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2002 DIGILAW 510 (CAL)

Bhagya Laxmi Maulik v. State Bank of India

2002-08-01

Alok Kumar Basu

body2002
JUDGMENT Alok Kumar Basu, J. Originally Provabati Chatterjee also known as Provabati Devi since deceased, filed this application under Article 227 of the Constitution of India challenging the order dated 13th January, 2000 passed by Presiding Officer, Debt Recovery Tribunal in connection with Misc. Case No. 23 of 1999 arising out of T.A. No. 96 of 1995 and on the death of said Provabati Devi during pendency of the present application, Bhagya Laxmi Maulik & Ors. have been substituted in place of the original petitioner and those substituted petitioners are now pursuing the said application. 2. It is available from the application that the State Bank of India, opposite party No. 1 of the present application filed a Title Suit No. 64 of 1988 against opposite party No. 2 as defendant No. 1 and Provabati Devi as defendant No. 2 respectively before the Assistant District Judge, 2nd Court, Alipore for realisation of bank dues and subsequently after establishment of Debt Recovery Tribunal, the said Title Suit was transferred in the file of Tribunal and was renumbered as T.A. No. 96 of 1995. 3. It is the case of the petitioner that without service of any summons upon her either in the original Title Suit or in the transfer application before the Tribunal, the Tribunal passed an ex parte decree against both opposite party No. 2 and the petitioner and only after getting information on or about 14th November, 1998 about such an ex parte decree, the petitioner filed an application for setting aside the said ex parte decree along with a separate application for condonation of delay in filing the said application on 14th May, 1999. The petitioner has stated that the Tribunal by its order dated 13th January, 2000 rejected the said application for setting aside the exparte decree both on merit and also on the ground that it was not maintainable being hopelessly barred by law of limitation. The petitioner has challenged the said order of the Tribunal by filing this application under Article 227 of the Constitution. 4. At the time of hearing of this application in presence of both the sides, the learned Advocate Mr. The petitioner has challenged the said order of the Tribunal by filing this application under Article 227 of the Constitution. 4. At the time of hearing of this application in presence of both the sides, the learned Advocate Mr. Basu, appearing on behalf of the opposite party bank submits that under instruction of his client he wants to raise a preliminary question regarding maintainability of the present application before this Court and he further submits that without entering into merits of the present petition, the preliminary point on maintainability may be decided by this Court. With the consent of the learned Advocate Mr. Chatterjee, appearing for the present petitioners, it is decided that after hearing both the sides decision may be recorded on the preliminary point of maintainability as raised by the opposite party bank. 5. Mr. Basu, in support of his preliminary point of maintainability submits that the impugned order is admittedly a final order determining liability of the petitioners towards the opposite party bank and in view of section 20 of the Tribunal Act, the impugned order is an appeal-able order and admittedly when the petitioners did not prefer any appeal before the appropriate forum as provided in the Act itself, the petitioners are not entitled to approach this Court under Article 227 of the Constitution challenging legality and propriety of the impugned order. Mr. Basu in support of this contention has relied on the decision of the Hon'ble Supreme Court in the case of Punjab National Bank vs. O.C. Krishnan & Ors., reported in 2001(6) Supreme Court Cases, page 569 and also on the decisions of two learned Single Judge of this Court in the case of Jenson & Nicholson (India) Ltd. vs. Industrial Investment Bank of India & Ors. and Prithis Kr. Roy vs. State Bank of Indore & Ors., reported in 2002(1) C.L.J., page 219 and 2002(1) C.L.J., page 407 respectively. Mr. Basu concludes that the Apex Court in the case of Punjab National Bank (supra) has categorically observed and laid down the law that when there is provision of appeal in the Act and when there is an alternative remedy available, the High Court should not exercise jurisdiction under Article 227 in considering the prayer of the petitioners and Mr. Mr. Basu concludes that the Apex Court in the case of Punjab National Bank (supra) has categorically observed and laid down the law that when there is provision of appeal in the Act and when there is an alternative remedy available, the High Court should not exercise jurisdiction under Article 227 in considering the prayer of the petitioners and Mr. Basu submits that the decision of the Apex Court has been followed by this High Court in two other decisions already mentioned and in view of this legal position when the petitioners did not avail of the alternative remedy provided in the Act itself, the present application cannot be entertained and on this ground alone the present application is liable to be rejected. 