- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL REVISION APPLICATION NO.138 OF 2004 Trisma Constructions Pvt.Ltd., ) A company incorporated and ) registered as per the provisions of ) The Companies Act, 1956 having its ) office at Bhosale Pavillion 759/341 ) Bhandarkar Road, Deccan Gymkhana, ) Pune 411 004. ).. Applicant (Org.Defendant No.10) Versus 1. Shama Prakash Lunawat, ) Age 48 years, Occ: Business, ) residing at 50, Hemdev House, ) N.S.Patkar Marg, Mumbai 400 007.) 2. Deleted. ) 3. Deleted. ) 4. Deleted. ) 5. Deleted. ) 6. Mrs.Jayashree Kanaiyalalji ) Baphana, Age 62 years, ) Occ : residing at Dayton, ) 1004 Pepper Hill Drive, ) Ohio 45429 U.S.A. ) 7. Deleted. ) 8. Deleted. ) 9. Deleted. ) 10. State Bank of India, ) a Banking Company constituted ) under the State Bank of India ) Act, 1955 having its Head Office) at State Bank Bhavan, ) Backbay Reclamation, ) - 2 - Madame Cama Road, ) Mumbai 400 023 and branch ) office amongst other branches ) at Industrial Fianance Branch ) at Wakadewadi, Pune. ).. Respondents -- Shri V.V.Tulzapurkar with Ms Chandana Salgaonkar-Radia for the Applicant. Shri Tejas Deshpande i/b Amit Karkhanis and Ms Ragini Rao for respondent No.1. Shri V.A.Thorat, Senior Advocate, with Shri B.G.Bidan Chandran for respondent No.6. Shri R.S.Datar for respondent No.10. -- CORAM : R.M.S.KHANDEPARKAR,J DATED : 20th OCTOBER, 2004. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard. Rule. By consent, the rule is made returnable forthwith. The learned advocates for the respondents waive the service. Perused the records. 2. The present revision application arises from the order dated 15th August, 2004 passed under Section 9A of the Code of civil Procedure, 1908 by the trial Court deciding the preliminary issue regarding jurisdiction of the civil Court to entertain, try and decide the civil suit No.186 of 2004 filed by the - 3 - respondent No.1. The property in question is a piece of land together with the building standing thereon bearing CTS No.42/43 situated at Shankar Seth Road, Gultekadi, Pune. The suit has been filed by the respondent No.1 praying for separation and partition of 1/15th share claimed by her in the suit property and for consequential relief that the purchase effected in favour of the petitioner by virtue of certificate issued in that regard by Debt Recovery Tribunal, Pune, under the provisions of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, hereinafter called as "the said Act", is not binding on 1/15th share of the respondent No.1 in the suit property and further that the petitioner and the respondent No.10 be restrained from developing the suit property till the respondent No.1’s share is separated by metes and bounds. The suit also relates to yet another property bearing Survey No.316 CTS No.1021 situated at Mal Aali, Chakan, Taluka - Khed, District - Pune, however, the same is not subject matter of the proceedings in relation to the absence of jurisdiction raised by the petitioner. The petitioner has already filed the written statement on 14th May, 2004. However, prior to that, the petitioner had filed the application under Section 9A of the Code of Civil Procedure as - 4 - applicable to the State of Maharashtra raising preliminary issue regarding absence of jurisdiction to the civil Court to entertain and try the suit in respect of the suit property in view of the relief in the nature of temporary injunction sought for by the respondent No.1 in the said suit. 3. It is the case of the petitioner that the suit property has been purchased by the petitioner in public auction conducted by the Recovery Officer, D.R.T., Pune, after following the entire procedure laid down in the rules comprised under the Second and Third Schedule of the Income Tax Act, 1961 ( hereinafter called as "the said Rules" ) applicable to the sale and attachment of the suit property in terms of Section 29 of the said Act, and pursuant to the certificate of sale issued by the recovery officer, the possession of the suit property has already been taken over by the petitioner and thereby has acquired the ownership thereto, besides being a bonafide purchaser thereof, and such share certificates cannot be challenged by way of a civil suit by claiming undivided share in the suit property and the remedy, if any, lies under the said Act itself, and, therefore, the civil Court lacks jurisdiction to entertain the suit filed by the respondent No.1. - 5 - 4. On the other hand, it