AO/41/2008 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 41 of 2008 With CIVIL APPLICATION No. 1928 of 2008 In APPEAL FROM ORDER No. 41 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= RASIKLAL S MARADIA & 1 - Appellant(s) Versus ICICI BANK LIMITED & 1 - Respondent(s) ========================================================= Appearance : MR. K.M. PATEL LEARNED SENIOR ADVOCATE FOR MR JIGAR M PATEL for Appellant(s) : 1 - 2. MR. MIHIR THAKORE LEARNED SENIOR ADVOCATE FOR SINGHI & CO for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 01/12/2008 ORAL JUDGMENT 1. Present Appeal from Order is preferred by the appellants original plaintiff Nos. 1 & 3 under AO/41/2008 2/23 JUDGMENT Order 43 Rule 1 (a) of the Code of Civil Procedure challenging the order dated 10.1.2008 passed by the learned City Civil Court, Ahmedabad below Exhs. 20 & 21 passed in Civil Suit No. 1431 of 2003, by which the learned Auxiliary Chamber Judge, City Civil Court has allowed the aforesaid two chamber summons by ordering to return the plaint to the plaintiff for being presented in DRT, Mumbai under Order 7 Rule 10 of the Code of Civil Procedure. 2. The facts leading to the present Appeal from Order in nutshell are as under: 3. The original plaintiffs are guarantors of Maradia Chemicals Limited. The said Maradia Chemicals Limited obtained loan from the defendant Bank i.e. I.C.I.C.I. Bank (hereinafter referred to as “the Bank”). The said Maradia Chemicals Limited suffered loss and it appears that defendant Bank recalled the loan facility. That the Bank had filed a Civil Suit against the Maradia Chemicals Limited for recovery of loan advance to it initially on the original side of the Hon'ble Mumbai High Court and subsequently the said suit has been transferred to Debt Recovery Tribunal (hereinafter referred to as “DRT”), Mumbai which is numbered as O.A. No. 977 of 1999. In the said suit, the appellants herein original plaintiffs are also the defendants in the said proceedings. It also appears that even Company filed one Suit in the City Civil Court AO/41/2008 3/23 JUDGMENT at Ahmedabad being Civil Suit No. 3189 of 2002 for claiming damages from the Bank on the ground that the Bank had released foreign loan of lesser amount then agreed which resulted in delay in implementation of projects by Company. In the said suit, Chamber summons was taken out for rejection of plaint and by order dated 24.1.2003 the plaint was ordered to be returned to the company under Order 7 Rule 10 of the Code of Civil Procedure for being presented before DRT. Mumbai. Against the said order the company preferred Appeal from Order No. 53 of 2003 with Cross Objection No. 2 of 2003 before this Court and by an order dated 26.2.2003, the order of the trial Court by which the plaint was returned came to be set aside and instead of that, it is ordered that the plaint against the defendant No. 1 ICICI Bank Ltd., shall stand rejected under the provisions of Order 10 Rule 11 of the Civil Procedure Code. The suit against the defendants No. 2 and 3 shall proceed further own its merits and from the stage on which the impugned order is passed by the trial Court. Therefore, the suit filed by the Company against the Bank for claiming damages has been dismissed and / or returned to the Company for presenting it before the DRT, Mumbai. That the appellants herein original plaintiffs No.1 and 3 had also instituted present Civil Suit No. 1431 of 2003 against the Bank also for damages for the recovery of aggregate amount of Rs. 2078.97 AO/41/2008 4/23 JUDGMENT crores with running interest thereon 12% p.a. from the date of suit till realization alleging that Bank has violated principles of Banking in respect of the loan sanctioned to the plaintiff by the Bank as a result whereof plaintiffs suffered damages. It is required to be noted that suit filed by the Company against the Bank being Civil Suit No. 3189 of 2002 was also for claiming the damages, on the same ground, which is not ordered to be returned to the Company for presenting it before the DRT, Mumbai for treating it as counter claim in the suit pending before the DRT, Mumbai. In the said suit No. 1431 of 2003 filed by the appellant original plaintiffs directors and/ or guarantors who are also the defendants in the suit filed by the Bank before the DRT, Mumbai, the respondent Bank, took out two Chamber summons vide Exhs. 20 and 21 for rejection of the plaint under Order 7 Rule 11(A) of