6. Mr. Chatterjee, appearing for the petitioners has strongly opposed the submission of Mr. Basu on this preliminary point of maintainability. Mr. Chatterjee at the outset has challenged the very foundation of the submissions of Mr. Basu contending inter alia that Mr. Basu can not derive any benefit from the decision of the Apex Court as reported in Punjab National Bank (supra) and similarly, both the decisions of the learned Single Judge of this High Court as referred by Mr. Basu can in no way help Mr. Basu to establish his case on the question of maintainability. Mr. Chatterjee submits that it has been held in series of decisions of the Apex Court as to what nature of decision of the Apex Court would have the binding effect of law within the meaning of Article 141 of the Constitution and Mr. Chatterjee further submits that decision of the Apex Court would be considered to be the law of the land and usually have a binding force only when the particular issue shall be raised before the Apex Court for consideration and the Apex Court after proper discussion of the issue and after recording submissions of both the sides will come to a clear finding on the issue involved in the matter and only thereafter opinion or decision of the Apex Court shall be considered to be a law on that issue and shall have a binding effect. Mr. Chatterjee in support of this point has taken this Court through the decisions of the Hon'ble Supreme Court reported in 1991(4) Supreme Court Cases, page 139 (State of Uttar Pradesh & Anr. Mr. Chatterjee in support of this point has taken this Court through the decisions of the Hon'ble Supreme Court reported in 1991(4) Supreme Court Cases, page 139 (State of Uttar Pradesh & Anr. vs. Sinthetics and Chemicals Ltd. & Anr.), 1997(1) Supreme Court Cases, page 203 [Mittal Engineering Works (P) Ltd. vs. Collector of Central Excise, Mirat] and also 2000 (5) Supreme Court Cases, page 488 (Arnit Das vs. State of Bihar). 7. In view of the above legal position as clarified, Mr. Chatterjee submits that the Hon'ble Supreme Court did not lay down any law in the case of Punjab National Bank (supra) imposing an absolute bar for a litigant to take recourse to Constitutional provisions when there is also an alternative remedy available to the litigant and according to Mr. Chatterjee, in the said case, the Hon'ble Supreme Court only expressed desirability that when there is provision of appeal, the litigant should avail of that provision before approaching the High Court under Article 227 of the Constitution, particularly, in the perspective of the Tribunal Act which had the purpose of speedy disposal of cases involving claim of bank and other public financial institutions. Mr. Chatterjee submits that on the same analysis the decision reported in the case of Jenson & Nichol son (supra) and in the case of Prithis Kr. Roy (supra) cannot be of any help for the opposite party bank as in both the cases, the learned Judges drew their inspiration from the decision of the Apex Court reported in the case of Punjab National Bank (supra). 8. Mr. Roy (supra) cannot be of any help for the opposite party bank as in both the cases, the learned Judges drew their inspiration from the decision of the Apex Court reported in the case of Punjab National Bank (supra). 8. Mr. Chatterjee next contends that it is settled position of law that even if there is alternative remedy available to a litigant under a statute, the door of High Court which can be knocked by taking recourse to Constitutional provision, cannot be closed before a deserving litigant and in a case where there is an alternative remedy available to the litigant and the litigant approaches the High Court under Article 227 of the Constitution, it would be the discretion of the concerned High Court whether to entertain the application under Article 227 or to ask the litigant to avail of the alternative remedy and of course the High Court is required to exercise this discretion judiciously and it has been further laid down in several decisions of the Apex Court that if a litigant can prove that the impugned order has been passed by an authority having no jurisdiction or the impugned order is erroneous on the face of record or there has been manifest injustice from patent error, perversity of findings and arbitrary or capricious exercise of power, the High Court shall exercise the discretion in favour of the litigant approaching the High Court under Article 227 of the Constitution notwithstanding the fact that there is provision of appeal against the impugned order. Mr. Chatterjee in this context, has relied on a decision of the Apex Court in the case of A.V. Venkateswaran, Collector of Customs, Bombay vs. R.S. Wadhwani & Anr., reported in A.I.R. 1961 Supreme Court, page 1500. 