is the case of the respondent No.1/plaintiff that the suit is for partition of the property and challenge to the petitioner’s title to the suit property is limited to the extent of 1/15th share of the respondent No.1 in the suit property. The auction purchase of the suit property by the petitioner had been "as is where is basis", and hence, it cannot give title to the petitioner in respect of 1/15th share of the respondent No.1 therein. In any case, the possession by one of the co-sharers is on behalf of all the co-sharers and the petitioner was well aware of the 1/15th share of the respondent No.1 pursuant to the objection lodged by the respondent No.1 before the Recovery Officer pursuant to the public notice issued inviting objections from the interested persons. It is further contention of the respondent No.1 that the jurisdiction of Debt Recovery Tribunal under the said Act is only in respect of recovery of debts, and it does not extend to the civil rights of the parties, nor the certificate by Recovery Officer can affect the ownership rights of the respondent No.1 in the suit property and, therefore, the civil Court has jurisdiction to entertain and try the said suit. - 6 - 5. It is not in dispute that in recovery proceedings initiated by the respondent No.10, consequent to the attachment of the suit property, the respondent No.1 had filed objections stating that she had no concern whatsoever with the loan transaction between the respondent No.10 - bank and the Debtor and that the respondent No.1 has acquired undivided share in the suit property by way of inheritance, though the said share has not been partitioned. The application was rejected by the Recovery Officer by his order dated 10th February, 2002 holding that, as on that day, the respondent No.1’s share was not defined and co-sharers can bid at the auction and in terms of the Rule 68 of the said rules, her bid will have to be given priority over other bids, besides all the properties which are not exempted from the attachment under Section 60 of the Code of Civil Procedure were liable to be attached and sold in view of the Rule 10 of the said rules and the joint properties were not exempted from such attachment and sale. The suit property was offered for public sale on 30th April, 2003 on ‘as is where is basis’ by issuing public notice and proclamation of sale. On 1st October, 2003, the petitioner purchased the suit property at public auction. On 16th October, 2003, the petitioner paid entire bid amount and on 5th November, 2003, the - 7 - Recovery Officer issued order of confirmation of sale and thereafter on 6th November, 2003 issued certificate of sale in favour of the petitioner. In February, 2004, the respondent No.1 filed the present suit. 6. The trial Court considering the facts of the case, as revealed from the pleadings and materials placed before it, has held that the respondent No.1 and some of the defendants have no liability under the recovery certificate against the debtor and in favour of the respondent-bank, and therefore, they have not incurred any liability in respect of the said loan transaction between the respondent-bank and the debtor and that the suit property was never given as the security towards the loan repayment but was attached in execution of the recovery certificate against the debtor and that the respondent No.1 and some of the defendants had raised objection before the Recovery Officer but the same was dismissed without considering the contention raised therein, and therefore, the respondent No.1 was left with no alternative than to file the suit for partition; besides that the Rule 11(6) of the said rules clearly and specifically entitles an aggrieved party to file such suit and hence the civil Court has jurisdiction to entertain - 8 - the present suit. 7. The impugned order is sought to be challenged on the ground that the civil Court has no jurisdiction to entertain the suit insofar as it relates to setting aside the purchase of the suit property, since the same has been purchased by the petitioner in an auction sale conducted by Recovery Officer in exercise of the powers under the relevant provisions of the said Act read with those of the said rules. It is the contention on behalf of the petitioner that even though the Rule 11(6) of the said rules provides a remedy of suit, the same is impliedly barred in relation to the orders passed by the Recovery Officer under such Act for three