IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 FAO.No. 10 of 2005() -------------------- AGAINST THE ORDER DATED 30.9.04 IN IA 1073/2004 IN OS.119/2001 of ADDL.SUB COURT, KOCHI APPELLANTS/DEFENDANTS 1 TO 3/RESPONDENTS 1 TO 3. -------------------------------------------------------------------- 1. SMT.SONIA NAZAR, AGED 36 YEARS, W/O. ABDU K.K.NAZAR (K.K.ABDU NAZAR), EARL GARDENS, ERAMALLOOR, CHANDIROOR, ALAPPUZHA DISTRICT - 688 537. 2. MR. ABDU K.K.NAZAR, AGED 42 YEARS, (K.K.ABDU NAZAR), S/O. KUTTIMOOSA, -DO- -DO-. 3. MR.KUTTIMOOSA K.A., S/O. ALIYAR, MANAGING PARTNER, PEARL FOODS, ERAMALLOOR, CHERTHALA, ALAPPUZHA DISTRICT-688 537. BY ADV. SRI.JOHN NUMPELI (JUNIOR) RESPONDENTS: PLAINTIFF & DEFENDANTS 4 TO 6: --------------------------------------------- 1. STATE BANK OF INDIA, ERNAKULAM BRANCH, K.T.D.C. BUILDING, SHANMUGHAM ROAD, ERNAKULAM, KOCHI - 682 011, REPRESENTED BY ITS CHIEF MANAGER. 2. M/S. FIFA BUILDERS PRIVATE LIMITED, FIFA TOWERS, PANAYAPPALLY, KOCHI - 682 002, REPRESENTED BY ITS MANGING DIRECTOR, C.A.NAZAR. 3. MR.C.A.NAZAR, MANAGING DIRECTOR, M/S. FIFA BUILDERS PRIVATE LIMITED, PANAYAPPALLY, KOZHI - 682 002. FAO 10/2005 :2: 4. MRS. ABDUSABI NAZAR, DIRECTOR, M/S. FIFA BUILDERS PRIVATE LIMITED, PANAYAPPALLY, KOCHI - 682 002. (NAME OF RESPONDENTS 2 TO 4 IS DELETED FROM THE ARRAY OF PARTIEIS VIDE ORDER DATED 19.9.2007 ON I.A. 1955/2007). ADVS. M/S. K.K.CHANDRAN PILLAI & R.SHYAM KUMAR FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO 10/2005 ORDER ON I.A. 127/2005 IN F.A.O. 10/2005 // DISMISSED // SD/-, P.R. RAMAN, JUDGE. 1.6.2009. SD/-, P.BHAVADASAN, JUDGE. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = FAO NO. 10 OF 2005 = = = = = = == = = = = J U D G M E N T = = = = = = = = = = DATED THIS, THE 1ST DAY OF JUNE, 2009. Raman, J. This appeal arises out of an order passed in I.A. 1073/2004 in o.s.119/2001 on the file of the Additional Sub Court, Kochi. That was an application filed by the State Bank of India, who is the first respondent herein, seeking to transfer the case O.S. 119/2001 to the Debt Recovery Tribunal. The court held that the records cannot be transferred under Section 31 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as “the Act”). But the plaint is ordered to be returned to the plaintiff for presentation before the Debt Recovery Tribunal, within 15 days of the date of the order. The defendants who are Respondents 1 to 3 in the said I.A. have filed this appeal mainly challenging the later part of the order by which the court returned the plaint to be presented to the Debt Recovery Tribunal since they are not affected by the order refusing to transfer the case to the Debt Recovery Tribunal. 2. In order to appreciate the contentions raised by the parties and to see whether the order impugned is correct in law, we may have to FAO 10/2005 2 refer to a few facts relevant for answering the question. The suit was filed for recovery of an amount of Rs. 12,00,206/- with future interest. During the pendency of the suit, the assets and liabilities of the SBI Home Finance Limited were assigned in favour of the State Bank of India as per a registered deed dated 17.2.2004. There is also a provision in the assignment deed enabling the Bank to continue with the suit filed by the SBI Home Finance Limited. So however, instead of continuing the suit instituted by the SBI Homes Finance Limited with the power so granted, the State Bank of India thought fit to get themselves substituted as the plaintiff in the suit, which was allowed by the court below. On the Bank becoming plaintiff thus by way of substitution as aforesaid and the suit claim being in excess of Rs. 10 lakhs, the civil court ceased to have jurisdiction in the matter by virtue of Sections 17 and 18 read with Section 1(4) of the Act. As far as the provision for transfer is concerned, it will apply only if the matter was pending as on the date on which the Act was enforced by notification. Admittedly, this was a case filed only in 2001, much after the notification in question. Therefore, the court below rightly held that the case on hand cannot be transferred as sought for by the Bank. 3. The only point that arises for consideration is as to whether the court could have returned the plaint to be presented to the Debt Recovery FAO 10/2005 3 Tribunal or should it reject the plaint having found that it has no jurisdiction to proceed further in the matter. As per Order 7 Rule 10 of the Code of Civil Procedure, the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted. Here, the suit is not to be instituted in any civil court as jurisdiction of the civil court has been ousted by express provision as noticed above. If so, the civil court being found as having no jurisdiction to proceed further, in view of the specific bar under the Act and in view of the subsequent event of the Bank having been substituted as the plaintiff, a situation has been created by the Bank by their own act whereby the suit could only be rejected since Order 7 Rule 10 C.P.C. has no application. Therefore, the court below in returning the suit to be presented before appropriate court was wrong, rather it should have rejected the plaint. However, the mere fact that it was directed to be returned to be presented before appropriate court in no way prejudicially affect the right of the parties. It is the consequence that will have to be worked out. If the plaint is rejected and fresh proceedings are initiated before the DRT, will the original cause of action survive or whether the action is barred, would naturally arise for consideration. That is a matter which the parties are entitled to raise before the DRT. Therefore, we are not considering the effect of the order passed by the court below rather leave open the right FAO 10/2005 4 of the parties to agitate their rights and rise all contentions before the forum where the case is subsequently filed. It is submitted that pursuant to the order passed by the civil court, the plaint was presented before the Debt Recovery Tribunal and court fee has been paid and it is still pending. If so, at this distance of time, it is not necessary to set aside the order, but as stated earlier, the plaint will be deemed as rejected and the proceedings initiated before the DRT will be held as a fresh proceeding subject to all the consequences that may arise as on the date of filing of the application before the DRT. The appeal is thus disposed of as above. The appeal is disposed of as above. P.R. RAMAN, (JUDGE) P.BHAVADASAN, (JUDGE) KNC/-