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2005 DIGILAW 2609 (RAJ)

Bank of Rajasthan v. Krishna Kumar Mehta

2005-09-29

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-Heard learned Counsel for the parties. 2. The instant revision petition is directed against the order dated 09.08.2004 passed by Additional District Judge No. 1, Jodhpur (in short, “the trial Court” hereinafter) in Civil Misc. Case No. 69/2004 whereby application filed by the petitioner under Order 7 Rule 11, read with Section 151, CPC was rejected. .3. Suit for recovery of Rs. 8,90,096/-filed by the plaintiff bank was decreed ex parte against defendant No. 3 Krishna Kumar by the trial Court vide Judgment dated 27.02.2004. On 19.07.2004, defendant Krishna Kumar filed application under Order 9 Rule 13, CPC for setting aside the decree .alongwith application under Section 5, Limitation Act for condoning the delay. It may be noted that the liability of the decretal amount alongwith agreed interest at the rate of 17.10 per cent from the date of filing of the suit was fixed joint and several against the defendants. In the suit, it was also decreed that the plaintiff shall be entitled to recovery the amount by attachment and auction-sale of the immovable property and hypothecated articles of the defendants. 4. In the application moved by the plaintiff Bank under Order 7 Rule 11, CPC objection was raised to the maintainability of the defendants application for setting aside the decree. The plaintiff contended that since accumulation of interest has resulted in recoverable amount being more than rupees ten lakh, proceedings has been initiated by applying to the Debt Recovery Tribunal, Jaipur and under Section 18 of the Recovery of Debt Due to Banks and Financial Institutions Act the jurisdiction of the civil Court is barred and as such defendants application under Order 9 Rule 13, CPC is not maintainable. The Bank also contended that under Section 31 of the said Act all pending proceedings on the date of commencement of the Act were required to be transferred to the Tribunal and, therefore, the jurisdiction of the civil Court is completely barred. The plaintiff contended that though the suit was for recovery of Rs. 8,90,096/-but, after decree having been passed in favour of the plaintiff Bank, with accumulation of interest the amount to be recovered has risen to Rs. 15,95,339.55 ps. where for proceedings under the aforesaid Act is pending with the Triubnal. The plaintiff contended that though the suit was for recovery of Rs. 8,90,096/-but, after decree having been passed in favour of the plaintiff Bank, with accumulation of interest the amount to be recovered has risen to Rs. 15,95,339.55 ps. where for proceedings under the aforesaid Act is pending with the Triubnal. The trial Court, however, following the principle laid down in Allahabad Bank vs. Ghanshyam Das Damani, AIR 1998 Calcutta 243 rejected the plaintiff s application under Order 7 Rule 11, CPC holding that application for setting aside ex parte decree can be presented only before the Court passing the decree. 5. It is contended by learned Counsel for the petitioner that under Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 the jurisdiction of the civil Court has been completely barred and the Act specifically provides that from the appointed day no Court or authority shall be entitled to exercise any jurisdiction in relation to the Recovery of Debts Due to Banks and Financial Institutions. He contended that the effect of the statute is that no civil Court can entertain any application which relates to recovery of a debt of Rs. 10,00,000/-or more. Counsel for the petitioner urged that under the decree the decretal amount had to be calculated with interest and, therefore, after the amount became higher than rupees ten lakh owing to accumulation of interest the jurisdiction of the civil Court was barred for entertainment of any matter relating to the decretal recovery. 6. Learned Counsel for the petitioner next contended that the trial Court fell in gross error in abiding by the presumption that the suit was for recovery of an amount less than Rs. 10,00,000/-and, therefore, even if the recoverable amount under the decree rose higher than ten lakh rupees, the nature of the proceedings would not turn upon that factor. He contended that the Court decreed the suit for recovery of the principal amount alongwith interest at the rate of 17.10 per cent and, therefore, the trial Court committed illegality in arriving at the conclusion that the recovery amount rising to the tune of more than ten lakh rupees would not come in the way of trial Court exercising the jurisdiction. He has, therefore, argued that the trial Court committed grave illegality in the exercise of jurisdiction in rejecting the plaintiff s application under Order 7 Rule 11, CPC. 7. In support of his contentions, learned Counsel for the petitioner has relied upon Full Bench decision of the Kerala High Court in C.J. Glenny vs. Catholic Syrian Bank Ltd., reported in AIR 2003 Kerala 373. He has also drawn attention of the Court to decision of the Patna High Court in the case of Ram Laxman Glass (P) Ltd. vs. State of Bihar, AIR 2000 Patna 210 and Risk Capital & Technology Finance Corporation Ltd. vs. Harnath Singh Bapna & Ors., AIR 1997 Delhi 239. 