;) IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH CIVIL REVISION N0. 7-f @ /2006 APPLICANT /•-" ^' ..Central Bank of India, Central Office ^ Chandermukhi, Nariman Point Mumbai, Branch Offjce at Vivekanand Ashram, G.E. Road, Raipur, Tahsil and District Raipur [Chhattisgarh] NON-APPLICANTS :- 1] VERSUS Kanak Rai Rajpotiya S/o Moti Lal, aged about 50 years, Occupation - Business, R/o Raipur, Calcutta Transport Company, Tatiband, Raipur, Tahsil and District Raipur [C.G.]. M/s Raipur Steel Re-rolling mills, A registered partnership firm, Heerapur, Tatiband, Raipur [C.G.] through - Managing Partner Jashwant Singh Banvet son ofTarsem SinghBanvet- through Saini Steel, behind Manmohan ^ carrier, Tatiband, Raipur [C.G.] CIVIL REVISION UNDER SECTION115 OF CODE OF CIVIL PROCEDURE.1908 'f: '•A.^'":""^""^ ^ ... HIGH COURT OF CHHATTJSGARH AT BILASPUR _ -^e Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Civil Revision No.79 of2006 Central Bank of India versus Kanak Rai Rajpotiya and another ORDER Postfor 22-10-2010 Sd//- Prashant Kumar Mishra Judge HIGH COURT OF CHHATTISGARH AT BILASPUR -v\ Sinale Bench: Hon'ble Shri Justice Pras^hant Kumar Mishra Civil Revision No.79 pf 2006 Applicant Non-ApDlicants versus Central Bank of India Kanak Rai Rajpotiya and another Present: Shri Sanjay K. Agrawal and Shri Sourabh Sharma, counsel for the applicant. Shri S.S.Rajput, counsel for non-applicant No.1 No one appears for non-applicant No.2. Civil Revision under Section 115 of the Code of Civil Procedure, 1908 ORDER (Passed on ^^October, 2010) The challenge in this revision under Section 115 of the Code of Civil Procedure, 1908 (henceforth 'the Code') is to the legality and validity of the order dated 4-3-2006 passed by the Court below in M.J.C. No.13/04 allowing the application preferred by non-applicant No.1 under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree dated 10-12-1996 passed in Civil Suit N0.24-A/90. 2. Facts of the case, in brief, are that the applicant/Bank preferred Civil Suit No.24-A/90 against the non-applicants for recovery of Rs.64,56,227.99 Paisa together with interest at the rate / of18% perannum. ^ )"^ ^ 3. The suit was decreed for Rs.37,58,403.02 Paisa along with interest at the rate of 16.5% with quarterly interest from 10-8-1990 till recovery. The decree was passed ex parte on 10-12-1 996. 4. Non-applicant No.1 moved an application on 9-2-1998 under Order 9 Rule 13 of the Code for setting aside the ex parte judgment and decree dated 10-12-1996. This application was moved on the pleading that he was not aware of the proceedings of the civil suit and the decree has been passed without affording any opportunity of hearing. The applicant/Bank, in its reply before the MJC Court, stated that the application is barred by limitation and that the trial Court has not committed any illegality in proceeding ex parte against non-applicant No.1. 5. The learned Court below has allowed non-applicant No.l's application under Order 9 Rule 13 of the Code and the ex parte decree has been set aside by the impugned order. 6. Shri Sanjay K. Agrawal and Shri Sourabh Sharma, learned counsel for the appticant/Bank would submit that in view of provisions contained in Sections 17, 18 and 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (henceforth 'the Act') and since the Debt Recovery Tribunal was constituted at Jabalpur on 7-4-1998 the application under Order 9 Rule 13 of the Code was not maintainable before the Court below and that the impugned order is thus without jurisdiction. Learned counsel would also submit that the application under Order 9 Rule 1 3 of the Code /"was filed after expiry of 30 days from the date of ex parte judgment ^'> and decree and was barred by limitation, however, the same has been allowed without there being any application under Section 5 of the Limitation Act for condonation of delay in filing the application. They would also submit that non-applicant No.1 had engaged his lawyer, who entered appearance in the suit on 19-8-1992 and prayed for time to file written statement and kept on appearing on several dates, therefore, it cannot besaid that non-applicant No.1 was not aware of the pendency of the suit and thus on merits also the application was wrongly allowed by the Court below. 7. Learned counsel for the appIicant/Bank have placed reliance on the judgments in Bhanu Construction Co. Pvt. Ltd. vs. Andhra Bank, Hyderabad and others, AIR 2001 SC 477, Punjab National Bank, Dasuya vs. Chajju Ram and others, (2000) 6 SCC 655, M/s Ram Laxmah Glass (P) Ltd. and others vs. State of Bihar and Qthers, AIR 2000 Patna 210, Risk Capital & Technology Finance Corporation Ltd. vs. Harnath Singh Bapna and others, AIR 1997 Delhi 239, Union of India and others vs. Mohanlal Likumal Punjabi and others, (2004) 3 SCC 628 and Sunil Poddar and others vs. Union Bank of India, (2008) 2 SCC 326. 