A MORTGAGE SUIT FILED BY A BANK IS WITHIN THE PURVIEW OF THE DEBTS RECOVERY TRIBUNAL ACT AND IS LIABLE TO BE TRANSFERRED TO THE TRIBUNAL. HOWEVER, A COUNTER CLAIM FILED BY THE DEFENDANT IS NOT LIABLE TO BE TRANSFERRED ALONG WITH THE SUIT AND WILL BE TRIED BY THE CIVIL COURT.

1. This Civil Revision application is directed against the order dated 1-9-1997 passed by the Subordinate Judge I, Jamtara, Dumka in Title (Mortgage) Suit No. 38 of 1986, whereby and whereunder he has allowed the prayer of the plaintiff-Bank and ordered for transfer of the aforementioned suit to the Debts Recovery Tribunal, Patna and kept in his Court the counter claim of the defendants for trial and disposal.

2. The facts of the case lie in a narrow compass.

3. Plaintiff-Opposite party No. 1-State Bank of India instituted title (Mortgage) Suit No. 38 of 1986 seeking a relief of mortgage decree as contemplated under Order XXXIV, Rule 4 of the Code of Civil Procedure (for short CPC) and also for a money decree for recovery of loan amount. The defendants entered appearance and filed their written statement separately. Defendant-Opposite party No. 2, namely, M/s Raj Hans Steel Limited filed its written statement-cum-counter claim wherein the counter claim was valued at Rs. 2,50,000.00 . The petitioner who is defendant No. 4 also filed his written statement and counter claim which was valued at Rs. 42,51,000.00 . Defendant No. 2, however, died on 1-9-1989 leaving behind his widow, three daughters and one son (the petitioner). The suit was, however, ultimately taken up for hearing and the plaintiff examined some witnesses. In the meantime, the plaintiff filed a petition on 15-3-1997 seeking transfer of the suit to the Debts Recovery Tribunal, Patna, in view of notification issued by the Central Government under the Debts Recovery Act. The defendant filed rejoinder to the said petition. Learned Court below after hearing the parties passed the impugned order and ordered for transfer of the suit to the Debts Recovery Tribunal, Patna and kept the defendants counter claim for trial and disposal by that Court. Hence this Civil revision application.

4. Mr. Dhrub Narain, learned Senior Counsel appearing for the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel firstly submitted that the Court below failed to consider that the plaintiff suit was not simple suit for money decree, but it was a mortgage suit in which decree was claimed under Order XXXIV, Rule 4 of the CPC and as such it is not covered under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Debt Recovery Act). Learned counsel secondly submitted that the Debt Recovery Tribunal has no jurisdiction to decide the issue involved in a mortgage suit. Learned counsel thirdly submitted that the Court below has committed grave error of law in not transferring the counter claim and keeping it in the Court for trial and disposal. According to the learned counsel either the suit could not have been transferred or it would have been transferred along with the counter claim in order to avoid conflicting judgment. Learned counsel relied upon the decisions of the case of Venkateshwara Textiles Trader V/s. Canara Bank, AIR 1998 Andh Pra 282.

5. On the other hand, Mr. S. A. Sanjay, learned counsel appearing on behalf of the opposite party Bank, submitted that after the enforcement of the Act of 1993, the jurisdiction of the Civil Court has been ousted and all pending cases are liable to be transferred to the Tribunal constituted under the said Act. Learned counsel submitted that the Act has not made any distinction between the money suit and mortgage suit rather according to the Act all suits at the instance of the Bank for the recovery of loan are liable to be transferred to the Tribunal. Learned counsel further submitted that so far as the counter claim is concerned, the Court below has rightly held that the same is to be tried by itself because the counter claim could not have been transferred to the Tribunal. Learned counsel relied upon the decision of the case of Cofex Exports Ltd. V/s. Canara Bank, AIR 1997 Delhi 355 (357).

6. Before appreciating the rival contentions of the