reasons, firstly that there is a specific remedy of appeal provided under the said Act and thereby a complete machinery for adjudication and further for execution of the recovery certificate is available under the said Act itself; secondly that the provision of appeal under Section 30(1) specifically provides that the said remedy is available "notwithstanding anything contained in Section 29" which means that it is a non-obstante clause and though because of Section 29 the provisions of Rule 11(6) of the said rules can be otherwise resorted to, such remedy stands excluded by virtue of - 9 - the said non-obstante clause; thirdly that the point relating to bar of civil suit has already been decided by the Division Bench of this Court. While drawing attention to the various provisions of the said Act along with the said rules, reliance is placed in the decision of the Division Bench of this Court in Keshrimal Jivji Shah & Anr. v. Bank of Maharashtra & Keshrimal Jivji Shah & Anr. v. Bank of Maharashtra & Keshrimal Jivji Shah & Anr. v. Bank of Maharashtra & Ors., Ors., Ors., reported in 2004(3) Mh.L.J. 893. 8. On the other hand the impugned order is sought to be justified on the ground that the absence of jurisdiction to the civil court is primararily in relation to the matter pertaining to the recovery of debts from the debtor to the banks and financial institutions and not pertaining to the rights of third parties to the property sought to be attached in such proceedings, and secondly that the said rules clearly permit a challenge to any decision of the recovery officer by way of civil suit and the availability of an appeal under Section 30 of the said Act does oust the jurisdiction to the civil court in that regard. It is also contended that the sale by the authorities could be to the extent of the property of the debtor and not of the stranger in which case, the exercise being beyond jurisdiction of the Recovery Officer under the said Act, the same can be challenged in the - 10 - civil Court. According to the learned advocate for the respondents, the ouster of jurisdiction of a civil Court must be clearly spelt out from the statute under which the proceedings are sought to be taken. The reliance is placed in the decisions in the matter of Cofex Exports Ltd. v. Canara Bank, Cofex Exports Ltd. v. Canara Bank, Cofex Exports Ltd. v. Canara Bank, reported in AIR 1997 Delhi 355, in the matter of Sahebgouda (Dead) by Sahebgouda (Dead) by Sahebgouda (Dead) by LRs. & Ors. v. Ogeppa & Ors., LRs. & Ors. v. Ogeppa & Ors., LRs. & Ors. v. Ogeppa & Ors., reported in (2003) 6 SCC 151, in the matter of Mrs.Janki Vashdeo Bhojwani & Mrs.Janki Vashdeo Bhojwani & Mrs.Janki Vashdeo Bhojwani & Anr. v. Indusind Bank Ltd. & Ors., Anr. v. Indusind Bank Ltd. & Ors., Anr. v. Indusind Bank Ltd. & Ors., reported in 2004 D.R.T.D.1 (SC) and in the matter of ICICI Bank Ltd. ICICI Bank Ltd. ICICI Bank Ltd. v. V.T.Prakash & Ors. v. V.T.Prakash & Ors. v. V.T.Prakash & Ors., reported in 2004(1) Bank CLR 129(AP). 9. The basic principles of law is that a suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. (Vide Vide Vide Smt.Ganga Bai v. Vijay Kumar & Ors., Smt.Ganga Bai v. Vijay Kumar & Ors., Smt.Ganga Bai v. Vijay Kumar & Ors., (1974) 2 SCC 393. For every cause of action, there is inherent right in the every aggrieved person to file a suit, unless specifically or impliedly barred by a statute. For maintainability of suit, no provision of law is required, but for non-maintainability of the suit, there has to be a bar prescribed either expressly or impliedly. The statutory recognition to this basic principle of law is to be found comprised under - 11 - Section 9 of the Code of Civil Procedure which empowers the civil Courts to entertain and try all suits of civil nature, except those of which cognizance by them is either expressly or impliedly barred or excluded. However, it is well settled that such exclusion is not to be readily inferred and presumption is always in favour of the existence of jurisdiction rather than exclusion thereof. Amongst various tests laid down by the Apex Court regarding exclusion of jurisdiction of Civil Court in Dhulabhai Dhulabhai Dhulabhai etc. v. State of Madhya Pradesh & Anr., etc. v. State of Madhya Pradesh & Anr., etc. v. State of Madhya Pradesh & Anr., reported in AIR 1969 SC 78, two of the fundamental principles are that where the statute gives a finality to the orders of the special tribunals, the