8. As against the contentions advanced by learned Counsel for the petitioner, it is submitted on behalf of the respondents by learned Counsel Shri Sajjan Singh that the contentions raised on behalf of the petitioner bank are fallacious inasmuch as the basic ingredient for such transfer of proceedings to the Tribunal is absent in the present case and, therefore, invocation of the bar under Section 18 of the Act of 1993 is not called for. He supported the order of the trial Court contending that a decree for the recovery of the suit amount cannot be expressed in terms of accumulated amount rising to above ten lakh rupees by accrual of interest. He contended that the revision petition is devoid of any force and order of the Court below does not warrant interference by this Court in exercise of revisional jurisdiction. .9. The Act 51 of 1993, Recovery of Debts Due to Banks and Financial Institutions Act, envisages that 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. This clearly implies that any suit or other proceedings pending in any Court before the establishment of the Tribunal under the Act in relation to the matter which fall within the jurisdiction of the Tribunal by the sheer force of the Statute automatically stand transferred to the Tribunal on the appointed date. 10. This clearly implies that any suit or other proceedings pending in any Court before the establishment of the Tribunal under the Act in relation to the matter which fall within the jurisdiction of the Tribunal by the sheer force of the Statute automatically stand transferred to the Tribunal on the appointed date. 10. Section 31 of the Act of 1993 opens with the words “every suit or other proceeding pending” which is statutory expression unfolding the purpose of the enactment and cannot be shorn off by interpretation to constrict its construction. Thus, the expression proceeding used in this section may better be understandable by reading Section 24(1)(b) of the Code of Civil Procedure whereby it would be something going on in a Court in relation to the adjudication of a dispute other than a suit or an appeal. With the purpose of the enactment in sight, the word proceeding used in Section 31 of the Act has to be given wide and comprehensive meaning and, therefore, it would embrace in its sweep any matter for adjudication including interlocutory proceedings and proceedings which may follow the passing of a decree. 11. It is not disputed before this Court that the decree in suit has been passed for recovery of money which is not merely the principal amount but embraces the interest accrued thereon at the agreed rate of 17.10 per cent. Therefore, the plaintiff s suit has not only been decreed for the principal amount only which is below ten lakh rupees but includes the interest thereon as well and as such the satisfaction of the decree is not full and complete by recovery of the principal amount only. When a decretal onus is discharged only in part by recovery of the principal amount and the decree does not attain satisfaction it cannot be said in terms of law that the suit decreed rests satisfied. In the Judgment passed in the suit after adjudication of the issues involved in the suit there is specific order with regard to payment of interest on the principal amount and, therefore, the interest attached thereto forms part of the decree. Interest on money is directly corelated with time factor and when the Court orders payment of interest in a decree the time factor automatically gets embraced in the decree. Interest on money is directly corelated with time factor and when the Court orders payment of interest in a decree the time factor automatically gets embraced in the decree. Therefore, had the respondents chosen to take up any proceedings while the amount of decree was within ten lakh rupees it would not occasion transferring the proceedings to the Tribunal but no sooner the decretal amount goes up with the passage of time on calculation of interest accrued with the principal aggregating to more than ten lakh rupees the jurisdiction of the civil Court shall be ousted under Section 18 of the Act of 1993. 12. In view of the aforesaid discussion, I am of the opinion that Section 31 of the Act would be attracted and the application under Order 9 Rule 13, CPC will have to be considered by the Debt Recovery Tribunal and not by the civil Court. Having arrived at the conclusion, this revision petition deserves to be partly allowed inasmuch as it may be observed here that petitioners application under Order 7 Rule 11, CPC is not maintainable because the procedure for return of plaint is not attracted but the Court under Section 151, CPC can still exercise power. 10.13. Accordingly, the revision petition is partly allowed. Though petitioners application under Order 7 Rule 11, CPC is held to be not maintainable but the same is also moved under Section 151, CPC and, therefore, the same is ordered to be allowed and, in the light of the specific provisions of Section 31 of the Act of 1993 the impugned order dated 09.08.2004 is set aside and the learned trial Court is directed to transmit the record of the suit as also the application of the defendant moved under Order 9 Rule 13, CPC to the Debt Recovery Tribunal for adjudication in accordance with law. 14. There shall, however, be no order as to costs.