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2018 DIGILAW 3 (MEG)

Manish Bhattacharjee v. State Bank of India

2018-02-22

S.R.SEN, TARUN AGARWALA

body2018
ORDER : Tarun Agarwala, J. We have heard Shri S. Chakrawarty, learned senior counsel assisted by Ms. M. Mahanta, learned counsel for the appellant and Shri K Khan, learned counsel for the opposite parties. 2. The present intra-court appeal has been filed under the Rules of the High Court against the judgment dated 08.03.2013 passed by the Shillong Bench of the Gauhati High Court by which the petition of the writ petitioner questioning his termination order was dismissed. 3. An intra-court appeal is required to be filed within thirty days under the Rules of the Court. The Stamp Reporter made a note that there was a delay of 1108 days in filing the appeal. In addition to the aforesaid, an objection was also raised with regard to the maintainability of the appeal in the light of Section 28-I of the North-Eastern Areas (Reorganisation) and Other Related Laws (Amendment) Act 2012 (hereinafter referred to as the Act of 2012) by which an intra-court appeal can only be filed in the common High Court, namely, Gauhati High Court. 4. In so far as the delay is concerned, an explanation has been given in paragraph 2 of the affidavit accompanying the application filed under Section 5 of the Limitation Act. The appellant contended that he was unable to file the writ appeal due to his extreme impoverishment as he had lost his job and was unable to engage any counsel. In our opinion, this bald statement without being supported by any evidence cannot be accepted on its face value. The law is very clear that an appeal is required to be filed within thirty days. The Court has not been made aware as to when the petitioner lost his job, how he was under extreme impoverishment and nothing has been indicated as to why he has not been able to engage a counsel. If the appellant cannot engage a counsel, he could have sought a legal aid counsel which is readily available. In any case, the Court is of the opinion that the appellant has not shown any sufficient cause for condoning the extraordinary delay in filing the present appeal. 5. If the appellant cannot engage a counsel, he could have sought a legal aid counsel which is readily available. In any case, the Court is of the opinion that the appellant has not shown any sufficient cause for condoning the extraordinary delay in filing the present appeal. 5. On the question as to whether the appeal could have been filed before the Meghalaya High Court against the order passed by the learned Single Judge of the Gauhati High Court, we find that the Act of 2012 categorically contemplates as to how and where an appeal could be filed. A specific provision, namely, Section 28-I has been given and for reference, the same is extracted hereunder: "28-I. Transfer of proceedings from common High Court to the High Courts of Meghalaya, Manipur and Tripura.-(1) Except as hereinafter provided, the common High Court shall, as from the commencement of the North-Eastern Areas (Reorganisation) and Other Related Laws (Amendment) Act, 2012, have no jurisdiction in respect of the State of Meghalaya, Manipur and Tripura. (2) Such proceedings pending in the common High Court immediately before the commencement of the North-Eastern Areas (Reorganisation) and Other Related Laws (Amendment) Act, 2012 as are certified, whether before or after that day, by the Chief Justice of that High Court, having regard to the place of accrual of the cause of action and other circumstances to be proceedings which ought to be heard and decided by the High Court of Meghalaya or the High Court of Manipur or the High Court of Tripura, as the case may be, shall, as soon as may be after such certification, be transferred to the High Court of Meghalaya or the High Court of Manipur or the High Court of Tripura, as the case may be. (3) Notwithstanding anything contained in sub-section (1) and (2) or in section 28A, but save as hereinafter provided, the common high Court shall have, and the High Court of Meghalaya, the High Court of Manipur and the High Court of Tripura shall not have, jurisdiction to entertain, hear or dispose of appeals, application for leave to the Supreme Court, application for review and other proceedings where any such proceedings seek any relief in respect of any order passed by the common High Court before the commencement of the North-Eastern Areas (Reorganisation) and Other Related Laws (Amendment) Act, 2012: Provided that if after any such proceedings have been entertained by the common High Court, it appears to the Chief Justice of that High Court that they ought to be transferred to the high Court of Meghalaya or the High Court of Manipur or the High Court of Tripura, he shall order that they shall be so transferred, and such proceedings shall thereupon be transferred accordingly. (4)Any order made by the common High Court- (a) before the commencement of the North-Eastern Areas (Reorganisation) and Other Related Laws (Amendment) Act, 2012, in any proceedings transferred to the High Court of Meghalaya, or the High Court of Manipur or the High Court of Tripura by virtue of sub-section (2); or (b) in any proceeding with respect to which the common High Court retains jurisdiction by virtue of sub-section (3). shall, for all purposes, have effect, not only as an order of the common High Court but also as an order made by the High Court of Meghalaya, or the High Court of Manipur or the High Court of Tripura, as the case may be." 6. A perusal of the aforesaid provision clearly indicates that after the commencement of the Act of 2012, the common High Court, namely, Gauhati High