the Code of Civil Procedure mainly on the ground that suit is barred in view of the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993. The aforesaid chamber summons were resisted by reply Exhs. 27 and 33. While relying upon the decision of the Hon'ble Supreme Court in the case of Indian Bank Vs. ABS Marine Products Pvt. Ltd., reported in 2006 AIR SCW 2156, it was submitted that the suit for claiming damages was not barred under the provisions of the aforesaid act and considering Section 9 of the Code of Civil AO/41/2008 5/23 JUDGMENT Procedure Civil Court would have jurisdiction. That considering the decision of the Hon'ble Supreme Court in the case of State Bank of India Vs. Ranjan Chemicals Limited & Anr., reported in (2006) 134 Com. Case 24(SC) and even considering the fact that even the suit filed by the Company against the Bank being Civil Suit No. 1431 of 2003 claiming damages on the very ground has been rejected and / or returned to the plaintiff /company for presenting it before the DRT, Mumbai and is ordered to be treated as counter claim in the suit before the DRT, Mumbai. The Auxiliary Chamber Judge, City Civil Court by impugned order has allowed the aforesaid two chamber summons and the plaint is ordered to be returned to the plaintiffs-appellants herein for being presented before DRT, Mumbai under Order 7 Rule 10 of the Code of Civil Procedure instead of rejecting the said plaint. Being aggrieved and dissatisfied with the impugned order dated 10.1.2008 passed by the learned City Civil Court, Ahmedabad below Exhs. 20 & 21 passed in Civil Suit No. 1431 of 2003, the appellants original plaintiffs No. 1 and 3 have preferred the present Appeal from Order along with Civil Application for interim relief therein. 4. Shri K.M. Patel, learned Senior Advocate appearing on behalf of the appellants-plaintiffs No.1 and 3 has vehemently submitted that the learned Chamber Judge has materially erred in AO/41/2008 6/23 JUDGMENT allowing the aforesaid chamber summons and returning the plaint to the appellants- plaintiffs for being presented in DRT, Mumbai in exercise of power under Order 7 Rule 10 of the Code of Civil Procedure. It is submitted that as such the application below Exhs. 20 & 21 were under Order 7 Rule 11 of the Code of Civil Procedure to reject the plaint on the ground that considering the provisions of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as “the Act”), the Civil Suit before the learned City Civil Court is not maintainable and/or barred and the learned Chamber Judge has passed the impugned order returning the plaint to the plaintiffs to present it before the DRT, Mumbai in exercise of power under Order 7 Rule 10 of the Code of Civil Procedure. It is submitted that as such the Civil Court has no jurisdiction to transfer any suit pending before it to any other Civil Court or Tribunal. It is submitted that as such there is no provision in the Code of Civil Procedure empowering the subordinate Civil Court to transfer any suit pending before it to any other Civil Court or Tribunal except Section 24 of the Code of Civil Procedure. It is submitted that on perusal of Section 24 of the Code of Civil Procedure, High Court or District Court can withdraw any suit, appeal or other proceedings pending in any Court subordinate to its and transfer the same to any Court AO/41/2008 7/23 JUDGMENT subordinate to it. It is submitted that DRT, Mumbai cannot be said to be Court subordinate to City Civil Court, Ahmedabad or even to High Court of Gujarat within the meaning of Section 24 of the Code of Civil Procedure. Therefore, the learned Chamber Judge is not justified in law by returning the plaint to the plaintiffs for being presented in DRT, Mumbai. It is submitted that by doing so, the City Civil Court, Ahmedabad has exercised powers of Section 24 of the Code of Civil Procedure, which otherwise, the City Civil Court does not possess. It is further submitted that even otherwise considering Section 9 of the Code of Civil Procedure r/w Section 18 of the Act, it cannot be said that suit filed by the borrower claiming damages for breach of contract is barred. 