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2000 DIGILAW 755 (DEL)

MADAN LAL AND SONS v. UNION OF INDIA

2000-09-01

A.D.SINGH, M.K.SHARMA

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Anil Dev Singh ( 1 ) THE petitioner, a partnership firm, assails the order of the railway Claims Tribunal (for short the tribunal ) dated 24/9/1991. By that order the Tribunal decided that it had jurisdiction to deal with the dispute between the petitioner and railway administration, respondent Nos. 1 and 2. The petitioner in this writ petition also seeks a declaration that the Tribunal has no jurisdiction to proceed with transfer of Case No. TA-I-584 of 1990 which was originally pending in this court before coming into force of the railway Claims Tribunal Act, 1987 (for short the Tribunal Act ). Besides the petitioner seeks transfer of the case from the tribunal to this court. ( 2 ) THE facts lie in a narrow compass. The petitioner claims to be a partnership firm registered with the Registrar of Firms, delhi under the Indian Partnership Act, 1932. On 26/10/1986, petitioner instituted a suit, being Suit No. 841 of 1986, for recovery of Rs. 1,28,520 with interest at the rate of 12 per cent per annum and costs against the Union of India through General manager, Northern Railway, New Delhi; the General Manager, Eastern Railway, calcutta; and one Bimal Roy, respondent nos. 1, 2 and 3 respectively in this court. The suit was based on the ground that the petitioner had booked certain goods with respondent Nos. 1 and 2 through its agent, but due to fraud, collusion and conspiracy of respondent Nos. 1 to 3, the same were not delivered at the requisite destination. Respondent Nos. 1 to 3 were set ex parte as they absented themselves in the proceedings in the suit. The suit of the petitioner was decreed ex parte against respondent nos. 1 to 3 and in favour of the petitioner by the learned single Judge of this court on 18/9/1987. ( 3 ) ON 7/5/88 the petitioner filed an execution application against the judgment- debtors/respondent Nos. 1 to 3 herein. Sometime in July, 1988, respondent Nos. 1 and 2 moved an application under Order ix, rule 13, Civil Procedure Code being i. A. No. 3643 of 1988, for setting aside of the ex parte decree. The said respondents also moved applications for condonation of delay (I. A. No. 7031 of 1988) in filing the I. A. No. 3643 of 1988 and for stay of execution of decree (I. A. No. 4247 of 1988 ). The said respondents also moved applications for condonation of delay (I. A. No. 7031 of 1988) in filing the I. A. No. 3643 of 1988 and for stay of execution of decree (I. A. No. 4247 of 1988 ). On 29/7/88 the learned single Judge stayed the execution of the decree. In the meanwhile the Tribunal Act came into force and by virtue of section 24 thereof, the matter was transferred to the Railway claims Tribunal. The Tribunal on 29/11/90 set aside the ex-parte decree at the instance of respondent Nos. 1 and 2. On 14. 1. 1991 the petitioner herein, filed an application under rule 44 of the Rules framed under the Tribunal Act before the Tribunal for the following relief: " (A) that it may be held that this hon ble Tribunal has no jurisdiction/ power/authority to proceed in the instant case in view of circumstances stated herein above; (B) all the orders passed by this Hon ble tribunal after the transfer of the instant case from the Hon ble High Court of delhi till date may kindly be recalled/ modified/varied and be treated as null and void since this Tribunal had no jurisdiction to proceed against a private party under the aforesaid circumstances; (C) that the instant case may kindly be transferred/referred back to the Hon ble high Court of Delhi for trial from the stage at which it was received by the hon ble Tribunal from Hon ble High court of Delhi; (D) any other order as this Hon ble tribunal may deem fit and proper may also be passed in favour of the applicant to achieve the ends of justice. " ( 4 ) THIS application was contested by respondent Nos. 1 and 2. On 24/9/1991 the tribunal rejected the application and observed that under section 15 of the Act on and from the appointed date, no court or other authority shall have or be entitled to exercise any jurisdiction or power or authority in relation to the matters referred to in sub-section (1) of section 13 of the act. It was also noticed that the High Court gave a specific direction on 5/11/1990, for transfer of the case to the Tribunal. The order of the Tribunal alludes to the statement made by Mr. It was also noticed that the High Court gave a specific direction on 5/11/1990, for transfer of the case to the Tribunal. The order of the Tribunal alludes to the statement made by Mr. Gambhir, learned counsel for the petitioner herein, that the Tribunal has jurisdiction to entertain the case and the application for setting aside the ex pane decree, which was originally filed before the High Court. The Tribunal was also of the opinion that insofar as the dispute between the petitioner and the railway administration was concerned, the same fell under clause 13 (1) (a) of the Tribunal act and this being so, no court or authority was entitled to exercise any jurisdiction in the matter with effect from the appointed day, namely, 8/11/1989. It is this order of the Tribunal which has been challenged before us. ( 5 ) LEARNED counsel for the petitioner raised the following pleas: (1) That after the passing of the decree, the application of the respondent Nos. 1 and 2 pending before the learned single judge of this court could not have been transferred to the Railway Claims tribunal as it is a suit or a claim which could be transferred under section 24 of the Act. Since the suit/claim of the petitioner had culminated in a decree, provisions of section 24 read with section 15 of the Act were not applicable. (2) The Tribunal does not have jurisdiction to adjudicate the claim of the petitioner as one of the defendants/ respondents, Bimal Roy is a private party. (3) Section 24 of the