8. Percontra, Shri S.S.Rajput, learned counsel for non-applicant No.1 has vehemently argued that in view ofthe language contained in Sections 17, 18 and 31 of the Act, the bar of jurisdiction would apply to an application for recovery of debt filed by the Bank or any other financial jnstitution and not for an application moved by the defendant, i.e., a.borrower or guarantor to move an application under Order 9 Rule 13 of the Code. He would submit that an ^ application under Order 9 Rule 13 of the Code lies before a Court which has passed the decree and under Section 22(2)(g) of the Act the Debt Recovery Tribunal has no power or jurisdiction to set aside the ex parte decree. He would further submit that ouster of the jurisdiction of the civil Court has not expressly been provided. Learned counsel has placed reliance on the judgments of the hlon'ble Supreme Court in Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corporation, 2009 AIR SCW 6262, Indian Bank vs. ABS Marine Products Pvt. Ltd., AIR 2006 SC 1899 and Indian Bank vs. D.C. Mangalraj, 2006 INDLAW MAD 888 (Madras High Court). It was further contended by him that in any case the counsel appearing for the applicanVBank had conceded to the prayer for setting aside ex parte decree, therefore, interference is not called for and otherwise also, the learned Court below has not committed any material irregularity or illegality in exercise ofjurisdiction. 9. To consider the rival submissions made by learned counsel appearing for the parties, it would be profitable to refer and quote the provisions contained in Sections 17, 18 and 31 of the Act, which read thus: "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 due to such banks and financial institutions. (2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority ;/ ^•^'^ ^ to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act. 18. Bar of Jurisdiction.—Onand from the appointed day, no court or other authority shall have, or be entitled to exercise, any jurisdiction, powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under articles 226 and 227 ofthe Constitution) in relation to the matters specified in section 17. 31. Transfer of pending cases.—(1)Every suit or other proceeding pending before any court immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action where on it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shallstand transferred on that date to such Tribunal: Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before any court. (2) Where any suit or other proceeding stands transferred from any court to a Tribunal under sub-section (1)- (a) the court shall, as soon as may be after such transfer, forward the records of such suit or other proceeding to the Tribunal; and (b) the Tribunal may, on receipt of such records, proceed to deal with such suit or other proceeding, so far as may be, in the same manner as in the case of an application made under section 19 from the stage which was reached before such transfer or from any earlier stage as the Tribunal may deem fit." 10. On a reading of the provisions .contained in Sections 18 and 31 of the Act, it would be seen that, from the appointed day, no Court or other authority shall have jurjsdiction in relation to the matters specified in Section 17 of the Act. Section 17 of the Act, inter alia, provides that on and from the appointed day, the jurisdiction, powers and authority to entertain and decide application from the Banks and financial institutions for recovery of debts shall be exercisable by the Debt Recovery Tribunal and Section 31 of the Act provides that every suit or other proceeding pending before any Court immediately before the date of establishment of a Tribunal under the Act, being a suit or proceeding the cause of action where on it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal. 11. The Debt Recovery Tribunal at Jabalpur having jurisdiction over the present matter was constituted on 7-4-1998. The ex parte decree was passed on 10-12-1996 and the application under Order 9 Rule 13 of the Code was filed on 9-2-1998. In Bhanu Construction Co. Pvt. Ltd. vs. Andhra Bank, Hyderabad and others (supra), the Hon'ble Supreme Court has held that the bar contained in Sections 18 and 31 of the Act operates from the date the Debt Recovery Tribunal is constituted and not from the date the Act is enforced. 12. In Punjab National Bank, Dasuya vs. Chajju Ram and others (supra), the Hon'ble Supreme Court has held in paragraphs 6 and 7 of the report thus: •^ /•) ^r "6. A bare reading of the aforesaid section shows that execution application being a proceeding pending in a civil court when the Act came into force was liable to be transferred to the Tribunal because the amount for which the execution application had been filed as per the decree which had been passed, was over Rs.10 lakhs. 7. Learned counsel for the respondents submitted that the use of the words "cause of action" in Section 31 indicated that it is only pending suits which could be transferred. We are unable to agree with this submission. The words "cause of action" are preceded by the words "being a suit or proceeding". Section 31 contemplates not only the transfer of a suit but also transfer of a proceeding which may be other than a suit, like an execution application. Understood in thiscontext, the words "being a suit or proceeding the cause of action whereon it is based ..." would mean that in the case ofan execution application ifthe decree is for more than Rs.10 lakhs, then that is the cause of action or the reason for an application for execution being filed before the Tribunal." 