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1997 Supreme(Raj) 10
High Court Of Rajasthan
Judgename : Shiv Kumar Sharma
Ballabh Dass - Appellant
Versus
S.B.B.J. - Respondent
Civil Revision Nos. 669 and 670 of 1995
Decided On : 01/03/1997
a. P .N. Agarwal, for the Appellant
b. S. Kasliwal and Mukesh Kumar, for the Respondents
A counterclaim and a suit claim ought to be regarded as a unified proceeding and that a counterclaim can only be excluded if the plaintiff makes an independent application for the purpose and if the court finds that the counterclaim is embarrassing, unfair to the plaintiff, or likely to create complications and prolong the trial.
Headnote:
ORDER 8 RULE 6C CPC - COUNTER CLAIM - EXCLUSION - CONDITIONS - OBJECTIONS - TIMING - TRANSFER OF SUIT TO DEBT RECOVERY TRIBUNAL - JURISDICTION - DEBT - DEFINITION - FACTUAL DETERMINATION - PREJUDGMENT - IRREGULARITY IN EXERCISE OF JURISDICTION.
Fact of the Case:
Plaintiff filed two suits for recovery of money against the defendants. The defendants filed written statements and counterclaims in one suit. The plaintiff applied for transfer of both suits to the Debt Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The trial court allowed the application and transferred the suits, but separated the counterclaim from one suit and ordered it to be tried separately.
Finding of the Court:
The court held that the trial court erred in separating the counterclaim from the suit and transferring the suit to the Debt Recovery Tribunal. The court held that a counterclaim and a suit claim ought to be regarded as a unified proceeding and that a counterclaim can only be excluded if the plaintiff makes an independent application for the purpose and if the court finds that the counterclaim is embarrassing, unfair to the plaintiff, or likely to create complications and prolong the trial. The court also held that the trial court erred in holding that the amount involved in the suits was legally recoverable without recording evidence and that the question of whether the amount fell within the definition of 'debt' under the Act was a question of fact that could only be determined after recording evidence.
Issues: 1. Whether the trial court erred in separating the counterclaim from the suit and transferring the suit to the Debt Recovery Tribunal. 2. Whether the trial court erred in holding that the amount involved in the suits was legally recoverable without recording evidence. 3. Whether the question of whether the amount fell within the definition of 'debt' under the Act was a question of fact that could only be determined after recording evidence.
Ratio Decidendi: 1. A counterclaim and a suit claim ought to be regarded as a unified proceeding and that a counterclaim can only be excluded if the plaintiff makes an independent application for the purpose and if the court finds that the counterclaim is embarrassing, unfair to the plaintiff, or likely to create complications and prolong the trial. 2. The question of whether the amount involved in the suits was legally recoverable was a question of fact that could only be determined after recording evidence. 3. The question of whether the amount fell within the definition of 'debt' under the Act was a question of fact that could only be determined after recording evidence.
Final Decision: The court allowed both revisions and set aside the impugned orders. The trial court was directed to adjudicate the civil suits as expeditiously as possible.
Shiv Kumar Sharma, J.-As identical legal question arises in both these revision petitions, they are being disposed of by a common order.
2. Rule 6-C of Order 8 of the Code of Civil Procedure emphasises by implication that on a general rule a suit claim and a counter claim ought properly to be regarded as constituting a unified proceeding. If the plaintiff wants the counter claim to be excluded he must make an independent application for the purpose. A counter claim can be excluded, under this rule, where the Court finds that it is embarrassing, or the filing of the counter claim is not fair to the plaintiff or where it is likely to create complications and prolong the trial. The objections to the filing of the counter claim under Rule 6-C must be raised in the reply or written statement to the counter claim by the plaintiff If no such reply or written statement is filed and the counter claim is set down for issues or trial, the plaintiff cannot then make the application for striking off the counter claim.
3. In the light of above settled legal position I proceed to examine the points raised in these revisions.
4. The facts that lie in short compass are that the plaintiff non-petitioner No. 1 (for short plaintiff instituted two civil suits in the trial Court. Civil Suit No. 152 of 1988 was against Ballabh Das & Company & Ors.s for the recovery of Rs. 56,36,200/-and civil suit No. 69 of 1989 was against Ballabh Das & Ors.s for the recovery of Rs. 75,46,921/-. The defendant-petitioners filed the written statements and contested the claim. The petitioners’ main defence is that they obtained financial facilities from the plaintiff for promoting their export Jewellery business in order to earn the precious foreign exchange for the country with a view to ensure and indemnify the plaintiff from suffering any loss, the petitioners got an insurance policy from the External Credit Guarantee Corporation. A Govt. department under the Finance Ministry of the Govt. of India of which the principal object is to provide the facilities for the exporters particularly the precious jewellery with a view to earn more foreign exchange to the country.
5. In Civil Suit No. 152 of 1988, the defendants-petitioners, along with their written statements, also submitted counter claims under Order 8 Rule 6A of the Code of Civil Procedure. However, no such counter claim was instituted in civil suit No. 69 of 1989.
6. Asper defence pleaded by the defendant petitioners, all the titled documents relating to the export of precious jewellery, which were all the negotiable instruments, were handed over to the plaintiff for the purpose of making collection of money for the export of the jewellery which was of much more value than the value of the advance allegedly made by the plaintiff .
7. Thetrial Court framed issues arising from the pleadings of the parties and proceeded to examine the witnesses. In suit No. 152/88 statement of P.W. 1 Dharam Narain was recorded whereas in suit No. 69/89 Babu Lal Bewal was examined as PW. 1.
8. On 20-9-1994 the plaintiff filed application in both the suits, stating that Govt. of India by way of Notification dated 30-8-1994 published in the Gazette of Govt. of India under THE RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993 (ACT NO. 51 OF 1993) (for short the Act) has established a DEBT RECOVERY TRIBUNAL at Jaipur and in pursuance of the provisions contained in Section 18 of the Act, the jurisdiction to entertain the suit for recovery for an amount more than Rs. 10,00,000 of any civil Court is ousted and as such both the suits stand transferred to the said tribunal.
9. The defendant-petitioners in addition to file objections against the said application, submitted independent petition under Section 113 read with Order 46 Rule 1 and 4A of the Code of Civil Procedure formulating four substantial questions of law and requested the trial Court to refer the said questions to this Court.
10. The trial Court vid