Court will have no jurisdiction in respect of matters where cause of action arises in the State of Meghalaya, Manipur or Tripura. We are concerned with matters arising in the State of Meghalaya. A perusal of the aforesaid provision clearly indicates that after the commencement of the Act of 2012, the common High Court, namely, Gauhati High Court will have no jurisdiction in respect of matters where cause of action arises in the State of Meghalaya, Manipur or Tripura. We are concerned with matters arising in the State of Meghalaya. Section 28-I (2) of the Act indicates that matters, which are pending in the common High Court, namely, Gauhati High Court but the cause of action, if any, arises in the State of Meghalaya, in which case, the Chief Justice of the common High Court considering the cause of action and other circumstances may transfer the said case to the High Court of Meghalaya. Section 28-I (3) stipulates that no intra-court appeal, application for review or application for leave to appeal to the Supreme Court against an order passed by the common High Court, namely, Gauhati High Court would lie before the Meghalaya High Court. 7. In the light of the aforesaid, it is clear that there is a specific provision prohibiting intra-court appeal to be filed in the State of Meghalaya and clearly permitting an intra-court appeal to be filed in the common High Court. Learned senior counsel submitted that the said provision is directory in nature and is not mandatory. In support of his submissions, learned senior counsel placed reliance upon the decision of Supreme Court in Civil Appeal No. 8400 of 2017 in the case of M/S. Surendra Trading Company v. M/S. Juggilal Kamlapat Jute Mills Company Limited and Others decided on 19th September, 2017, wherein, the Court considered the provisions in the Insolvency & Bankruptcy Code 2016. The Court came to the conclusion that the period for permitting and rejecting the application for initiation of insolvency resolution process was not mandatory and that the tribunal was not confined to decide the matter within the stipulated period of 14 days. Learned senior counsel relying upon the said decision further contended that the provision was only procedural in nature even though the word "shall" was used, nevertheless, the same has to be read as directory in nature rather than holding it to be mandatory. Learned senior counsel further placed reliance upon the decision of the Supreme Court in the case of Ramchandra Keshav Adke (Dead) by LRs and Others. Learned senior counsel further placed reliance upon the decision of the Supreme Court in the case of Ramchandra Keshav Adke (Dead) by LRs and Others. v. Govind Joti Chavare and Others: (1975) 1 SCC 559 , wherein, the Supreme Court distinguished the provisions between mandatory and directory holding that it is the duty of courts of justice to try to get the real intention of the Legislature in analysing as to whether the provision is directory or mandatory. The Supreme Court held as under: "14. Thus, the first point to be considered is, whether the requirements of these provisions are mandatory or directory. "No universal rule", said Lord Compel, "can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope". Such intention of the Legislature is therefore to be ascertained upon a review of the language, subject-matter and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act." 8. Having heard the learned senior counsel on this aspect, we are of the view that the submissions made by the counsel cannot be accepted. The decisions cited are clearly distinguishable and are not applicable. In the first instance, the court finds that the provision of Section 28-I(3) confines the territorial jurisdiction for filing an intra-court appeal or an application for leave to the Supreme Court or an application for review before the common High Court only. Sub Section (3) of Section 28-I makes it apparently clear that the provision is mandatory giving no choice to the litigant to choose between the two forums. The applicability and the fairness of this provision can be seen from another angle. An order which is passed by the Gauhati High Court, if it is reviewed by the Meghalaya High Court in an appeal or on a review application or on an application seeking leave to appeal would create anomalous situation. One High Court which has dealt with one matter should conclude the matter and bring finality to it and should not leave it open to another High Court to dwell further into the matter. One High Court which has dealt with one matter should conclude the matter and bring finality to it and should not leave it open to another High Court to dwell further into the matter. The Legislature was conscious of the matter and in order to avoid the anomalous situation, a mandatory provision was created confining that petition, which was decided by the common High Court to achieve finality from that Court itself. Thus, the decision of the common High Court cannot be criticised or overruled or set aside before the appellate forum by another High Court. The word "shall" was consciously used making it apparent and explicit that a litigant who has availed the jurisdiction of the Gauhati High Court can only file an intra-court appeal before the same High Court and cannot be given a choice to choose the common High Court, namely, Gauhati High Court or Meghalaya High Court. 9. We are thus, of the opinion that the present intra-court appeal could not have been filed before the Meghalaya High Court in view of the explicit mandatory provision contained in Sub-section (3) of Section 28-I of the Act of 2012. 10. In the light of the aforesaid, the appeal fails on both counts and is dismissed.