HARMONIC FOODS, BANGALORE v. DEBT RECOVERY APPELLATE TRIBUNAL
2002-03-21
CHANDRASHEKARAIAH
body2002
DigiLaw.ai
CHANDRASHEKARAIAH, J. ( 1 ) THE petitioners in this writ petition have challenged the order dated 30-8-2001 passed by the Debt Recovery Appellate Tribunal in M. A. No. 111 of 2001. ( 2 ) CONSEQUENT on the coming into force of Recovery of Debts Due to banks and Financial Institutions Act, 1993 (hereinafter referred to as 'act 1993'), the suit filed by the respondent 2 for recovery of certain amount in the Civil Court was transferred to the Debt Recovery Tribunal. After the transfer of the suit proceedings, the petitioners herein have made an application for retransfer of the proceedings to the Civil court. The said application was rejected by the Tribunal. As against the said order of rejection of the application for retransfer, the petitioners have preferred an appeal before the Debt Recovery Appellate Tribunal. The Appellate Tribunal, without considering whether the petitioner is entitled for seeking retransfer of the proceedings on the ground urged before it, has proceeded to dispose off the appeal stating that the very question is pending consideration before the Supreme Court. It is this order that is under challenge by the petitioner in this writ petition. ( 3 ) LEARNED Counsel appearing for the petitioner submits that the 1993 Act has taken away the vested right of appeal under Section 96 of the CPC which the petitioners could have availed in the event if the proceedings continued in the Civil Court. In support of this contention, the learned Counsel relied upon the decision in Hoosein Kasam Dada (India) Limited v State of Madhya Pradesh and Others. In my view the said decision has no application to the facts of the present case. No doubt, the right of appeal is a vested right. But in the instant case, the question is whether subsequent enactment has taken away the right of appeal or it is only a change of forum. The validity of 1993 Act has now been upheld by the Apex Court. ( 4 ) SECTION 18 of the Act 1993 reads as follows. "on and from the appointed day, no Court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to the matters specified in Section 17".
"on and from the appointed day, no Court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to the matters specified in Section 17". ( 5 ) UNDER Section 17, the Tribunal is conferred with the power on and from the appointed day, to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. Section 31 of the Act 1993 provides that every suit or other proceedings pending before the Civil Court immediately before the date of establishment of a Tribunal under the Act shall stand transferred on that date to such Tribunal. Section 34 of the Act reads as follows. "save as provided under sub-section (2), the provisions of this act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act". Section 1, sub-sections (1) and (4) of the Act 1993 reads as follows. " (1) This Act may be called the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. (2) xxx xxx xxx (3) xxx xxx xxx (4) The provisions of this Act shall not apply where the amount of debt due to any bank or financial institution or to a consortium of banks or financial institutions is less than ten lakh rupees or such other amount, being not less than one lakh rupees, as the central Government may, by notification, specify". A combined reading of the above said provisions makes it clear that wherever the subject-matter of the proceedings is more than rupees ten lakhs, the same is required to be transferred to the Tribunal constituted under the Act 1993. As per Section 18 of the Act 1993, no Court has got the power to adjudicate the dispute in respect of the matters which the tribunal is entitled to adjudicate. As per Section 31, by operation of law, all the proceedings in respect of which the provisions of Act 1993 are applicable shall stand transferred to the Tribunal constituted under the act 1993. Under Section 34 of the Act 1993 it has got overriding effect on all other laws.
As per Section 31, by operation of law, all the proceedings in respect of which the provisions of Act 1993 are applicable shall stand transferred to the Tribunal constituted under the act 1993. Under Section 34 of the Act 1993 it has got overriding effect on all other laws. ( 6 ) IN the instant case, it is not the case of the petitioner that the subject-matter is less than rupees ten lakhs and the provisions of the act 1993 have no application insofar as the proceeding which was pending before the Civil Court, before coming into force of Act 1993. Therefore, as on the date when Act 1993 came into force, the Civil Court had no jurisdiction to deal with the matters in respect of which the Tribunal has the jurisdiction to adjudicate the dispute. As stated earlier, the supreme Court has now upheld the validity of the provisions of the Act 1993. Hence, the petitioners in this writ petition are not entitled for retransfer of their case from the Tribunal to the Civil Court which had lost its jurisdiction over the subject-matter consequent on coming into force of Act 1993. ( 7 ) LEARNED Counsel appearing for the petitioner submits that in the event if the proceedings were allowed to be continued in the City Civil court, the petitioner could have challenged the judgment and decree to be passed by the Civil Court in an appeal as provided under Section 96 of the CPC and this vested right of appeal is now virtually taken away by the subsequent promulgation of the Act 1993. No doubt, the right of appeal is a vested right. But, once the jurisdiction of the Civil Court to deal with certain matters is taken away by subsequent enactment, the petitioners cannot ask for retransfer of their case. If the Tribunal were to pass an order on the application filed before it, the petitioner has a right of appeal under Section 20 of the Act 1993. Therefore, I am of the considered view that the petitioner is not deprived of right of appeal consequent on transfer of the proceedings to the Tribunal as they have a remedy of appeal to a different forum under Act 1993. Hence, I find no substance in any one of the contentions raised by the petitioner in this writ petition.
Therefore, I am of the considered view that the petitioner is not deprived of right of appeal consequent on transfer of the proceedings to the Tribunal as they have a remedy of appeal to a different forum under Act 1993. Hence, I find no substance in any one of the contentions raised by the petitioner in this writ petition. In the result, I pass the following: order Writ petition is rejected. --- *** --- .