HIGH COURT OF MADHYA PRADESH, JABALPUR W.P. No.5941/2009 Smt. Shakuntala Pathak .. .. Petitioner Vs./- Manmoham Mishra and others .. .. Respondents ------------ For the Petitioner : Shri R.K. Verma, Advocate For Respondent No.7 : Shri Arvind Kumar Pandey, Advocate For Respondent No.8 : Shri Sanjay Dwivedi, Advocate =============== Present: HON’BLE MR. JUSTICE ALOK ARADHE ---------------------------------------------------------------- ORDER (24.08.2011) In this writ petition under Article 227 of the Constitution of India, the petitioner has challenged the validity of the order dated 25.2.2009 passed by the trial Court. In order to appreciate the petitioner's challenge to the impugned order, few facts need mention, which are stated infra. 2. The petitioner and respondents No.1 to 6 are members of joint Hindu family. Father of the petitioner late Shri Krishna Prasad Mishra was having certain ancestral properties at Seoni as well as plot bearing No.48/2 and 48/8 situate in Seoni Township, which was the self-acquired property of the father of the petitioner. After the death of father of the petitioner, the properties devolved on his two sons namely late Ram Swaroop Mishra and Manmohan Mishra as well as the petitioner. The petitioner being the daughter of late Shri Krishna Prasad Mishra has one-third share in the property. The respondent No.2 availed of the financial assistance from respondent No.7 Bank. Since the amount of loan was not repaid, the property was attached and put to auction. A notice for auction of the property was published in the month of August, 2007. The petitioner filed the suit seeking the relief of declaration that will dated 30.6.1984 executed by late Shri Krishna Prasad Mishra in favour of respondents No.2 and 3 is null and void. The petitioner also sought the decree of partition and possession to the extent of her one-third share in the property. 2 3. On receipt of the summons, respondent No.7 filed an application under Section 10 read with Section 151 of the Code of Civil Procedure for stay of the proceedings before the trial Court on the ground that two original applications namely O.A. No.88/2005 and O.A. No.89/05 have been filed by respondent No.7 Bank before the Debts Recovery Tribunal, Jabalpur. The petitioner filed the reply to the aforesaid applications and opposed the prayer. 4. The trial Court however vide impugned order dated 25.2.2009 inter-alia held that subject matter of the civil suit as well as the Debts Recovery Tribunal and the parties to the civil suit and the proceedings in the Debt Recovery Tribunal are the same. It was further held that in view of Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the '2002 Act'), the trial Court has no jurisdiction to proceed with the civil suit. Accordingly, the trial Court stayed the proceedings with a direction that plaintiff may move an objection before the Debts Recovery Tribunal and if the Debts Recovery Tribunal holds that the trial Court has jurisdiction, 3 then the Court would proceed with the suit. Accordingly, the application preferred by respondent No.7 was allowed. 5. Learned counsel for the petitioner submitted that in the facts and circumstances of the case, the provisions of Section 10 of the Code of Civil Procedure has no application. It was argued that reliefs claimed in the proceedings before the Debts Recovery Tribunal as well as before the trial Court are different. It was further submitted that under the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as the '1993 Act'), a financial institution can approach the Tribunal for recovery of the amount of loan. The Debts Recovery Tribunal cannot decide the title of a person who is not a party to the loan transaction. In support of his submissions, learned counsel for the petitioner has placed reliance on decisions of Supreme Court in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646 as well as Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd., and others, (2004) 3 SCC 584. 4 6. On the other hand Shri Arvind Kumar Pandey, learned counsel for respondent No.7 submitted that the petitioner has moved an application for intervention in the proceedings before the Debts Recovery Tribunal, which has been allowed by the Debts Recovery Tribunal. It is further submitted that in view of bar contained in Section 34 of the 2002 Act, the civil Court has no jurisdiction to try the suit. In support of his submissions, learned counsel for respondent No.7 has placed reliance on decisions of the Supreme Court in State Bank of India Vs. Ranjan Chemicals Ltd., and another, (2007) 1 SCC 97 and Industrial Investment Bank of India Ltd., Vs. Marshal's Power & Telecom (I) Ltd., and another, (2007) 1 SCC 106. 7. I have considered the submissions made on both sides. Section 17 of the 1993 Act provides that the 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. Section 18 of 1993 Acts provides that on and from the appointed day, no court or other authority shall 5 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 of the Constitution) in relation to the matters specified in section 17. Similarly, on a careful scrutiny of section 34 of 2002 Act it is apparent that jurisdiction of the civil court is barred in respect of matters which the Debts Recovery Tribunal or the Appellate Tribunal is empowered to determine in respect of any action taken or to be taken in pursuance of any power conferred under this Act. In Nahar Industrial Enterprises Limited (supra) the Supreme Court has held that jurisdiction of the civil court is plenary in nature. The Civil Court is entitled to decide the respective claims of the parties in a suit unless the same is ousted expressly by a statute or by necessary implications. It has further been held that Debts Recovery Tribunal cannot be treated as a civil court. The Tribunal has been constituted with specific purpose and has a limited jurisdiction. It can neither pass a decree nor can debtor seek declaratory relief from the Tribunal. The debtor can file counter claim before the Tribunal. It has also been held that jurisdiction of the civil court will be ousted only in respect of the matters contained in Section 18 which 6 has a direct co-relation with Section 17 thereof, that is to say that the matter must relate to a debts payable to a bank or a financial institution. The application before the Tribunal would lie only at the instance of the bank or the financial institution for the recovery of its debt. 8. In civil suit the petitioner has sought a relief that Will dated 30.6.1984 executed by Krishna Prasad Mishra in favour of respondents No.2 and 3 is null and void. The petitioner has also sought a decree for partition and possession in respect of her 1/3rd share in the property. Thus, the subject-matter of the suit is not within the purview of Section 17 of 1993 Act. Therefore, the bar contained either in Section 18 of 1993 Act or in Section 34 of 2002 Act does not apply in the facts and circumstances of the case. In view of the aforesaid enunciation of law by the Supreme Court in the case of Nahar Industrial Enterprises Limited (supra) the trial Court clearly fell in error in holding that it has no jurisdiction to try the suit. 9. In order to attract the applicability of section 10 of the Code of Civil Procedure the conditions precedent are that there has to be 7 substantial identity of the parties and of the subject matter in both the proceedings. [See: L.G.Sapre vs. M.P. Agriculture Corporation, 1978 (1) MPLJ 358]. Another test of applicability of section 10 of the Code of Civil Procedure is that whether the judgment in earlier suit will operate as res judicata. [See: Nandkishore vs. Amir Ahmed @ Peer Khan, 1966 JLJ SN 134] In the instant case the subject- matter of both the proceedings as well as the parties to the proceedings are different. The judgment passed by the Debts Recovery Tribunal would not operate as resjudicata in the civil suit. Therefore, for the aforementioned reasons the trial Court committed an error of law in staying the proceedings under Section 10 of the Code of Civil Procedure. For the aforementioned reasons the order passed by the trial Court suffers from jurisdictional infirmity. Accordingly, the same is hereby quashed. 10. In the result, the writ petition is allowed. (Alok Aradhe) Judge rm/a 8