5. Shri K.M. Patel, learned Senior Advocate appearing on behalf of the appellants-plaintiffs No. 1 and 3 has further submitted that even otherwise Section 9 of the Code of Civil Procedure squarely lays down that Civil Court shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is submitted that as observed by the Hon'ble Supreme Court in catena of decisions Civil Court has jurisdiction to try all suits of civil nature and exclusion of jurisdiction of AO/41/2008 8/23 JUDGMENT the Civil Court is not to be lightly inferred. In support of his above submissions, he has relied upon the following decisions of the Hon'ble Supreme Court. (1)Sahebgouda (dead) by L.Rs and other Vs. Ogeppa and other reported in AIR 2003 SC 2743. (2)Dwarka Prasad Agarwal (D) by L.Rs. And anotehr Vs. Ramesh Chandra Agarwala and Others reported in AIR 2003 SC 2696. It is, therefore, submitted that as such application submitted by the defendants under Order 7 Rule 11 of the Code of Civil Procedure was required to be dismissed. It is submitted that even the suit filed by the appellants-plaintiffs No. 1 and 3 claiming damages for breach of contract etc., cannot be said to be and / or cannot be considered as counter claim as envisaged under Section 19 of the Act. It is submitted that as such the decision of the Hon'ble Suprme Court in the case of Indian Bank (supra) is clearly applicable to the facts of the present case. It is further submitted that contrary decision of the Hon'ble Supreme Court in the case of United Bank of India, Calcutta Vs. Abhijeet Tea Company Pvt. Ltd. reported in (2000) 7 SCC, 357 has been dealt with by the Hon'ble Supreme Court in the Case of Indian Bank (supra) and after distinguished the same on facts the Hon'ble Supreme Court has held that jurisdiction of the AO/41/2008 9/23 JUDGMENT Civil Court is not barred in regard to any suit filed by the borrower or any other person against the bank for any relief and that even such a suit cannot be said to be considered as counter claim to the suit filed before the DRT. 6. Shri K.M. Patel, learned Senior Advocate appearing on behalf of the appellants has further submitted that though the decision of the Hon'ble Supreme Court in the case of Indian Bank (supra) came to be considered by the Hon'ble Apex Court in the subsequent decision in the case of State Bank of India (supra) ,however the Hon'ble Supreme Court has not overruled the decision in Indian Bank(supra) and, therefore, as such the decision in the case of Indian Bank (supra) still holds the field. Therefore, it is requested to allow the present Appeal from Order. 7. Appeal from Order is opposed by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the respondent Bank. It is submitted that looking to the impugned order passed by the learned Chamber Judge it cannot be said that the learned Chamber Judge has exercised the power under Section 24 of the Code of Civil Procedure. It is submitted that in exercise of inherent powers and in the facts and circumstances of the case, the learned Chamber Judge has ordered to return the plaint to the plaintiffs for presentation it to the DRT, Mumbai. It is AO/41/2008 10/23 JUDGMENT submitted that while passing the impugned order the learned Chamber Judge has relied upon the decision of the Hon'ble Supreme Court in the case of State Bank of India (supra) whereby the Hon'ble Supreme Court has in identical fact situation passed an order to treat the suit filed before the the Civil Suit for damages as counter claim in the suit filed by the Bank before DRT. It is submitted that the Hon'ble Supreme Court has observed that in a case where the the suit is filed by the Bank for recovery of loan amount and the suit is filed by the borrower before the Civil Court for damages for breach of contract etc., with respect to the same transaction, in that case if a joint trial is ordered that would avoid separate overlapping evidence being taken in the two different causes put in the suit and it will be more convenient to try them together in the interests of the parties and in the interests of effective trial of the causes. It is submitted that as such power inheres in the Court as an inherent power. It is submitted that in the case before the Hon'ble Supreme Court when the learned trial Court and the High Court did not transfer the suit filed in the Civil Court to the DRT, Patna, the Hon'ble Supreme Court has held that the learned trial Court and the High Court have failed to exercise the jurisdiction vested in them by law in refusing to transfer the suit to the DRT, Patna. Therefore, it is submitted AO/41/2008 11/23 JUDGMENT relying upon the aforesaid decision and when the learned Chamber Judge of the City Civil Court has exercised the inherent powers, it cannot be said that the learned Chamber Judge has committed an error. 