfer of all suits or proceedings pending before any court. According to this, all pending suits or proceedings pending before any court shall stand transferred after establishment of the Tribunal under the Act. From the combined reading of these provisions it is, therefore, clear that on and from the appointed date the Tribunal has exclusive jurisdiction to entertain and decide the applications from the Bank and financial institutions for recovery of debts. Further the jurisdiction of courts, except the writ jurisdiction of the High Court and Supreme Court, has become barred and the civil courts have been divested of the powers to proceed further in the matter and so far as the pending cases are concerned, the suits shall automatically stand transferred by operation of law and that the civil courts have to pass merely a formal order and have to forward the records of the case to the Tribunal." 9. In the case of M/s. Jagdamba Woolen Mills (P) Ltd. and others V/s. Addl. Civil Judge (Sr. Division), Ludhiana and Ors. reported in AIR 1999 Punjab & Haryana 42, the facts of the case was that after the decree was passed for recovery of certain amount in favour of the Bank, the execution case was levied and during the pendency of the execution case the aforesaid Act came into force. Consequently the executing court, as per the order, transferred the execution proceeding to the Debt Recovery Tribunal. The said order was challenged before the Punjab and Han/ana High Court. Their lordships, after considering the provisions of section 31 of the said Act held as under: "A perusal of this provision makes it clear that every suit or other proceedings pending before any court immediately before the date of establishment of a tribunal under this Act shall stand transferred on that date to such tribunal. It could not be seriously disputed that the word proceedings occurring in section 31 includes execution proceedings as well. The proviso, however, carves out an exception and states that sub-section (1) will not apply to any appeal which was pending before any Court. In terms of this provision the Regular First Appeal pending in this court cannot be transferred but the execution proceedings which are covered by sub-section (1) of section 31 of the Act will have to be transferred in terms of the mandate contained in this section." 10. In terms of this provision the Regular First Appeal pending in this court cannot be transferred but the execution proceedings which are covered by sub-section (1) of section 31 of the Act will have to be transferred in terms of the mandate contained in this section." 10. Having regard to the entire facts and circumstances of the case and the relevant provisions of law discussed hereinabove, I am of the opinion that no illegality has been committed by the court below in passing the impugned order holding that the Misc. proceeding for setting aside the ex parte decree is liable to be transferred to the court of Debt Recovery Tribunal, Patna. Hence, there is no merit in this civil revision application which is, accordingly, dismissed.