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2005 Supreme(Ker) 764
Judges : K.K.DENESAN
Indian Bank, Head Office - Appellant
Versus
EKM Dist.Harijan Girijan Motor Transport - Respondent
Case No : OP.No.22861 of 1999 (V)
Decided On : 12/23/2005
Advocates Appeared :
For the Petitioner: S. Easwaran, Advocate. For the Respondents: R2 C.S. Manilal, Advocate, R1, R3 & R4 P.K. Santhamma, Government Pleader.
Headnote:
Debts Due to Banks and Financial Institutions Act 1993 - Sections - 31( 1), 17 and 18 - Whether a suit or other proceeding filed by a bank or financial institution as defined in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the Act) and pending adjudication before the Registrar of Co-operative Societies under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as the Societies Act) would stand automatically transferred to the Recovery Tribunal constituted under the Act - If not, dismissal of the suit by the Registrar instead of returning the same for presentation before the Tribunal, is not improper resulting in miscarriage of justice These are the questions for consideration in this Original Petition filed- Held, S.31 is so conspicuous that supplying the said words in sub-s. (1) of S.31, the proviso to sub-s. (1), sub-s. (2) of S.31 as also clause (a) of the said sub-section would in effect amount to substantial alterations and rewriting the section. It will not fall within the expression 'ironing out the creases.' Such rewriting is the function of the legislature. S.31 when read in isolation does not raise any problem; neither ambiguity nor irrationality. Problems arise only when S.31 is read along with Ss.17 and 18 in the background of the statement of objects and reasons which led to the passing of that enactment. In this view of the matter the contention that S.31 of the Act shall be read by supplying the words 'other authority', after the word 'court' in sub-s. (1) and the proviso to S.31 of the Act cannot be accepted - Courts shall not readily infer casus omissus or supply the omission, for, courts are expected to find out the intention of the legislature by interpreting the language of the statutes. Omissions in a statute, cannot, as a general rule be supplied by construction, is a well accepted rule of interpretation. It is true that this general principle is not without exception. Since the primary purpose of construction is to ascertain the intention of the Legislature, such intention should be given effect, even if it necessitates the supplying of omissions, provided, of course, that this effectuates the legislative intention. There are decisions indicating a trend in this direction as well. Since the primary source of legislative intend is the language of the statute, judicial thinking leans more in favour of the former school of thought . If the plaint is returned for presentation before the forum having jurisdiction, further proceedings before that forum could be initiated from the stage at which the matter stood before the forum which lost the jurisdiction. On the other hand, if the suit is dismissed in the light of S.18 of the Act, the plaintiff/petitioner will have to start everything fresh before the forum vested with the jurisdiction. Such a course of action would create new hurdles such as limitation to approach the Tribunal, payment of court fees and other fees prescribed for entertaining the suit by the Tribunal, etc., for the plaintiff. Plaintiff is made to face such problems for no fault of his. Such problems are the direct result of the provisions of the Act. Hence even in the absence of a statutory provision in the nature of O.VII R. 10, C.P.C. the principle of law coupled with justice and equity embodied in the aforesaid statutory provision has to be stretched to other areas of adjudication and made applicable to situations where the adjudicating authority finds that it has no jurisdiction to entertain a suit or to proceed with one which has already been entertained, but cannot be disposed of on merits for want of jurisdiction as a result of ouster of jurisdiction or other intervening factors like the operation of law - Original petition - disposed.
Whether a suit or other proceeding filed by a bank or financial institution as defined in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the Act) and pending adjudication before the Registrar of Co-operative Societies under Kerala Co-operative Societies Act, 1969 (hereinafter referred to as the Societies Act) would stand automatically transferred to the Recovery Tribunal constituted under the Act? If not, dismissal of the suit by the Registrar, instead of returning the same for presentation before the Tribunal, is not improper resulting in miscarriage of justice? These are the questions for consideration in this Original Petition filed in the backdrop of the following facts.
2. Petitioner is a nationalized bank and respondent No.1 is a co-operative society registered under the Societies Act. According to the petitioner, respondent No.1 borrowed a certain sum of money from the petitioner-bank, respondent No.2 executed agreements of guarantees in favour of the petitioner, agreeing among other, to repay the amount found due from the 1st respondent and an amount of Rs.76,10,357/- became due in the account of the 1st respondent as it stood on 6-6-1996. Since respondents 1 and 2 failed to repay the amount despite notices issued, petitioner filed Arbitration Case No.258 of 1996 on 7-6-1996 before the Joint Registrar of Co-operative Societies, Ernakulam under Section 69 of the Societies Act. Respondent No.3 as per proceedings dated 18-7-1996 directed the 4th respondent-Asst. Registrar of Co-operative Societies (herein after referred to as the Arbitrator) to hear and dispose of ARC No.258 of 1996.
3. The Debts Recovery Tribunal (for short, Tribunal) having jurisdiction to entertain and try the above suit was established with effect from 4-11-1996. Noticing the bar of jurisdiction under the Act, the Arbitrator held that it ceased to have jurisdiction to try and decide the dispute involved in ARC No.258/96 with effect from 4-11-1996 and that the Tribunal is the competent authority to resolve the dispute. Petitioner requested the Arbitrator to transfer the case to the Tribunal or to return the plaint for presentation before the Tribunal. The Arbitrator, however, held that he has no power to transfer the case to the Tribunal under the Act or under the Societies Act. According to the Arbitrator, Section 31 of the act provides for transfer of cases pending before the Courts only and the Arbitrator under Section 69 of the Societies Act being not a court, the only course open to it was to dismiss the case. Accordingly, A.R.C. No.258 of 1996 was dismissed as per Ext.P4 order dated 21-7-1999 with liberty to the petitioner to file a suit before the Tribunal at Chennai. Feeling aggrieved, petitioner filed this O.P. to quash Ext.P4 order to the extent the 4th respondent has dismissed A.R.C. No.258 of 1996 and to direct the 4th respondent to transfer the above arbitration case to the Tribunal under the Act or in the alternative to return the arbitration case to the petitioner for proper presentation before the appropriate forum, within a time to be granted by the 4th respondent.
4. The arbitration case was filed on 7-6-1996 under Section 69 of the Societies Act. The 1st respondent is a co-operative society registered under the Societies Act. Hence, as matters stood then, the Arbitrator under the Societies Act alone had the jurisdiction to adjudicate and resolve the dispute between the petitioner and the first respondent. Section 100 of the Societies Act says that no civil or revenue court shall have jurisdiction in respect of any matter for which provision is made in the said Act. The plaint submitted by the petitioner was taken on file by the Arbitrator as A.R.C. No.258 of 1996 and was posted for hearing on 23-4-1997, 14-5-1997 and 21-6-1997. Thereafter, there was no posting due to the absence of the 1st defendant. Petitioner and the 2nd defendant in the arbitration case were present on the dates of post