8. It is further submitted that even otherwise, in the facts and circumstances of the case, the learned Chamber Judge has not committed any error in ordering to return the plaint to the plaintiffs to present it before DRT, Mumbai. It is submitted that in the present case after the proceedings were initiated by the Bank before the DRT, Mumbai, the Company had filed one suit in the City Civil Court, Ahmedabad being Civil Suit No. 3189 of 2002 for claiming damages from the Bank on the ground that bank had released foreign loan of lesser amount then agreed which has resulted in delay in implementation of the project by the said company and in the said suit also similar chamber summons was taken out by the defendants under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint and the said chamber summons was allowed the plaint was returned to the plaintiffs for being presented to the DRT, Mumbai under Order 7 Rule 10 of the Code of Civil Procedure. It is submitted that the said order was challenged by the Company before the this Court and the learned Single Judge of this Court modified the aforesaid order and the plaint qua bank was AO/41/2008 12/23 JUDGMENT rejected and company is relegated to approach DRT, Mumbai and, therefore, now the Company is also before the DRT, Mumbai claiming damages on the ground stated hereinabove. It is submitted that now the present suit for damages on the similar ground is by the Directors of the borrower company and, therefore, having satisfied with issue involved in the present proceedings is pending before DRT, Mumbai which are interconnected. Considering the above decision of this Court when the learned Judge has passed the impugned order returning the plaint to the plaintiffs for presenting it before the DRT, Mumbai, it cannot be said that the learned Chamber Judge has committed any error which calls for interference of this Court. It is submitted that even otherwise, the controversy in question is squarely covered by the decision of the Hon'ble Supreme Court in the case of State Bank of India (Supra) and the said decision is after considering the decision of the Hon'ble in the case of Indian Bank (supra) , therefore, it is requested to dismiss the present Appeal from Order. 9. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that defendant I.C.I.C.I. Bank had filed suit against the Mardia Chemicals Ltd.,(Borrower Company) for recovery of the loan advanced to it initially on AO/41/2008 13/23 JUDGMENT the original side of the Mumbai High Court and subsequently the said suit has been transferred to the DRT, Mumbai which is numbered as OA 53 of 2000. It is required to be noted that during the pendency of the aforesaid proceedings before the DRT, Mumbai the borrower company and others instituted Civil Suit No. 3989 of 2002 in the City Civil Court at Ahmedabad for claiming damages from the bank on the ground that bank had released foreign loan of lesser then amount which was agreed, which has resulted in delay in implementation of the project by company. It is also required to be noted that earlier vide order passed by the learned Single Judge dated 26.2.2003 in Appeal from Order No. 53 of 2002 the borrower company is directed to file its counter claim before the DRT, Mumbai and the aforesaid suit for damages by the borrower company is dismissed (the plaint by borrower company is ordered to be returned to the plaintiff No.1 borrower company for presenting it before the DRT, Mumbai which is ordered to be treated as counter claim). It is also required to be noted that so far as the present suit is concerned the same is now by the Directors of the borrower company claiming damages for the same loan transaction and / or on similar ground which is now ordered to be returned to the plaintiffs to present it before the DRT, Mumbai. In substance the same will now have to be treated as a counter suit / counter claim in the AO/41/2008 14/23 JUDGMENT aforesaid proceedings initiated by the bank for recovery of the loan amount. Therefore, even question with respect to the damages for breach of contract and/or claiming damages on the ground that the lesser loan amount was sanctioned which resulted into delay, the said question is now at large before the DRT, Mumbai in the proceedings by the borrower company. Under the circumstances, as such the issue involved in the present proceedings is pending