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2011(1) Bankmann 376 (Cal.)
CALCUTTA HIGH COURT
Sanjib Banerjee, J.
Prabir Chatterjee —Defendant
versus
ICICI Bank Limited
& Ors. —Plaintiffs
G.A. No. 2555 of 2010 and C.S. No. 13 of 2008
Decided on 1.10.2010
(ii) Precedent—Per Incuriam Rule—A decision is said to have been given per Incuriam when Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the legal issue, or when it has acted in ignorance of a decision of a superior forum or a Larger Bench of same Court—Any Supreme Court decision is binding on High Court—A Supreme Court decision which does not take into account a previous decision of a co-ordinate or a Larger Bench may be said to be per Incuriam, but when subsequent Supreme Court judgment notices and interprets previous decisions, it cannot be said to have been rendered per Incuriam as it is not in ignorance of previous authorities but upon consideration thereof. (Para 41)
(iii) Recovery of Debt Due to Banks and Financial Institutions Act, 1993—Section 19—A constituent has per force to wait for a Bank or a financial institution to apply under Section 19 before constituent’s right accrues to lodge a counter-claim—If there is no adequate remedy available before a Tribunal to a constituent, civil Court can scarcely shoot away a constituent who has carried an action before it on the ground that subject-matter of action is inextricably linked to claim by a Bank or financial institution launched before Tribunal under 1993 Act—Civil Court has to leave it to the volition of constituent to carry his claim to Tribunal and expose himself to vagaries of 1993 Act. (Paras 49 and 50)
(iv) Administration of Justice—Independence of Judiciary—Functional independence would relate to authority of institution to exercise function for which it is designed—Doctrine of separation of powers, however flexible, would include both institutional separation and functional separation which are not mutually exclusive— But any form of separation of powers would fundamentally incorporate extent of either kind of independence—Core function of judiciary would be to adjudicate—It is fundamental constitutional assumption. (Para 53)
Sanjib Banerjee, J.—The first defendant Bank has applied for a permanent stay of the suit and, in the alternative, for this suit to be transferred to the Debts Recovery Tribunal where the first defendant has instituted recovery proceedings against the plaintiff as the principal debtor and the other defendants as guarantors under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act. 1993. The Bank says that the alleged cause of action of the plaintiff in this suit is so inextricably connected to the Bank’s claim made before the Tribunal that it would be embarrassing if the two actions proceeded in the two Fora. The Bank suggests that in view of the mandatory provisions of the said Act of, 1993 the civil Court must relinquish its authority in favour of the Tribunal in matters relating to claims and counter-claims between Banks and their constituents.
2. Some fundamental issues have arisen, not the least of them being the constitutional issue as to the arisen of the inalienable obligation of the judiciary in the matters relating to adjudication. For, whatever law may be enacted and whatever statute may be cited, if there is a doubt it has to be resolved with the suprema lex in mind and the scheme of state functioning ordained by it. That is, with respect, not to suggest that matters already settled by higher authorities can be revisited at this base level, but the unquestionable primacy of the wing of state in matters concerning the mechanism of adjudication has to be preserved under the constitutional scheme of things.
3. It is with such preface that the present request of this private Bank has to be seen as it asserts that the civil Court must yield to a Tribunal since the principal issue to be adjudicated is as to whether there is a Banker-constituent relationship between the first defendant and the plaintiff and since this suit will necessarily involve the assessment as to whether any debt is due from the plaintiff to the Bank within the meaning of the word “debt” in the said Act of 1993. As in the usual course and notwithstanding the exalted status that the first defendant Bank claims, it is the plaint which has to be subjected to scrutiny. It is the plaint that defines the contours of this action and holds the key in the matter of assessment of the propriety of the unexceptional plea of the applying defendant. This suit was launched against the Bank early in the year 2008 and the plaint therein was amended shortly thereafter to add the other defendants and to include some additional facts and reliefs. The suit was instituted with leave under Order 21rule 2 of the Code of Civil Procedure. Post- amendment the reliefs claimed in the plaint are as follows:
“(a) Declaration that the agreement dated 29th August, 2006 entered into between the plaintiff and the defendant is unenforceable at the instance of the defendant;
(b) Leave for delivery up and cancellation of the agreement dated 29th August, 2006;
(c ) Mandatory injunction directing the defendant forthwith to return to the plaintiff the original Ware House Receipts particulars whereof are set out in Schedule ‘A’ hereto and/or alternatively in the event the agricultural produce in respect whereof the said Ware House Receipts had been issued had already been sold or not available, a decree for Rs: 1,21, 75,000/- approximately being the price of the said agricultural produce;
(cc) Perpetual injunction restraining the defendant No.1, its servants, agents or assigns from trying to encash the two undated blank cheques bearing Nos. 072954 and 072955 both drawn on Punjab and Sind Bank, Chowringhee Branch;
(ccc) Mandatory injunction directing the defendant No.1 not to encash and to return to the plaintiff the two undated blank cheques bearing Nos. 072954 and 072955 both drawn on Punjab and Sind Bank, Chowringhee Branch;
(d) A decree for Rs. 16,32,545/- being the maturity value of the Fixed Deposit Receipt being No.1298719 together with furth
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