9. Mr. Chatterjee submits that if it is established on analysis of the impugned order that the Tribunal passed the said order without jurisdiction then following the legal principle as stated above, this Court will have no hesitation to turn down the preliminary objection as raised by the opposite party bank challenging maintainability of the present application. 10. Mr. 9. Mr. Chatterjee submits that if it is established on analysis of the impugned order that the Tribunal passed the said order without jurisdiction then following the legal principle as stated above, this Court will have no hesitation to turn down the preliminary objection as raised by the opposite party bank challenging maintainability of the present application. 10. Mr. Chatterjee submits that from the copy of the order sheet of the record of the Tribunal it is available that no summons was served upon Provabati Devi either by the original Civil Court or by the Tribunal since it got jurisdiction over the matter after transfer of the case from the file of the Civil Court and the observation of the Tribunal that Provabati Devi was served with the summons is totally erroneous and baseless and when on this assumption alone, the impugned order was passed rejecting the prayer for setting aside the ex parte decree, this Court should entertain the application treating it as an exceptional one notwithstanding the fact that an alternative remedy in the form of appeal was also available to said Provabati Devi. 11. From the trend of submission made on behalf of the learned Advocate for the opposite party bank, it is true that the opposite party bank has been encouraged from the findings of the Apex Court given in the case of Punjab National Bank (supra) and also from two other decisions of this High Court dealing with the self same matter. Now, after taking into consideration the submissions of Mr. Chatterjee regarding the legal value and importance of the decision of the Apex Court given in the case of Punjab National Bank (supra), I am of the view that the position of law in this regard has been settled earlier by decisions of the Hon'ble Supreme Court and those decisions certainly satisfy all the necessary ingredients which make the decision of the Hon'ble Supreme Court as law of the land under Article 141 of the Constitution and which must have binding force on all other Courts of the land. 12. To substantiate my point in this regard, I would like to refer, first of all, the decision of the Hon'ble Apex Court in the case of C.A. Ibrahim vs. Income Tax Officer, Kottayam, reported in A.I.R. 1961 Supreme Court, page 609, then, I may refer the case of Miss. 12. To substantiate my point in this regard, I would like to refer, first of all, the decision of the Hon'ble Apex Court in the case of C.A. Ibrahim vs. Income Tax Officer, Kottayam, reported in A.I.R. 1961 Supreme Court, page 609, then, I may refer the case of Miss. Maneck Custodji Surjarji vs. Sarafazali Nawabali Mirza, reported in A.I.R. 1976 Supreme Court, page 2446. I may refer another decision of the Apex Court in the case of A. Venkatasubbiah Naidu vs. S. Chellappan & Ors., reported in (2000) 7 Supreme Court Cases, page 695 and finally, I rely on a Division Bench judgment of this High Court in the case of Drawings and Metals & Ors. vs. State Bank of India, reported in Calcutta Law Times 1992(2), page 289. 13. From the above mentioned decisions of the Apex Court and followed by the Division Bench of the High Court, it is available that the question whether an application under Article 227 of the Constitution shall be entertained when an alternative remedy is available was a substantial issue for consideration before the Apex Court and the Apex Court after considering submissions of the parties involved in those matters came to a clear observation that when alternative remedy is available High Court could not entertain application under Article 227 of the Constitution unless it is made out that a very exceptional case exists and there has been manifest injustice resulting from lack of jurisdiction, violation of the principle of natural justice, perversity of findings and arbitrary or capricious exercise of power. 