STATE BANK OF INDIA A

M/S. RAN.JAN CHEMICALS LTD. AND ANR.

OCTOBER 11. 1006

[H.K. SEMA AND P.K. BALASUBRAMANY AN. JJ.] B

Recove1:v of Debts Due to Banks and Financial Institutions Act, 1993: Sections 19(6) to (//) .

Set off and/or counter claim-Clai111 for-Debt Recovel)' Tribunal- C Joint trial for recovery of debts-Bank grallled a ter111 loan and also extended a cash credit facility to the companJ~The company failed to 111eet its obligalions under the accou111 and, therefore, the Bank issued a notice calling upon the company lo repay the a111oun/s due under the loan transaclions-Company filed a suil before !he civil cour/ c!ai111ing that /he Bank had failed to fi1lfil its D obligarions while 111aking available /he cash credit facility and therefore, the company had suffered losses-The co111pany also claimed da111ages wilh interest-Bankjiled an original application before !he Debt Recove1:v Tribunal for recove1)' of loan-In !he civil suit, the Bank filed an applica/ion praying

1ha1 the said suit be /rans/erred to the Debt Recovel)' Tribunal for being fried jointly with /he original application-The trial court refi1sed to /rans/er !he E suil-High Cour/ affirmed the decision-Correclness of-Held: The two claims are inextricably inter linked-The consequences arising ou/ of !he respective claims are referable to the cause of ac/ion arising out of the veJ)' transactions between !he bank and the co111pany-The claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt F Recovery Tribunal-Civil suit /rans/erred to Debt Recovel)' Tribunal for being jointly tried with the original application filed by the Bank-Code of Civil

Procedure, 1908, Order VIII Rule 6A.

The appellant-Bank granted a term loan to the respondent-company and also extended a cash credit facility to the respondent. The respondent- G company failed to meet its obligations under the account and, therefore, the appellant-Bank issued a notice calling upon the respondent to repay the amounts due under the loan transactions.

On receipt of the notice, the respondent-company filed a suit before

1~ H

A the Civil Court claiming that the appellant-Bank had failed to fulfil its

obligations while making available the cash credit facility and, therefore, the respondent-company had suffered losses. The respondent-company had also claimed damages with interest.

The appellant-Bank, in its turn, filed an original application for B recovery of the loan before the Debt Recovery Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

In the civil suit, the appellant-Bank filed an application praying that the said suit be transferred to the Debt Recovery Tribunal for being tried jointly with the original application since both the proceedings arose out of the same cause of action, namely, the grant of loan and the providing C of a cash credit facility by the appellant-Bank to the respondent-company and that the suit by the respondent was really in the nature of a counterclaim or set off as against the claim of the appellant for recovery of the

loan.

The trial court took the view that the suit filed by the respondent- D company did not come within the purview of Section 19(9) of the Recovery of Debts Act and refused to transfer the suit to the Debt Recovery Tribunal. The High Court affirmed the decision of the trial court. Hence the appeal.

E The following question arose before the Court:-

Whether the cause of action put in the suit by the company could be considered to be one in the nature of a set off or a counter claim within the meaning of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993?

F Allowing the appeal, the Court

HELD: I. A question of joint trial arises when the rival parties file independent actions but based on the same cause of action; for enforcement of rights or obligations springing out of that cause of action.

The elements of a cause of action are: first, the breach of duty owing by G one person to another and; second, the damage resulting to the other from the breach, or the fact of combination of facts which gives rise to a right to sue. Viewed thus, it cannot but be said that both the claims han arisen out of the same transaction or out of the same relationship that came into existence between the bank and the company and the alleged breach of H obligations by one or the other. Therefore, it has to be held that the two -

STATE BANK OF INDI.\ r R,\N.IAN CllEllC\LS LTD 14 7

actions have sprung out of the same cause of action. 1151-C, D, E, Fl A

2.1. It is clear from Sections 19(6) to (I I) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 that the Recovery Tribunal has the jurisdiction to entertain a claim of set off or a counter claim arising out of the same cause of action and has also the power to treat the counter claim as a cross suit. Therefore, if the claim of the 8 company in the suit partakes the character of a cross action founded on the same cause of action, the same could be tried by the Debt Recovery Tribunal.1151-F, GI

2.3. It is, therefore, clear that the claim made by the company in the suit filed by it could be considered as a claim for set off and/or as a counter C claim within the meaning of Section 19 of the Act. ( 152-B(

United Bank of India v. Abhijit Tea Co. Pvt. Ltd. (2000( 7 SCC 357, relied on.