civil courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit, however, such provision does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, and another one is that where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the - 12 - jurisdiction of the civil court, and where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive, and further that in the latter case, it would be necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and whether provides for all questions about the said right and liability to be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the such statute or not. In other words, in the absence of express provision in that regard, exclusion of Civil Courts’ jurisdiction is not to be inferred in cases where :- (i) the provisions of the concerned statutes are not complied with; (ii) statutory tribunal does not act in conformity with the fundamental principles of judicial procedure; (iii) when remedies normally associated - 13 - with actions in civil courts are not prescribed under the concerned statute. 10. One of the decisions, which is very relevant while dealing with the issue of civil Court’s jurisdiction and/or bar to its jurisdiction, is in the matter of Shiv Kumar Chadha v. Municipal Corporation Shiv Kumar Chadha v. Municipal Corporation Shiv Kumar Chadha v. Municipal Corporation of Delhi & Ors., of Delhi & Ors., of Delhi & Ors., reported in 1993(3) SCC 161, wherein it was ruled that if the Court is of prima facie opinion that the order passed by the authority is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the authority or that the order is outside the relevant statute, then the suit would be maintainable. It was further held that where a particular Act creates a right or liability and also provides a forum for enforcement of such right or for protection or enforcement of a liability without any authority in law, the ouster of the Court’s jurisdiction can be upheld on the finding that the rights or liabilities in question have been created by the Act without touching the pre-existing common law right and remedy provided therein is adequate and complete, but the situation will be different where a statute purports to curb and curtail a pre-existing common law right - 14 - and purports to oust jurisdiction of the Court so far as the remedy against the orders passed under such statute is concerned. The Courts have to be more vigilant while examining the question as to whether adequate redressal machinery has been provided for the aggrieved person to agitate his grievance under the concerned statute and whether, inspite of the bar placed on the power of the Court in such cases, the orders passed under such statute can be examined on "jurisdictional question". 11. In Raja Ram Kumar Bhargava (dead) by LRs. v. Raja Ram Kumar Bhargava (dead) by LRs. v. Raja Ram Kumar Bhargava (dead) by LRs. v. Union of India, Union of India, Union of India, reported in AIR 1988 SC 752, it was held that if the statute merely recognises a right pre-existing in common law and creates a new statutory remedy for enforcement thereof, without expressly excluding the civil courts’ jurisdiction, it is open to the aggrieved person to elect either of the two remedies, namely, statutory or by resort to a civil Court. 12. In Sahebgouda’s case (supra), Sahebgouda’s case (supra), Sahebgouda’s case (supra), the suit was filed claiming that the appellants were the ancestral wahiwatdar pujaris of Amogsidda Temple and therefore, entitled for pujariki rights, and the cause of action was stated to be the obstruction in the performance of - 15 - puja and taking away of some puja articles. The reliefs claimed were for a declaration that the appellants were wahiwatdar pujaris entitled to pujariki rights of performing puja and also a decree for injunction restraining the respondents from interfering with their rights. It was also pleaded that steps had been taken to get the Temple registered as a public trust with the Assistant Charity Commissioner and an inquiry in that connection had been instituted. In the background of those facts, and considering the plea of being ancestral of pujaris of temple, and not of being trustees of the Trust as well as the absence of any relief in the nature of declaration regarding the existence or otherwise of a trust or that any particular property is the property of such trust which comes within the purview of the Deputy or Assistant Charity Commissioner under