before the DRT, Mumbai and the present suits are interconnected and /or virtually similar and/or similar. Identical question came to be considered by the Hon'ble Supreme Court in the case of State Bank of India (supra) and even referring the decision of the Hon'ble Supreme Court in the case of Indian Bank (supra) in an identical fact situation the Hon'ble Supreme Court has held that it will be just and proper to order a joint trial of two causes. The Hon'ble Supreme Court in the aforesaid decision has also considered the decision in the case of United Bank of India (supra). The Hon'ble Supreme Court after referring the decision of the Hon'ble Supreme Court in the case of United Bank of India (supra) and Indian Bank (supra) has observed and held as under: 8. The Bank sanctioned an ad hoc packing credit limit of Rs. 20 lacs on 12-7-1991 and an additional ad hoc packing credit limit of Rs. 5 lacs on 6.12.1991, subject to the terms AO/41/2008 15/23 JUDGMENT contained in the Sanction Advice dated 12-7-1991. In regard to the initial limit of Rs. 20 lacs, the company executed an agreement dated 15-7-1991 and its 4 Directors executed a guarantee dated 15-7-1991. In regard to the additional amount of Rs.5 lacs, a promissory note and an agreement were executed on 20-11- 1991. Claiming that the company failed to pay the amounts advanced, the Bank filed an application before the Tribunal for recovery of Rs. 30,67,820.04. The cause of action for the Bank's application is the alleged non-payment of the amounts advanced to the borrower, in pursuance of ad hoc limits sanctioned on 12-7-1991 and 6-12-1991. On the other hand, the subject-matter of the suit filed by the borrower against the Bank and the cause of action therefor, are totally unconnected with and different from the subject-matter of and cause of action for the Bank's application. On the request of the borrower, the Bank by letter dated 19-12-1991 sanctioned several credit facilities to the borrower, namely, (i) a Medium Term Loan of Rs. 90 lacs; (ii) packing credit loan facilities to a limit of Rs. 50 lacs; (iii) bridge loan of Rs.15 lacs; and (iv) guarantee facility to an extent of Rs. 85.42 lacs. The Bank also agreed to absorb the ad hoc packing credit facilities of Rs. 25 lacs already sanctioned within the fresh limits sanctioned. The borrower alleged that it proceeded to a arrange its affairs and activities on the assumption that the Bank will be releasing the loans; and that the Bank failed to release the credit facilities, thereby putting it (the borrower) to huge losses, apart from denying the AO/41/2008 16/23 JUDGMENT profits from the business. Consequently, it filed C.S. No. 7/1995 for recovery of Rs. 25,38,58,000/- made up of Rs. 11,33,22,000/- towards loss of profits, Rs.10 crores as compensation for loss of goodwill and reputation, Rs. 3.50 crores as damages on account of the impact of inflation and difference in foreign exchange rates, Rs. 31,36,000/- towards expenditure which became infructuous on account of the Bank's failure to release the loans, and Rs. 24 lacs towards interest up to the date of the suit. The cause of action for the borrower's suit is the alleged breach by the Bank, in not releasing the sanctioned loans. 9. The issues that arose in the Bank's application was whether the borrower failed to repay the sums borrowed and whether the Bank was entitled to the amounts claimed. On the other hand, the issues that arose in the borrower's suit were whether the Bank had promised/agreed to advance certain monies; whether the Bank committed breach in refusing to release such loans in terms of the sanction letter; whether the borrower failed to fulfill the terms and conditions of sanction and, therefore, the Bank's refusal to advance, was justified; and even if there was breach, whether the borrower suffered any loss on account of such non-disbursement and if so whether the borrower was entitled to the amounts claimed. While the claim of the Bank was for an ascertained sum due from the borrower, the claim of the borrower was for damages which required firstly a determination by the court as to whether the Bank was AO/41/2008 17/23 JUDGMENT liable to pay damages and thereafter assessment of quantum of such damages. Thus there is absolutely no connection between the subject-matter of the two suits and they are no way connected. A decision in one does not depend on the other. Nor could there be any apprehension of