Act is unconstitutional. (4) The ex pane order passed by the high Court decreeing the suit could never be set aside by the Tribunal. ( 6 ) WE have considered the submissions of learned counsel for the petitioner. Insofar as the first submission of the learned counsel for the petitioner is concerned, it will be necessary to refer to sections 13, 15 and 24 of the Tribunal Act. These sections to the extent they are relevant, are set out below: "13. ( 6 ) WE have considered the submissions of learned counsel for the petitioner. Insofar as the first submission of the learned counsel for the petitioner is concerned, it will be necessary to refer to sections 13, 15 and 24 of the Tribunal Act. These sections to the extent they are relevant, are set out below: "13. Jurisdiction, powers and authority of Claims Tribunal (1) The Claims tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority, as were exercisable immediately before that day by any civil court or a Claims Commissioner appointed under the provisions of the railways Act, (a) relating to the responsibility of the railway administrations as carriers under chapter VII of the Railways Act in respect of claims for (i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway; (ii) compensation payable under section 82-A of the Railways Act or the Rules made thereunder; and xxx xxx xxx 15. Bar of jurisdiction. On and from the appointed day, no court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-sections (1) and (1-A) of section 13. 24. Transfer of pending cases. (1) every suit, claim or other legal proceeding (other than an appeal) pending before any court. Claims Commissioner or other authority immediately before the appointed day, or, as the case may be, the date of commencement of the provisions of sub-section (1-A) of section 13, being a suit, claim or proceeding, the cause of action whereon it is based is such that it would have been, if it had arisen after the appointed day, or, as the case may be, the date of commencement of the provisions of sub-section (1-A) of section 13, within the jurisdiction of the Claims Tribunal, shall stand transferred on that day or, as the case may be, date to the Claims Tribunal. (2) Where any suit, claim or other legal proceeding stands transferred from any court. Claims Commissioner or other authority to the Claims Tribunal under sub-section (1), (a) the court. (2) Where any suit, claim or other legal proceeding stands transferred from any court. Claims Commissioner or other authority to the Claims Tribunal under sub-section (1), (a) the court. Claims Commissioner or other authority shall, as soon as may be after such transfer, forward the records of such suit, claim or other legal proceeding to the Claims Tribunal; (b) the Claims Tribunal may, on receipt of such records, proceed to deal with such suit, claim or other legal proceeding, so far as may be, in the same manner as an application, from the stage which was reached before such transfer or from any earlier stage or de novo as the Claims Tribunal may deem fit. " ( 7 ) A perusal of these provisions, inter-alia, show that the Tribunal has the exclusive jurisdiction on and from the appointed day to deal with matter relating to compensation for loss, destruction, damage, deterioration or non-delivery of goods entrusted to the railway administration for carriage by railway. For this purpose, the tribunal is entitled to exercise powers and authority as were exercisable immediately before the appointed day by any civil court or the Claims Commissioner appointed under the provisions of the Act. While the tribunal Act confers jurisdiction, power and authority on the Tribunal with regard to the matters specified in section 13 of the act, at the same time it bars the jurisdiction of court or other authority in such matters under section 15 of the Act. Every suit, claim and legal proceeding other than an appeal pending before any court, Claims commissioner or any other authority relating to matters falling in section 13 of the act automatically stands transferred to the tribunal under section 24 (1) thereof. After such transfer the court. Claims Commissioner or any other authority, as the case may be, are mandatory required under section 24 (2) (a) to forward the records of such suit, claim or other legal proceedings to the Tribunal. Since the Us between the parties in the instant case relates to non-delivery of goods entrusted to the railway administration for carriage by railway, the jurisdiction of the High Court was extinguished from the appointed day and it was only the Tribunal which was entitled to exercise jurisdiction in the matter. Since the Us between the parties in the instant case relates to non-delivery of goods entrusted to the railway administration for carriage by railway, the jurisdiction of the High Court was extinguished from the appointed day and it was only the Tribunal which was entitled to exercise jurisdiction in the matter. Not only sucovered by section 13 of the Act fall within the jurisdiction of the Claims Tribunal, but the same is true for all other legal proceedings pending before any court, Claims commissioner or any other authority relating to such disputes. Even though the suit of the petitioner stood decreed by the High court, other proceedings arising therefrom as already noted above, were pending before the learned single Judge of this court immediately before the appointed day. In Allahabad Bank v. Canara Bank, (2000) 4 SCC 406 , the Apex Court while construing the word proceedings occurring in section 31 of Recovery of Debts due to Banks and Financial Institutions act, 1993, held as follows: ". . . IN our view, the word proceedings in section 31 includes execution proceedings pending before a civil court before the commencement of the Act. . . " ( 8 ) TO the same effect is another judgment of the Apex Court in Punjab National bank v. Chajju Ram, JT 2000 (8) SC 456. On the parity of reasoning, the word proceedings occurring in section 24 of the tribunal