3. Even otherwise, after the amendment of Order VIII Rule 6A of tlte Code of Civil Procedure, 1908 by Act 104of1976, for maintaining a D counter claim, the cross action need not even arise out of the same cause of action or be intrinsically connected with the cause of action sued upon.

Any right or claim in respect of a cause of action accruing to the defendant against the plaintiff can be made the subject matter of a counter claim.

Section 19(8) of the Act is also on the same lines. Therefore, there can be no objection to treating a claim in favour of a company arising out of the E loan transaction and/or rehabilitation package as a counter claim in the application filed by the Bank before the Debt Recovery Tribunal.

(152-B, C, DI

4. The two claims are inextricably inter linked. The consequences arising out of the respective claims are referable to the cause of action F arising out of the very transactions between the bank and the company.

The claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt Recovery Tribunal in view of the amended section 19 of the Act. 1153-F, GI

Indian Bank v. ABS Marine l'raducts (PJ ltd., (20061 5 SCC 72, G referred to.

5. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both the proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or a series of transactions or that for some other H

A reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that it will save the expenses of two attendances by counsel B and witnesses and the trial judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims.

If, therefore, the claim made by the company can be tried as a counter claim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions C before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction or a series of transactions. [154-A, B, C, D]

6. A joint trial is ordered when a court finds that the order of such D a trial would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the court as an inherent power. It is not possible to accept the argument that every time the court transfers a suit E to another court or orders a joint trial, it has to have the consent of the parties. A court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. Since the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience F of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a cross suit. Obviously, the proceeding before the Debt Recovery Tribunal could not be transferred to the civil court since that is a proceeding before a Tribunal specially constituted by G the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified. 1154-D, E, F, GI

7. It is clear that in both the proceedings what are involved are, the H nature of the loan transaction and the cash credit facility extended, the

, ...

STATE BANK OF INDIA v. RANJAN CHEMICALS LTD. [P.K.BALASUBRAMANYAN, JJI 49

relationship that has sprung out of the transactions, the right and A obligations arising out of them, their breach if any, who is responsible for the breach and its extent. The same basic evidence will have to be taken in both the proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the sum, if any, due to the bank but also to ascertain as to when and in what manner the cash credit facility was B permitted to be availed of by the company. Of course, evidence will have to be taken on whether there was any violation of conditions or laches on the part of the bank in fulfilling its obligations causing damage to the company. At least a part of the evidence will be common. Duplication of evidence could be avoided if the two actions are tried together. If a decree

is granted to the bank on the basis of its accounts, and the damages, if C any, is decreed in favour of the company, a set off could be directed and an ultimate order or decree passed in favour of the bank or the company.

This is a fit case where the two actions should be ordered to be tried together. (155-A, B, q

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4443 of2006. D

From the final Judgment and Order dated 20.5.2004 of the High Court of Judicature at Patna in Civil Revision No. 1712 of 2002.

R. Mohan, A.S.G., Sanjay Kapur, Shubhra Kapur, Rajiv Kapur and Arti E Singh for the Appellant.

K. Radha Krishnan, Krishnanand Pandey and Goutam Prasad for the Respondents.

The Judgment of the Court was delivered by

P.K. BALASUBRAMANY AN, J. I. Leave granted.