the provisions of the relevant statute, it was held that:- "The only relief claimed is a declaration regarding the right of the appellants to function as hereditary pujaris or their pujariki rights of performing puja in the Temple and a consequential decree for injunction for restraining the respondents from interfering with the - 16 - aforesaid rights of the appellants. The The The reliefs so claimed do not at all come reliefs so claimed do not at all come reliefs so claimed do not at all come within the ambit of Section 19 or Section within the ambit of Section 19 or Section within the ambit of Section 19 or Section 79 of the Act on which the Deputy or 79 of the Act on which the Deputy or 79 of the Act on which the Deputy or Assistant Charity Commissioner has the Assistant Charity Commissioner has the Assistant Charity Commissioner has the jurisdiction to hold an inquiry and give jurisdiction to hold an inquiry and give jurisdiction to hold an inquiry and give a decision." a decision." a decision." (Emphasis supplied ) 13. It is well settled that the word "jurisdiction" has both, a ‘narrow’ as well as ‘wider’ meaning. In ‘narrow’ sense, it means the authority or the power to embark upon an inquiry in the matter in dispute. In ‘wider’ sense, it covers several aspects such as a decision being in non compliance with the provisions of the relevant statute. Obviously, a determination of a question, other than the one which directs it to decide, would be a decision not under the provisions of the relevant statute. In Union of Union of Union of Indian v. Tarachand Gupta & Brothers, Indian v. Tarachand Gupta & Brothers, Indian v. Tarachand Gupta & Brothers, reported in (1971) 1 SCC 486, it was found that the import license authorised the holder thereof to import parts and accessories of motor-cyle and scooter under the Entry No.295 of Schedule to the Import Control Order and the party accordingly had imported those parts. The - 17 - custom authorities, however, on examination of the goods, came to a conclusion that they were scooters and motor-cycles in knocked down condition, which were prohibited under Entry No.294. Considering the limited jurisdiction of the authorities to ascertain as to whether the goods imported were the spare parts under Entry No.295 or not, and not empowered to embark into a inquiry as to whether the goods, though parts and accessories, are so comprehensive that if put together would constitute motor-cycles and scooters covered by the Entry No.294, it was held that the order of the authorities was not in compliance of the provisions of the relevant statute as well as not in respect of which the authority was not vested with jurisdiction and being so, the provision excluding jurisdiction of the civil court was not applicable. Reference was also made by the Apex Court to the decision in Secretary of State, represented by the Secretary of State, represented by the Secretary of State, represented by the Collector of South Arcot v. Mask and Company, Collector of South Arcot v. Mask and Company, Collector of South Arcot v. Mask and Company, reported in 1940(67) Indian Appeals 222, wherein it was held that an order of a statutory tribunal, such as Collector or Customs under the Sea Customs Act, which statute makes final, subject of course, to an appeal provided under it, can be set aside in a suit before a civil court on two grounds, namely, when the provisions of the statute have not been complied with - 18 - and when the Tribunal has failed to act in conformity with the fundamental rules of judicial process. 14. It does not, however, mean that jurisdictional error arising out of a mere wrong decision can be subjected to judicial review by the civil Court because "at bottom the problem of defining the concept of jurisdiction for the purpose of judicial review has been one of public policy rather than one of logic", as was held by the Apex Court in Hari Prasad Hari Prasad Hari Prasad Mulshankar Trivedi v. V.B.Raju & Ors., Mulshankar Trivedi v. V.B.Raju & Ors., Mulshankar Trivedi v. V.B.Raju & Ors., reported in AIR 1972 SC 2602. At the same time, it should not be forgotten that a Court or Tribunal can be said to have jurisdiction to decide a particular matter in case where it must not only have jurisdiction to try the dispute brought before it, but must also have authority to the pass order sought for. It is not enough to have jurisdiction in relation to the subject matter but it