13. In M/s Ram Laxman Glass (P) Ltd. and others vs. State of Bihar and others (supra) and Risk Capital & Technology Finance Corporation Ltd. vs. Harnath Singh Bapna and others (supra), it has been held that an application under Order 9 Rule 13 of the Code to set aside an ex parte judgment and decree pending before the civil Court on the date of constitution of Debt Recovery Tribunal stands transferred to the said Tribunal and that the term 'other proceeding' occurring in Section 31 of the Act includes application r.for setting aside ex parte decree. 8 Qft 14. The argument raised by learned counsel for non-applicant No.1 on the strength of Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corporation (supra) is to submit that the bar applies to an application preferred by the Bank and not to an application preferred by other parties for setting aside ex parte decree. In Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corporation (supra), it has been held that civil Court's jurisdiction does not stand completely ousted and that the transfer of pending cases is limited only to pending suits and that no transfer dehors Section 31 of the Act is permissible, however, in the present case, it will be seen that in view of the law laid down by the Hon'ble Supreme Court in Punjab National Bank, Dasuya vs. Chajju Ram and others (supra), M/s Ram Laxman Glass (P) Ltd. and others vs. State of Bihar and others (supra) and Risk Capital & Technology Finance Corporation Ltd. vs. Harnath Singh Bapna and others (supra), an application for setting aside ex parte decree would be covered within the term 'other proceeding' under Section 31 of the Act and that the bar under Section 31 of the Act would apply to the present proceeding because the application for setting aside ex parte decree filed on 9-2-1998 was pending on 7-4- 1998 when the Debt Recovery Tribunal, Jabalpur was constituted. 15. In the case law relied by learned counsel for non-applicant No.1 in Indian Bank vs. ABS Marine Products Pvt. Ltd. (supra), it has been held that the bar under Sections 17, 18 and 31 of the Act is with regard to applications by Banks and financial institutions for 'recovery of its debts and not for any other suit filed against the Bank. \\n ;r^ :1 /^? /y 'y ^) In the present case, the original suit was preferred by the applicant/Bank and no suit was ever presented by non-applicant No.1, therefore, the judgment in Indian Bank vs. ABS Marine Products Pvt. Ltd. (supra) has no appljcation in the present case. 16. Insofar as the judgment in Indian Bank vs. D.C. Mangalraj (supra), relied by learned counsel for non-applicant No.1, holding that an application under Order 9 Rule 13 of the Code will not come within the meaning of the term 'other proceeding' under Section 31 of the Act, this Court is in respectful disagreement with the law laid down by the Madras High Court. 17. In the opinion of this Court, the words 'other proceeding' occurring in Section 31 of the Act is to be read ejusdem generis and that the words 'other proceeding' have to be read and understood in terms of the main proceeding from which and out of which the other proceeding has arisen. In Assistant Collector of Central Excise, Guntur vs. Ramdev Tobacco Company, (1991) 2 SCC 119, the Hon'ble Supreme Court has held that the rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined. By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires. In the said case, the Hon'ble Supreme Court was considering the meaning of the words "other 1egal proceeding" occurring in sub-section (2) of Section 40 of the ^ Central Excise and Salt Act, 1944 and it has been held therein that the expression "other legal proceeding" must be read ejusdem generis with the preceding words 'suit' and 'prosecution' as they constitute a genus. In the present case, the main proceeding, i.e., the suit for recovery of a sum more than Rs.10 Lakhs was filed by the Bank and thus any other proceeding which is an offshoot of the main suit like proceeding for setting aside ex parte judgment and decree, proceeding for execution etc. would be covered within the term 'other proceeding' under Section 31 of the Act. Theview taken by this Court is supported by the decision in M/s Ram Laxman Glass (P) Ltd. and others vs. State of Bihar and others (supra) and Risk Capital & Technology Finance Corporation Ltd. vs. Harnath Singh Bapna and others (supra). 18. Thus, this Court is of the considered opinion that the learned Court belbw had no jurisdiction to decide non-applicant No.l's application under Order 9 Rule 13 of the Code and as soon as the Debt Recovery Tribunal at Jabalpur was constituted with effect from 7-4-1998, the proceeding stood transferred to the Debt Recovery Tribunal, Jabalpur by operation of law as provided under Section 31 of the Act. Since the impugned order is without jurisdiction, this Court is not considering other arguments on merits of the case. 19. As a consequence, the impugned order dated 4-3-2006 is set aside. The civil revision is allowed. The record be sent back to the Court below for being transferred to the Debt Recovery Tribynal, '^ li |i'JH;rtH "'%.. 11 ^ Jabalpur under Section 31 ofthe Act. There shall be no order as to costs. Sd//- Prashant Kumar Mishra Judge Gopat