2. This appeal is filed by the State Bank of India (hereinafter referred to as the 'bank') challenging the order of the High Court of Patna affirming

an order of Subordinate Judge- I, Patna in Suit No. 168 of 2001 refusing to G transfer the suit for being tried jointly with 0.A. No. 18 of 2002 filed by the bank before the Debt Recovery Tribunal, Patna. The bank sought the transfer on the basis that the suit was in the nature of a counter claim to its claim and arose out of the same cause of action as the one put in suit by the bank before the Tribunal. The bank originally granted a term loan to Mis. Ranjan Chemicals Ltd. (hereinafter referred to as the 'company') of Rs.30 lakhs. The bank H

150 SUPREME COURT RF.PORTS [10061 SUPP. 7 S.l".R.

A further extended a cash credit facility to the company. The company failed

to meet its obligations under the account. Thereupon the bank issued a notice calling upon the company to repay the amounts due under the loan transactions and to close its accounts. On receipt of that notice, the company filed a suit before the Cou11 of Subordinate Judge -1. of Patna as Suit No. 168 of 200 I B claiming that the bank had failed to folfil its obligations while making available

the cash credit facility and has not honoured its commitments in time to release the working capital which was agreed to as part of a rehabilitation process of the company and because of the delay on the pa; t of the bank in fulfilling its obligations, the company had suffered losses leading to the Board of Industrial and Financial Reconstruction, recommending its winding C up and in view of the fact that the losses were incurred because of the failure of the bank to fulfil its obligations, the company was entitled to recover a sum of Rs. 1739.15 lacs as damages with interest thereon. The bank in its turn approached the Debt Recovery Tribunal constituted under The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 by way of 0.A.

D No. 18 of 2002 filed under Section 19( I) of that Act.

3. In the suit. the bank moved an application praying that the said suit be transferred to the Debt Recovery Tribunal for being tried jointly with 0.A.

No. 18 of 2002 pending before the Tribunal. since both proceedings arose out of the same cause of action, namely, the grant of a loan and the providing E of a cash credit facility by the bank to the company and that the suit by the company was really in the nature of a counter claim or set off, as against the claim of the bank for recovery of a sum of Rs. 833.06 lakhs on the loan account. The prayer of the bank was resisted by the company contending that the cause of action for its suit was different from the cause of action put in action by the bank in the Recovery Tribunal, that the suit for damages was F not in the nature of a counter claim or set off, but that it was an independent action that the Civil Court alone had jurisdiction to try and that the transfer prayed for was not liable to be granted. The Trial Court took the view that the suit filed by the company did not come with the purview of Section 19(9) of the Recovery of Debts Act and it could not be treated as a counter claim G in O.A. No. 18 of 2002 and hence the prayer was liable to be rejected. On

a challenge by the bank of the above said order before the High Court of

Patna, that Court held that there was no bar created by the Recovery of Debts Act or any other law, which could prevent a person from filing a suit in the civi I Court or making any claim, much less, one for damages which was even H otherwise, completely alien to the claim based on the loan made by the bank before the Tribunal. Since the suit was not thit by Section 18 of the Recovery

ST ATEBANK OF INDIA 1. RANJAN CHEMICALS LTD. [PKBALASUBRAMANYAN. J.Jl 5]

of Debts Act. the jurisdiction of the civii' Court was not affected and the A Court had full authority to proceed with the suit for damages which was filed earlier and which was unconnected with the loan transaction. The Revision was thus dismissed. This order is challenged in this appeal.