14. Thus, if an attempt is made to reconcile the decisions referred to by Mr. Basu on behalf of the opposite party bank with the submissions made by Mr. Chatterjee on behalf of the petitioners and with the decisions referred to by Mr. 14. Thus, if an attempt is made to reconcile the decisions referred to by Mr. Basu on behalf of the opposite party bank with the submissions made by Mr. Chatterjee on behalf of the petitioners and with the decisions referred to by Mr. Chatterjee, the irresistible conclusion follows that as a matter of rule High Court should not entertain application under Article 227 where alternative remedy is available to the litigant, but, it has one exception and that exception is where the litigant can satisfy that the impugned order was passed by an authority without jurisdiction, in violation of the principle of natural justice and the impugned order is manifest injustice resulting from perversity of findings or arbitrary or capricious exercise of power, the High Court shall exercise its discretion in favour of the litigant and entertain the application under Article 227 of the Constitution notwithstanding the fact that an alternative remedy is available to that litigant. 15. The above legal position now takes me to the next and the vital question raised by Mr. Chatterjee for consideration. Mr. Chatterjee submits that the Tribunal had no jurisdiction at all to pass the ex parte decree against Provabati Devi when it is clear from the order sheets that no summons was ever served upon Provabati Devi either by the Civil Court or by the Tribunal and when this was the factual position, the present petitioners can certainly approach the Court under Article 227 of the Constitution because the alternative remedy available to them was not considered to be sufficient and this Court empowered to exercise power of superintendence is competent to quash the impugned order when the impugned order is without jurisdiction and passed in violation of the basic principle of natural justice. 16. Mr. Basu, on behalf of the opposite party bank has strongly challenged the above submissions made by Mr. Chatterjee contending inter alia that the prayer of setting aside the ex parte decree was first rejected on the question of limitation as the said application was filed long after the period of limitation and there was no proper explanation behind the prayer for condonation of the delay and Mr. Chatterjee contending inter alia that the prayer of setting aside the ex parte decree was first rejected on the question of limitation as the said application was filed long after the period of limitation and there was no proper explanation behind the prayer for condonation of the delay and Mr. Basu submits that when the prayer for setting aside ex parte decree has been rejected on the point of limitation and when no challenge has been thrown against this part of the order on the question of alleged jurisdiction or on the ground of alleged violation of the principle of natural justice, this Court should not enter into the 2nd part of the impugned order which has discussed the merit of the petition. 17. After hearing the submission of both the sides, I am inclined to accept the view expressed by Mr. Basu only because the prayer of setting aside the exparte decree appears to have been rejected firstly, on the ground of limitation and in my opinion the Tribunal could have rejected the prayer on the ground of limitation alone as it appears from the impugned order, the Tribunal was not satisfied with the explanation put forward by the petitioner behind the unusual delay in filing the petition and this part of the observation of the Tribunal has not been challenged by Mr. Chatterjee on the ground of lack of jurisdiction or on the ground of violation of the principle of natural justice and as such there is no scope for making further enquiry whether there is really any question of jurisdiction regarding the 2nd part of the order. 18. Thus, the settled position 9f law is that only in very exceptional cases and only when a petitioner can prove that there is an order passed by an authority having no jurisdiction or where the authority has passed the order in violation of principle of natural justice, the High Court can entertain an application under Article 227 of the Constitution even if an alternative remedy is available to the petitioner. But, in this case I am convinced after hearing both the sides and on examination of the impugned order that there is no merit behind the submission of the petitioner that the impugned order was passed without jurisdiction or there has been violation of the principle of natural justice in the matter of recording the impugned order and that being the position, I am inclined to accept the preliminary objection raised by the opposite party bank on the question of maintainability of this application and I am further inclined to hold that the present application under Article 227 of the Constitution cannot be entertained by this Court when there is alternative remedy available to the petitioner to challenge the impugned order under the statute. 19. Accordingly, the application filed under Article 227 of the Constitution is dismissed being not maintainable without any order as to costs. 20. Urgent xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all necessary formalities. Application dismissed.