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High Court Of Calcutta
Amitava Lala
UCO BANK - Appellant
Versus
HARA PARBATI COLD STORAGE PVT.LTD. - Respondent
G. A. 465 Of 1998
Decided On : 06/24/1999
DEBTS RECOVERY TRIBUNAL - JURISDICTION - TRANSFER OF SUITS - ORIGINAL SIDE OF CHARTERED HIGH COURTS - APPLICABILITY OF ORIGINAL SIDE RULES - RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993.
Fact of the Case:
The instant case involved a challenge to the transfer of a suit from the Original Side of Calcutta High Court to the Debts Recovery Tribunal (DRT) under the Recovery of Debts due to Banks and Financial Institutions Act, 1993. The transfer was made by the Registrar of the Original Side of the High Court without specific judicial scrutiny. The petitioners, defendants in the suit, contended that the DRT lacked jurisdiction to entertain and try the suit and that the transfer was a nullity.
Finding of the Court:
The Court held that the DRT had no jurisdiction to entertain, try, and determine suits and proceedings to be heard by the Original Side of Chartered High Courts, including the High Court at Calcutta. The Court also held that the transfer of suits and proceedings from the Original Side of Chartered High Courts without specific judicial scrutiny was a nullity. Additionally, the Court held that the Recovery of Debts due to Banks and Financial Institutions Act, 1993 had no retrospective effect in respect of any suit and proceedings instituted prior to the Act coming into force, even before the subordinate courts.
Issues: 1. Whether the DRT had jurisdiction to entertain, try, and determine suits and proceedings to be heard by the Original Side of Chartered High Courts? 2. Whether the transfer of suits and proceedings from the Original Side of Chartered High Courts without specific judicial scrutiny was a nullity? 3. Whether the Recovery of Debts due to Banks and Financial Institutions Act, 1993 had retrospective effect in respect of any suit and proceedings instituted prior to the Act coming into force?
Ratio Decidendi: 1. The Court held that the DRT lacked jurisdiction to entertain, try, and determine suits and proceedings to be heard by the Original Side of Chartered High Courts because the Act establishing the DRT, the Recovery of Debts due to Banks and Financial Institutions Act, 1993, did not confer jurisdiction on the DRT over such suits and proceedings. The Court also noted that the Act did not amend or repeal the Original Side Rules of the Chartered High Courts, which govern the procedure and practice of the Original Side. 2. The Court held that the transfer of suits and proceedings from the Original Side of Chartered High Courts without specific judicial scrutiny was a nullity because it was done without the authority of the Court. The Court noted that the Registrar of the Original Side did not have the power to transfer suits and proceedings without the Court's approval and that the Chief Justice or any other Judge did not formally approve the transfer. 3. The Court held that the Recovery of Debts due to Banks and Financial Institutions Act, 1993 did not have retrospective effect in respect of any suit and proceedings instituted prior to the Act coming into force because the Act did not contain any provision making it retrospective.
Final Decision: The Court allowed the petitioners' application and directed that the suit be re-transferred to the Original Side jurisdiction of the Calcutta High Court. The Court also stayed all proceedings in the DRT in respect of the suit until the re-transfer was effected.
( 1 ) THE Court: This application is made by the defendant Nos. 10,13 and 17 praying, inter alia, a) Delay, if any, in making this application be condoned; b) Order of the learned Registrar transferring the records of Extraordinary Suit No. 24 of 1987 to the Debts Recovery Tribunal, West Bengal and Andaman and Nicobar Island be presently stayed, set aside and/or recalled; c) The Registrar, Original Side of this Hon'ble Court be directed to produce the order transferring the Extraordinary Suit No. 24 of 1987 from this Hon'ble Court to the Debts Recovery Tribunal, Salt Lake , Calcutta; d) The Registrar, Original Side of this Hon'ble Court be directed to intimate the Debts Recovery Tribunal, Calcutta for return of the records of Extraordinary Suit No. 24 of 1987 renumbered as T. A No. 109 of 1995 to this Hon'ble Court; e) Pending disposal of this application proceeding in T. A. No. 109 of 1995 now pending in the Debts Recovery Tribunal, Calcutta do remain stayed; f) Leave be given to make this application in the present form; g) Ad-interim orders in terms of the above prayers; h) Cost of and incidental to this application be cost in the cause; i) Such further and /or other order be passed and direction and/or directions be given as to this Hon'ble Court may deem fit and proper.
( 2 ) CONTESTING parties have filed their respective affidavits.
( 3 ) ORIGINALLY the plaintiff bank instituted a suit in the Court of First Assistant District Judge, Chinsurah, and Hooghly, which was registered as Title Suit No. 59 of 1984.
( 4 ) NATURE of such suit was usual bank suit praying various monetary reliefs and also praying mortgage decree as follows: " a) Declaration that the goods, properties and assets mentioned in Annexure 'b','h', 'j' and 'o' stand hypothecated and/or charged in favour of the plaintiff for due repayment of the plaintiff's claim in Term Loan Account No. 1, Term Loan Account No. II, Rentier Loan Account and Cash Credit Account; b) Decree for sale of the goods, assets and properties mentioned in annexure', 'h','j' and 'o' and payment of the sale proceeds thereof the plaintiff in protonate satisfaction of the plaintiff's claim; c) A decree under Order 34, Rule 4 of the Code of Civil Procedure in form No. 5 to Appendix 'd' of the First Schedule of the Civil Procedure Code in respect of the properties mentioned in the schedule to the plaint. "
( 5 ) SUBSEQUENTLY such suit was transferred to this Hon'ble Court in its Original Side by an order under Clause 13 of the Letters Patent at the instance of plaintiff/respondent bank itself and renumbered as Extraordinary Suit No. 24 of 1987. Clause 13 of the Letters Patent speaks as follows:"clause 13: extraordinary Original Civil Jurisdiction. And we do further ordain, that the said High Court of Judicature at Fort William in Bengal shall have power to remove, and to try and determine, as a Court of Extraordinary Original Jurisdiction, any suit being of falling. Within the jurisdiction of any Court, whether within or without the Bengal Division of the Presidency of Fort William, subject to its superintendence, when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court.
( 6 ) THIS is an extraordinary power of the Original Civil Jurisdiction. High Court can apply such power of superintendence in respect of the matters lying in any Lower Courts for the purpose of justice on the basis of the circumstances of each case and the balance of convenience having regard to those circumstances is one of the matters for consideration. The grounds for transfer mainly are as follows:"a) Wherein the Lower Court has dealt with harshly and without discretion and that decision turns mainly on points of law;b) That difficult point of English law arise and generally where it appears to be a case that should not be tried in the moff
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