4. It appears to us that the High Court and the Trial Court asked themselves the wrong question. The question was not whether the civil Court B had jurisdiction to entertain the suit or to continue with the suit. The question was whether in the nature of the respective claims arising out of the loan transaction, it was just and proper to order a joint trial of the two causes and whether there was anything in the Recovery of Debts Act which prevented the Debt Recovery Tribunal from entertaining the claim made by the plaintiff C in the suit. A question of joint trial arises when the rival parties file independent actions but'. based on the same cause of action; for enforcement of rights or obligations springing out of that cause of action. Here, the bank had approached the Recovery Tribunal for recovery of amounts paid on the basis of the loan transaction and the cash credit facility extended to the company. The company had gone to the Civil Court claiming that it had suffered damages D because the bank had failed to fulfil its obligations based on the cash credit facilities and the rehabilitation package extended to it. The question, therefore, was whether it could be said that both claims arose out of the same cause of action giving rise to different rights of action. The elements of a cause of action are: first, the breach of duty owing by one person to another and; E second, the damage resulting to the other from the breach, or the fact of combination of facts which gives rise to a right to sue. Viewed thus, it cannot but be said that both claims have arisen out of the same transaction or out of the same relationship that came into existence between the bank and the company and the alleged breach of obligations by one or the other. We have, therefore, no hesitation in holding that the two actions have sprung out of the F same cause of action.

5. Then the question is whether the cause of action put in suit by the company could be considered to be one in the nature of a set off or a counter claim within the meaning of Section 19 of the Recovery of Debts Act. It is clear from sub sections 6 to 11 of Section 19 of the Act that the Recovery G Tribunal has the jurisdiction to entertain a claim of set off or a counter claim arising out of the same cause of action and has also the power to treat the counter claim as a cross suit. Therefore, if the claim of the company in the suit partakes the character of a cross action founded on the same cause of action, the same could be tried by the Debt Recovery Tribunal. In United H

A Bank of India, Calcut1a v. Abhijit Tea Co. Pvt. Ltd and Ors. (2000] 7 SCC

357, this Court interpreted the expression counter claim in sub Sections 8 to

11 of Section 19 as including even a claim made in an independent suit and a claim for damages based on the same transaction as being broadly a plea of set off falling under sub Sections 6 and 7 of Section 19 of the Act. With B respect, we see no reason to differ from the reasoning and conclusion therein in that regard. It is therefore clear that the claim made by the company in the suit filed by it could be considered as a claim for set off and/or as a counter claim within the meaning of Section 19 of the Act.

6. Even otherwise, after the amendment of Order VIII Rule 6A of the C Code of Civil Procedure by Act I 04 of 1976, for maintaining a counterclaim, the cross action need not even arise out of the same cause of action or be intrinsically connected with the cause of action sued upon. Any right or claim in respect of a cause of action accruing to the defendant against the plaintiff can be made the subject matter of a counter-claim. Section 19(8) cf the Act is also on the same lines. Therefore, there can be no objection to D treating a claim in favour of the Company arising out of the Loan transaction and/or rehabilitation package as a counter-claim in the application filed by the Bank before the Debt Recovery Tribunal.

7. Learned Senior Counsel for the company, relied on the decision in Indian Bank v. ABS Marine Products (P) ltd., (2006] 5 SCC 72 in support E of the preposition that the Civil Court continued to have jurisdiction to try the suit filed by the company and it could not be said that the subject matter of the bank's claim before; the Recovery Tribunal and the suit filed by the company against the bank are inextricably connected, in that the decision in one, would affect the decision in the other. He also urged that unless both the F parties agreed for the independent suit being considered as a counter claim in the-bank's application before the Tribunal, the suit could not be transferred to the Tribunal. Counsel pai1icularly relied upon the discussion in paragraph 9 of the judgment suggesting that when the claim of the bank was for an ascertained sum due from the borrower and the claim of the borrower was for damages, it could not be said that there was any connection between the G subject matter of the two actions and that a decision in one would depend on the other. Nor could there be any apprehension of different and inconsistent results if the application and the suit are tried and decided separately by different fora.

