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1988 Supreme(Pat) 229
PATNA HIGH COURT
S.C.Mookherji, J.
Bharat Coking Coal Limited
Versus
United Commercial Bank
Appeal from Original Decree No. . of 1989 ;
Decided On : MAY 13, 1988
The jurisdiction of the civil court is barred by necessary implication when a statute creates a new right and provides a special and particular remedy for enforcing it.
Headnote:
COKING COAL MINES (NATIONALISATION) ACT, 1972 - JURISDICTION OF CIVIL COURT - BARRED BY NECESSARY IMPLICATION - CLAIM BEFORE COMMISSIONER OF PAYMENTS - RES JUDICATA - LIABILITY OF OWNER PRIOR TO APPOINTED DAY - NOT ENFORCEABLE AGAINST CENTRAL GOVERNMENT OR GOVERNMENT COMPANY.
Fact of the Case:
Plaintiff filed a suit against defendant for recovery of Rs. 12,561.39 paise, being the amount of a dishonoured cheque drawn by defendant on plaintiff's bank account. Defendant challenged the jurisdiction of the civil court, contending that the plaintiff had already filed a claim petition before the Commissioner of Payments constituted under the Coking Coal Mines (Nationalisation) Act, 1972 (Nationalisation Act). The trial court decreed the suit in favor of the plaintiff.
Finding of the Court:
The High Court allowed the appeal filed by the defendant and set aside the judgment and decree of the trial court. The court held that the jurisdiction of the civil court was barred by necessary implication in view of the provisions of the Nationalisation Act, which provided a complete machinery for the adjudication of claims arising out of the nationalisation of coking coal mines. The court also held that the plaintiff's suit was barred by res judicata, as the plaintiff had already obtained an admission of its claim before the Commissioner of Payments. Further, the court held that the liability of the defendant, which arose prior to the appointed day under the Nationalisation Act, could not be enforced against the Central Government or a Government Company.
Issues: (i) Whether in view of the provisions of the Nationalisation Act, jurisdiction of the Civil Court is barred by necessary implication? (ii) Whether in view of the older passed by the Commissioner of payment, the respondent is entitled to any decree or not? (iii) Whether in view of S.9 of the Nationalisation Act the respondent is entitled to any relief?
Ratio Decidendi: 1. The Nationalisation Act created a complete machinery for the adjudication of claims arising out of the nationalisation of coking coal mines, including the appointment of a Commissioner of Payments to disburse the amount awarded to each colliery owner. 2. The jurisdiction of the civil court was barred by necessary implication in view of the provisions of the Nationalisation Act, which provided a special and particular remedy for enforcing the rights created by the Act. 3. The plaintiff's suit was barred by res judicata, as the plaintiff had already obtained an admission of its claim before the Commissioner of Payments. 4. The liability of the defendant, which arose prior to the appointed day under the Nationalisation Act, could not be enforced against the Central Government or a Government Company.
Final Decision: The appeal was allowed with costs, and the judgment and decree of the trial court were set aside.
1. This appeal is directed against the judgment and decree passed by Sri D.D. Topno, Additional Subordinate Judge, 1st Court, Dhanbad in Money Suit No. 269/2 of 1974/78 on the 8th of Sept., 1979, whereby and whereunder the Court below decreed the plaintiffs suit.
2. In view of the points involved in this appeal, it is not necessary to state the facts in detail which are also otherwise not much in dispute. Suffice it to say that the plaintiff filed the aforementioned suit stating therein that defendant No. 1 respondent No. 2 had a current account with the plaintiff and used to enjoy over-draft facility in the account. During the operation of the said account on various occasions it appears that defendant No. 1 drew advances against the cheques deposited in course of collection. On or about 16-101971 defendant No. 1 deposited cheque No. 043455 dated 16-10-1971 for a sum of Rs. 15,000.00 drawn by M/s. H. Roy and Co. in favour of defendant No. 1 for collection and defendant No. 1 drew Rs. 15,000.00 by cheque No. 327298 dated 16-10-1971 as advance against the aforesaid cheque sent for collection. On or about 19-10-1971 when the said cheque was presented by the plaintiff to Bank of Baroda, Dhanbad for payment, the same was dishonoured on the ground stated in the memo. In the said account of defendant No. 1, it is alleged that a sum of Rs. 16,899.73 paise remained overdrawn as on 19-10-1971. Defendant No. 1 deposited Rs. 7,000.00 on 2310-1971. The colliery of defendant No. 1 vested absolutely in the Central Government with effect from 1-5-1972. The plaintiff sent the dishonoured cheque to the Custodian General of the management for reimbursement of the amount but to no effect. After giving credit to defendant No. 1, still a sum of Rs. 12,561.39 paise inclusive interest remained due and payable by the defendant to the plaintiff for which sum, the plaintiff filed the aforesaid suit.
3. Defendant No. 1 filed written statement, inter alia, challenging the jurisdiction of civil Court to try the suit. It is alleged that the plaintiff had been pursuing twofold remedies as it had also filed a claim petition before the Commissioner of Payments constituted under the provisions of the Coking Coal Mines (Nationalisation) Act, 1972 (hereinafter to be called as "the Nationalisation Act"). Defendant No. 1 had further stated that the cheque which was dishonoured had not been sent to defendant No. 1 and had it been so sent, defendant No. 1 could have realised the said amount from the party. Defendant No. 2 had also filed a separate written statement and the short point which was stated therein was that it was not liable to pay any amount to the defendant as the transaction in question only took place prior to the appointed date within the meaning of the Act, i.e. 1-5-1972.
4. The court below by the impugned judgment passed a decree for a sum of Rs. 12,561.39 paise and directed that the said sum would carry interest pendente lite and future at the rate of 9% per annum.
5. In this appeal three important questions have been raised for consideration, which are as follows :
(i) Whether in view of the provisions of the Nationalisation Act, jurisdiction of the Civil Court is barred by necessary implication?
(ii) Whether in view of the older passed by the Commissioner of payment, the respondent is entitled to any decree or not?
(iii) Whether in view of S.9 of the Nationalisation Act the respondent is entitled to any relief?
6. Mr. B.K. Dey, learned counsel appearing on behalf of the respondent, has placed strong reliance upon the decisions in J. A. Trivedi Brothers V/s. Union of India, 1975 MPLJ 335 : (1975 Lab IC 629), 1988 BLT (Rep) 181, Gupteshwar Prasad Singh V/s. Allahabad Bank and also filed a xerox copy of the judgment of a Division Bench of the Calcutta High Court in Barakar Coal Co. Limited V/s. N. C. Mehta, (AIR 1977 NOC 198). To me, it appears that the ratio of the aforementioned judgments are open to questions, as many, facets of the prov
