skt/- 1 11.nms.1608.10 s.3601.90.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1608 OF 2010 IN SUIT NO. 3601 OF 1990 Central Bank of India ... Plaintiff Vs. Zenith Polytape Ind. Pvt. Ltd. Ors. ... Defendants ...... Mr.Y.R.Nair for the Plaintiff. Mr.R.R.Mishra for defendant no.3. Mr.Yashodhan Divekar with Mr. Bhagwat i/by Divekar & Co. for defendant nos. 4 & 5. Ms.Akanksha Thakkar i/by Purnanand & Co. for defendant no.7. ...... CORAM : SMT.ROSHAN DALVI, J. DATE : 27th JULY, 2010. P.C. 1 The suit came to be filed in this Court by the plaintiff-Bank for recovery of 1274644.50 under certain loans and facilities extended by the plaintiff-Bank to the defendants and for declaration that the amounts to be re-paid are secured by mortgage and other incidental reliefs. The papers and proceedings in the suit came to be transferred to the Debts Recovery Tribunal ( DRT) under the Recovery of Debts due to the Bank and Financial Institutions Act, 1993 (‘DRT Act’). skt/- 2 11.nms.1608.10 s.3601.90.sxw 2 Before the papers and proceedings came to be transferred, an ex- parte decree came to be passed by this Court, which was then the competent Court of original jurisdiction, against defendant no.1 and 4 to 6. That ex-parte decree also came to be transferred along with the papers and proceedings in the above suit. 3 Consequently, execution of the ex-parte decree passed by this Court, which would proceed, was to proceed before the DRT. Defendant nos.1, 4 & 5 have applied to set aside the decree by the aforesaid Notice of Motion on the premise that as the decree is passed by this Court, it could be only set aside by this Court. 4 Under Section 17(1) of the DRT Act, the jurisdiction, powers and authority to entertain and decide the applications for recovery of debts due to them is with the Tribunal alone, which reads as under : “17. Jurisdiction, powers and authority of Tribunals – (1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts and due to such banks and financial institutions.” 5 Under Section 31(1) of the DRT Act, all suits or other proceedings pending before the Civil Court immediately before the date of establishment of the Tribunal which would fall within the jurisdiction of the DRT, would stand transferred to the Tribunal, except an appeal skt/- 3 11.nms.1608.10 s.3601.90.sxw pending before any Court. 6 Under 31(2)(b) of the DRT Act, when any suit or other proceedings, if so transferred, the Tribunal is required to proceed to deal with the suit or other proceedings, as it deems fit. 7 Consequently, not only the suit but also other proceedings in the suit, which would be pending before this Court, would be transferred to the Tribunal. Any other applications or proceedings which are taken out after such transfer, therefore, have to be taken out before the Tribunal alone, since the Tribunal is the only Court of competent jurisdiction with regard to such suits or proceedings. Along with the suit, the decree which is passed against the some of the defendants in suit, is also required to be and is transferred to the DRT. Consequently, any application which required to be made in respect of that decree, including an application in execution or in the suit, would be required to be made before the DRT alone as the competent Court. Further applications in the suit cannot be made before the Court which transferred the proceedings to the DRT, under Section 31 of the DRT Act. This is one such proceeding. 8 Mr.Divekar on behalf of defendant nos.4 & 5 contended that this application would not fall under Section 22(2) of the DRT Act. He pointed out that under Section 22(2)(g), only the ex-parte order or decree passed by the Tribunal, can be set aside by the Tribunal. skt/- 4 11.nms.1608.10 s.3601.90.sxw 9 Section 22(2) of the DRT Act lays down how and for which applications, the Civil Procedure Code would be applicable and for which proceedings the powers are vested in the Tribunal while trying the suit. Since the Tribunal would have the powers vested in the Civil Court under the C.P.C. for trying the applications enumerated in the said sub-section, it cannot be excluded from exercising the power of trying similar applications, but for ex-parte decrees or orders passed not by it, but by the Court which was the competent Court, prior to the transfer of the proceedings. 10 Only the DRT would have the jurisdiction to determine as per the procedure established under that special law being the DRT Act, the applications made in respect of and upon suits being filed by the Banks and Financial Institutions. Such applications could be made either by the Bank or Financial Institutions or by any other party including the defendants in the suit. 11 Since the Civil Courts jurisdiction is completely barred under Section 18 of the DRT Act, from the appointed date, this Court cannot entertain or decide any application arising in the suit, which is already transferred. The jurisdiction of the Tribunal to pass orders in any applications made before it, are explicit under Section 19(25) of the DRT Act. This Notice of Motion will be an application to be made by the skt/- 5 11.nms.1608.10 s.3601.90.sxw defendants in the suit for such directions as may be necessary or expedient, which the Tribunal may pass upon following the procedure established by law in the ends of justice. 12 The argument of Mr.Divekar that the Tribunal may not be able to set aside a decree passed by the High Court, may not be countenanced in view of the fact that the Tribunal is the Civil Court exercising powers under the CPC as per Section 22(2) of the Act which makes it a Court of civil jurisdiction coordinate with the High Court in its original civil jurisdiction. The Tribunal alone can therefore, pass orders for setting aside the order or refusing to set aside the decree passed in the suit by this Court, once it has jurisdiction as a Civil Court. The Notice of Motion is, therefore, transferred to the DRT for disposal. [SMT.ROSHAN DALVI, J.]