8. Their Lordships have held that the subject matter of the suit and the

STATE BANK OF INDIA .-. RANJAN CHEMICALS LTD. [PKBALASUBRAMANY AN, JJ] 53

proceeding before the Tribunal were in no way connected, but it appears to A us that the two litigations arise out of the same transaction or series of transactions between the Bank and the Company. Even if, as observed by their Lordships, a counter claim in the application by the Bank before the Tribunal was not the only remedy available to the Company but an option was available to the Company to sue, and the Company has exercised that B option by filing a suit, it does not in any manner affect the power of the Court to order a joint trial of the application and the suit in the Debt Recove1y Tribunal provided the Debt Recovery Tribunal has jurisdiction to entertain the action of the Company. What is relevant to note is that the claim of the Company in the suit could have been maintained as a counter-claim in the application of the bank, even if it did not arise out of the same cause of C action. There is no warrant for curtailing the power of the Court to order joint trial by introducing a restriction to the effect that a joint trial can be ordered only if there was consent by both sides. The power inherent in the Court on well accepted principles to order a joint trial, does not depend upon the volition of the parties but it depends upon the convenience of trial, saving of time and expenses and the avoidance of duplicating at least a part of the D evidence leading to saving of time and money.

9. On going through the application filed by the bank and the plaint filed by the company in the present case, we find that both causes of action arise out of a cash credit facility extended by the bank to the company and E while the claim by the bank is for recovery of amounts due under that account, the suit of the company is for recovery of compensation based on the alleged failure of the bank to fulfil its obligations under the cash credit facility in time and in a meaningful manner. Obviously, if the company is able to establish its claim, the amount that may be awarded to it by way of damages has necessarily to be set off against any amount that may be found due to the F bank on the basis of the loan transaction including the cash credit facility extended by it to the company. The decree to the one or the other would depend upon an ascertainment of the rights and obligations arising out of the loan transaction and the state of the loan account. We are therefore of the view that the two claims are inextricably inter linked. The consequences G arising out of the respective claims are referable to the cause of action arising out of the vary transactions between the bank and the company. We have already indicated that the claim of the company is in essence a claim for set off and/or a counter claim, which could be tried by the Debt Recovery Tribunal in view of the amended Section 19 of the Act.

A l 0. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person B as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendance by counsel and witnesses and the trial judge will be enabled to try the two actions at the same time and take common evidence in respect of both the claims. If therefore 'the claim made by the Company C can be tried as a counter claim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above considerations. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common, especially when the two actions arise out of the same transaction D or series of transactions.

11. A joint trial is ordered when a Court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the E interests of the parties and in the interests of an effective trial of the causes.

This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the Court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A Court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. In the light of our conclusion F that the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application G filed by the bank as a cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the civil Court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified.

STATE BANK OF INDIA '"RAN.JAN CHEMICALS LTD. [P.K.BALASUBRAMANYAN, .I.] J 55

12. It is clear that in both proceedings what are involved are, the nature A of the loan transaction and the cash credit facility extended, the relationship that has spring out of the transactions, the right and obligations arising out of them, their breach if any, who is responsible for the breach and its extent.

The same basic evidence will have to be taken in both the proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the sum, B if any, due to the bank but also to ascertain as to when and in what manner the cash credit facility was permitted to be availed of by the company. Of course, evidence will have to be taken on whether there was any violation of conditions or !aches on the part of the bank in fulfilling its obligations causing damage to the company. At least a part of the evidence will be common.

Duplication of evidence could be avoided if the two actions are tried together. C If a decree is granted to the bank on the basis of its accounts, and the damages, if any, is decreed in favour of the company, a set off could be directed and an ultimate order or decree passed in favour of the bank or the company. In such a situation, we are of the view that this is a fit case where the two actions should be ordered to be tried together.

13. In this view, we are satisfied that the 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 Debt Recovery Tribunal, Patna. They have not considered the question whether it will be fit and proper to order a joint trial

of the two actions. We find that it is not only fit and proper but also just and E necessary to have the two causes tried together. Hence, we allow this appeal and setting aside the order of the High Court and that of the trial Court, transfer Money Suit No. 168 of 2001 from the file of Subordinate Judge -I, Patna to the Debt Recovery Tribunal, Patna for being treated as a counterclaim by way of a cross suit and for being jointly tried and disposed of with OA No. 18 of 2002 pending on its file.

14. In the circumstances, we direct the parties to suffer their respective costs.

V.S.S.

Appeal allowed.