1 904-566-07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srj CHAMBER SUMMONS NO.566 OF 2007 IN SUIT NO.2004 OF 2006 Oriental Insurance Co. Ltd. .. Plaintiff V/s. Indian Airlines Ltd. .. Defendant. Mr. A.S.Vidyarthi, for Plaintiff. Mr. Firoz Bharucha with Sheetal Mhatre i/b. Mulla & Mulla, for Defendant, in support of Chamber Summons. CORAM : A.A.SAYED,J. DATE : 9th MARCH,2011 P.C.:- 1 This Chamber Summons is taken out by the Defendant under Order VII Rule 11 of the Code of Civil Procedure, 1908, seeking rejection of the plaint. 2 The suit is filed by Oriental Insurance Company Limited against Indian Airlines Limited. The Defendant's case in the Affidavit in support of the Chamber Summons is that in view of the law laid down by Supreme Court of India in the case of Oil and Natural Gas Commission v/s. Collector of Central Excise, reported in 1995 Supp (4) 2 904-566-07.sxw SCC 541 & (2004) 6 SCC 437 the dispute being a dispute between two public sector undertakings of the Government of India, it ought to have been referred by the Plaintiff to the High Powered Committee which was appointed in pursuance of the aforesaid decision of the Hon ble Supreme Court. In the case of ONGC v/s. Collector of Central Excise (2004) 6 SCC 437 (Supra), the Hon ble Supreme Court has observed that wherever Appeals, Petitions etc., are filed without clearance of the High Powered Committee so as to save limitation, the appellant or the petitioner, as the case may be, shall within a month from such filing refer the matter to the High Powered Committee with prior notice to the nodal authority in Cabinet Secretariat in that behalf. 3 According to the learned counsel for the Defendant, it was incumbent upon the Plaintiff to approach the High Powered Committee within a period of one month from the filing of the suit and in view of the failure on part of the Plaintiff to approach the High Powered Committee within the stipulated period of one month, the suit ought to be rejected under Order VII Rule 11 (d) of the C.P.C., 1908. The learned counsel for the Plaintiff has also relied upon the decision in the case of Mahanagar Telephone Nigam Ltd, v/s. Chairman, Central Board, Direct Taxes & Another  (2004) 6 Supreme Court Cases 431, in support of his contention. 3 904-566-07.sxw 4 The learned counsel for the Defendant on the other hand has brought to my notice a recent judgment of the Constitution Bench of the Hon ble Supreme Court dated 17th February, 2011 in the case of Electronics Corporation of India Ltd. v/s. Union of India & Others in Civil Appeal No.1883 of 2011 wherein the Hon ble Supreme Court has observed that High Powered Committee has outlived its utility and in view of the changed scenario, the earlier orders directing appointment of High Powered Committee are required to be recalled. Paragraphs 9 and 10 of the said judgment are relevant. They read as under:- 9 The idea behind setting up of this Committee, initially, called a High Powered Committee (HPC), later on called as Committee of Secretaries (Cos) and finally termed as Committee on Disputes (CoD) was to ensure that resources of the State are not frittered away in inter se litigations between entities of the State, which could be best resolved, by an empowered CoD. The machinery contemplated was only to ensure that no litigation comes to Court without the parties having had an opportunity of conciliation before an in-house committee. [see: para 3 of the order dated 7.1.1994 (supra)] Whilst the principle and the object behind the aforestated Orders is unexceptionable and laudatory, experience has shown that despite best efforts of the CoD, the mechanism has not achieved the results for which it was constituted and has in fact led to delays in litigation. We have already given two examples hereinabove. They indicate that on same set of facts, clearance is given in one case and refused in the other. This has led a PSU to institute a SLP in this Court on the ground of discrimination. We need not multiply such illustrations. The mechanism was set up with a laudatory object. However, the mechanism has led to delay in filing of civil 4 904-566-07.sxw appeals causing loss of revenue. For example, in many cases of exemptions, the Industry Department gives exemption, while the same is denied by the Revenue Department. Similarly, with the enactment of regulatory laws in several cases there could be overlapping of jurisdictions between, let us say, SEBI and insurance regulators. Civil appeals lie to this Court. Stakes in such cases are huge. One cannot possibly expect timely clearance by CoD. In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility. In the changed scenario indicated above, we are of the view that time has come under the above circumstances to recall the directions of this Court in its various Orders reported as (i) 1995 Supp (4) SCC 541 dated 11.10.1991, (ii) (2004) 6 SCC 437 dated 7.1.1994 and (iii) (2007) 7 SCC 39 dated 20.7.2007. 10 In the circumstances, we hereby recall the following Orders reported in: (i) 1995 Supp(4) SCC 541 dated 11.10.1991 (ii) (2004) 6 SCC 437 dated 7.1.1994 (iii)(2007) 7 SCC 39 dated 20.7.2007. 5 Having considered the rival contentions, in my view, the prayer in the Chamber Summons cannot be granted. Order VII Rule 11 (d) of C.P.C., 1908 under which the present Chamber Summons has been filed, deals with rejection of the plaint when the same is barred by any law. It is not in dispute that the suit was filed just prior to the same getting time barred and in order to save limitation. The learned counsel for the Defendant has not pointed out any judgment which lays down that after filing of the suit if within the 30 days as stipulated by the Hon'ble Supreme Court, the dispute is not referred by 5 904-566-07.sxw the Plaintiff to the High Powered Committee, the plaint is required to be rejected or the suit is liable to be dismissed. Merely because there is a delay in referring the matter to the High Powered Committee, it cannot entail an order of dismissal of the suit or rejection of the plaint. The reference to the High Powered Committee is more of a conciliatory process and it is not possible to take such an extreme view by which the rights of the Plaintiffs would be effaced, merely because the dispute has not been referred to the High Powered Committee by the Plaintiff within one month of filing of the suit. It is significant to note that the Hon'ble Supreme Court in the case of Mahanagar Telephone Nigam Ltd.(Supra) has also observed that the dispute shall not be proceeded with by the courts in absence of clearance from the High Powered Committee, which would necessarily imply that in the event of delay, the matter would not entail a dismissal order, but only not be proceeded with. 6 In that view of the matter, I am unable to accept the argument of the learned counsel for the Defendant that since the dispute is not referred to the High Powered Committee, within 30 days after filing of the suit, the case of the Plaintiff would fall within Order VII Rule 11 (d) and that the plaint is liable to be rejected on that count. 6 904-566-07.sxw 7 Even otherwise, it is required to be noted that on the last occasion when the matter came up before me, the learned counsel for the Plaintiff had fairly stated that the Plaintiff was ready and willing to refer the matter to the High Powered Committee. However, during the interregnum, the Constitution Bench Judgment of the Hon ble Supreme Court has been delivered, recalling the orders in the following three cases:- (i) 1995 Supp (4) SCC 541 dated 11.10.1991, (ii) (2004) 6 SCC 437 dated 7.1.1994 and (iii)(2007) 7 SCC 39 dated 20.7.2007. 8 Thus, as of today, the judgments in the case of Oil & Natural Gas Commission v/s. Collector of Central Excise, 1995(4) SCC 541 & (2004) 6 SCC 437, relied upon by the learned counsel for the Defendants, are no more good law, in view of the judgment of the Constitution Bench of Supreme Court in the case of Electronics Corporation of India Ltd. (Supra), and there is now no requirement of referring the dispute to the High Powered Committee. 9 For the aforesaid reasons, the Chamber Summons would have to be rejected and accordingly rejected. (A.A.SAYED,J.)