1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R M/s Jai Jai Marbels & Ors. Vs. Udaipur Mahila Urban Cooperative Bank Ltd. & Ors. S.B.CIVIL WRIT PETITION NO.4474/2008 Date of Order : : 12/08/2008 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr.Dalpat Raj Bhandari, for the petitioners. BY THE COURT: By the instant writ petition under Article 226 of the Constitution of India, the order Annexure-7 dated 29th April, 2008 passed by respondent No.2, the Debts Recovery Tribunal, Jaipur (for short “the Tribunal”) has been challenged by the petitioners. It is contended by learned counsel for the petitioners that the respondent No.1, Udaipur Mahila Urban Cooperative Bank (for short “the Cooperative Bank”) filed an Original Application No.18/006 before the respondent No.2 Tribunal 2 under Section 19 of the Recovery of the Debts Due to Banks and Financial Institutions Act, 1993 (Act No.51 of 1993) (for short “the Act of 1993”). The reply to said OA was filed by the petitioners raising objections with regard to the jurisdiction of the Tribunal to entertain the Original Application filed by the respondent Cooperative Bank. Thus, the petitioners, right from filing of its reply/written statements, were conscious of the fact that Tribunal has no jurisdiction to entertain the Original Application filed by the respondent Cooperative Bank. However, the objection raised by the petitioners was not seriously viewed at the inception of the case and the Tribunal went-on proceeding with the matter and the matter has been contested by the parties. At that stage, the respondent-Bank filed an application before the respondent Tribunal stating therein that in view of the decision of the Hon'ble High Court in Greater Bombay Cooperative Bank Ltd. Vs. United Yarn Tex Pvt. Ltd. & Ors. reported in 2007 AIR SCW 2325 and a decision of this Court in M/s Phonex Impex Vs. State of Rajasthan & Ors. reported in 1998(1) WLC 725 (Raj.) wherein it was categorically held that the Cooperative Banks are not covered under the provisions of the Act of 1993 as the recovery mechanism has already been provided in the concerned Cooperative Acts. Relying on the aforesaid decisions, the respondent Tribunal returned the 3 Original Application No.18 of 2006 to the respondent Cooperative Bank by imposing a cost of Rs.2000/-. It is contended by learned counsel for the petitioner that it was not open for the respondent Tribunal to have returned the Original Application as the provisions of Order 7 Rule 10 CPC are not applicable to the proceedings before the Tribunal. According to learned counsel for the petitioners, it was not a plaint which could have been returned under Order 7 Rule 10 CPC for want of jurisdiction. Learned counsel for the petitioners has relied on decisions of the Hon'ble Supreme Court in C.Beepathuma & Ors. Vs. Velasari Shankaranarayana Kadamblithaya & Ors., AIR 1965 SC 241 and in R.N.Gosain Vs. Yashpal Dhir, AIR 1993 SC 352 wherein the question of approbate and reprobate has been considered by the Hon'ble Supreme Court. In the case of R.N.Gosain Vs. Yashpal Dhir (supra), the doctrine of election and its applicability has also been considered. The decisions relied on by learned counsel for the petitioners with regard to the approbate and reprobate are of no help to the petitioners. So far as the controversy raised in the present writ petition is concerned, even according to the petitioners, the Tribunal has no jurisdiction to entertain the Original Application filed by the respondent Cooperative Bank and if the contention of the petitioners before the Tribunal is 4 accepted that the respondent Tribunal has no jurisdiction to entertain the OA filed by the respondent Bank then too, keeping in view the decisions of Supreme Court and of this Court referred to above, undisputedly the respondent Tribunal has no jurisdiction to entertain the Original Application and then the only course left open was to return the OA to the concerned party, the petitioner therein, and at that time of returning the OA, no other directions has been passed protecting any interest of the respondent Bank. In the circumstances, in my view, the order impugned cannot be said to be unjust warranting interference by this Court while invoking the extra ordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is devoid of merit and the same is, therefore, dismissed summarily. No order as to costs. (H.R. PANWAR), J. NK 5 S.B.CIVIL MISC.STAY APPLICATION NO.8118/2008 IN S.B.CIVIL WRIT PETITION NO.4474/2008 Date of order : : 12.08.2008 HON'BLE MR.H.R.PANWAR,J. Mr.Dalpat Raj Bhandari, for the petitioner. Since the writ petition itself has been dismissed, the stay petition also stands dismissed. (H.R.PANWAR), J. NK