Act would include the proceedings for setting aside of the ex parte decree which was passed by the learned single judge of this court before the commencement of the Tribunal Act. According to section 24 of the Tribunal Act, these proceedings stood transferred to the Tribunal by sheer force of this section which provision is self-operative inasmuch as the transfer is automatic and only file of the case was to be forwarded to the Tribunal. In view of the aforesaid discussion, we do not find any force in the plea of the petitioner that the proceedings pending before the learned single Judge of this court after the passing of the decree could not be transferred to the Tribunal. It needs to be noted that even the counsel for the petitioner agreed before the Tribunal at one stage that the Tribunal had the jurisdiction to deal with the matter. It needs to be noted that even the counsel for the petitioner agreed before the Tribunal at one stage that the Tribunal had the jurisdiction to deal with the matter. We are not holding this concession made by learned counsel against the petitioner but according to the provisions of the Act, it is the tribunal alone which has the jurisdiction in the matter. ( 9 ) THE second plea of the petitioner also does not hold good on the aforesaid reasoning based on the provisions of the act. A conjoint reading of sections 13 (1) (a) (i), 15 and 24 of the Act leave no manner of doubt that compensation for loss on account of non-delivery of goods entrusted to railway administration for carriage by railway, is required to be dealt with by the Tribunal from the appointed day, viz. , 8/11/1989 and the jurisdiction of other forums is barred. It may be noted that the tribunal is only proceeding against the railway administration in the case. The tribunal is not adjudicating the disputes between the petitioner and Bimal Roy, respondent No. 3. In this regard it will be apposite to refer to the observation of the tribunal: "this Tribunal is, therefore, duty-bound to proceed to determine the disputes between applicant and respondent No. 1 in view of aforesaid provisions in the act as also in view of the directions of Hon ble Delhi High Court. The petitioner to proceed against respondent no. 1 before this Tribunal. Be listed for framing issues on 8/10/1991. If after decision of disputes between applicant and the respondent No. 1, some further disputes are felt by applicant to be got decided against respondent No. 3, the same be referred to the civil court (who may have pecuniary jurisdiction at that time ). "keeping in view the aforesaid observations of the Tribunal and having regard to the provisions of sections 13, 15 and 24 of the act, we do not find any substance in the argument of the learned counsel for the petitioner. The second plea of the learned counsel for the petitioner is, therefore, rejected. ( 10 ) AS regards the third plea urged by the learned counsel for the petitioner is concerned, we do not see how section 24 of the Act can be said to be ultra virus the constitution. The second plea of the learned counsel for the petitioner is, therefore, rejected. ( 10 ) AS regards the third plea urged by the learned counsel for the petitioner is concerned, we do not see how section 24 of the Act can be said to be ultra virus the constitution. The writ petition is absolutely silent as to why the petitioner claims the said section to be unconstitutional. Mr. Gambhir, learned counsel for the petitioner, however, submitted that section 24 of the Act does not give any guidance in the matter relating to the transfer of cases pending on the appointed day before court, claims Commissioner or other authority. According to him, it would be in the discretion of the court. Claims Commissioner or other authority where the matter may be pending to transfer or not to transfer the us falling under section 13 of the Act to the Tribunal. The argument is fallacious. It proceeds on misreading of section 24 of the Act. Section 24 of the Act does not leave any discretion much less an unguided one to any court, Claims Commissioner or authority as on the appointed day, the suit, claim or other legal proceedings by operation of the said provision would stand transferred to the Tribunal because of the words shall stand transferred occurring therein. The word shall signifies the mandatory nature of the provision. Therefore, we cannot accept the contention of the learned counsel for the petitioner. ` ( 11 ) NOW coming to the last plea raised by the learned counsel for the petitioner, it would be seen that the petitioner has not challenged the order of the Tribunal dated 29/11/1990 whereby the application of the railway administration for setting aside of the exparte decree was accepted. The plea appears to be an afterthought. In any case, a combined reading of sections 13, 15 and 24 of the Act shows that Parliament has transplanted the jurisdiction of the civil court regarding matters specified in section 13 including claims for compensation for loss, destruction, damage, deterioration or non-delivery of goods entrusted to railway administration for carriage by railway in the Claims Tribunal from the appointed day. Thus for all practical purposes the tribunal would step into the shoes of the civil court and exercise all such jurisdiction, power and authority as were exercisable immediately before the appointed day by the civil court in respect of claims for compensation, etc. Therefore, since the high Court could exercise jurisdiction under Order IX, rule 13, Civil Procedure code to set aside its own order, the Tribunal on transfer of the case under section 24 of the Act will also have the same power. The Tribunal in the instant case has supplanted the High Court and what the high Court could do, the Tribunal would also be entitled to do. ( 12 ) IN view of the aforesaid discussion, we find no merit in the submissions of the petitioner. Accordingly, the writ petition fails and the same is hereby dismissed. No costs. Petition dismissed.