[2014] 13 S.C.R. 1202

BANK OF RAJASTHAN LTD.

VCK SHARES & STOCK BROKING SERVICES LTD.

(Civil Appeal Nos. 8972-8973 of 2014)

SEPTEMBER 17, 2014

[RANJAN GOGOi AND S. A. BOBDE, JJ.]

Recovery of Debts due to Banks and Financial Institutions Act, 1993: s. 19- Jurisdiction of civil court to hear C and try a counterclaim ora set off filed by debtor- In view of difference of opinion between the several benches of Supreme Court on the issue, the following questions of law referred to larger bench - Whether an independent suit filed by a borrower against a Bank or Financial Institution, which D has applied for recovery of its loan against the plaintiff under the ROB Act, is liable to be transferred and tried along with. the application under the ROB Act by the ORT; If yes, can such transfer be ordered by a court only with the consent of the plaintiff; Is the jurisdiction of a civil court to try a suit filed E by a borrower against a Bank or Financial Institution ousted by virtue of the scheme of the ROB Act in relation to proceedings for recovery of debt by a Bank or Financial Institution -Reference to tar[Jer bench.

F .The question which arose for consideration in the instant appeals was whether having regard to the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (ROB Act), a suit containing a "counter-claim" or claiming a "set-off" filed by a debtor G can be heard and tried before the Debt Recovery Tribunal (ORT) under the ROB Act or must be tried by a Civil Court alone. ·

Referring the matter to larger bench, the Court

H 4202

BROKING SERVICES LTD.

HELD: 1. In Indian Bank vs. ABS Marine Products A (P) Ltd., a Bench of two Judges of this Court took the view that the jurisdiction of the Civil Courts is not barred in regard to any suit filed by a borrower against a bank for any relief. That jurisdiction is barred only in regard to applications by a bank or a financial institution for B recovery of its debt. The Bench also held that though a 'counter-claim' and 'set off' may be made under subsections (6) and (11) of Section 19 of the ROB Act, no jurisdiction is conferred on the Tribunal to try independent suits or proceedings initiated by C

borrowers. Referring to the earlier Judgment in Abhijit's case, the Bench observed that an independent suit can be deemed to be a counter-claim and can be transferred to the Tribunal only if the following conditions are satisfied: The subject-matter of the bank's suit, and the D suit of the defendant against the bank, is inextricably co.nnected in the sense that the decision in one would affect the decision in the other. Both parties (the plaintiff in the suit against the bank and the bank) should agree for the independent suit being considered as a counter- E claim in the bank's application before the Tribunal, so that both can be heard and disposed of by the Tribunal. [Para 8, 9][1208-F-G; 1209-A-C]

2. The two-Judge Bench in Nahar's case observed that in Indian Bank's case, the Court had come to the F conclusion that the respective claims of the parties were not inextricably connected and therefore the transfer of a suit to the Tribunal can only be on the basis of the consent of the parties. It further directed that the Bench in Ranjan Chemicals case was bound by the decision in G the Indian Bank Case being a co-ordinate Bench, and therefore, could not have taken a contrary view by holding that the Court can consider a suit to be a claim of 'set-off' and transferred to the Tribunal for being tried

A jointly with the application filed by the bank as a crosssuit and that too without the consent of parties. Though having so observed, the Bench apparently did not consider it appropriate to have the matter decided by a larger Bench. It was held that if all suits whether B inextricably connected with the application filed before the ORT by the Bank are transferred, the same would amount to ousting the jurisdiction of the civil court indirectly and consent of the plaintiff is necessary for transferring the suits. This finding was in consonance c with the observation of the Court in the Indian Bank's Case but was at variance with the Judgment in Ranjan Chemicals case. [Paras 8, 9, 11 and 12)(1210-B-C;

1210-0-F; 1211-A-C]

3. It was contended for the respondent that the D matter did not call for reference as there was complete consistency in the views of the Court in Indian Bank case and Nahar case since both the judgments took the view that the jurisdiction of the civil courts was not ousted and a suit filed before the civil court can be transferred E to the ORT only with the consent of both parties and Nahar's case was the last word on the point and it must be taken to lay down the correct law, and in any case the law which is binding. There is a difference of opinion between several Benches of this Courton the issue. This F is likely to create a doubt as to the true position in law and, therefore, it is held appropriate to refer the following questions of law to a larger Bench: (a) Whether an independent suit filed by a borrower against a Bank or Financial Institution, which has applied for recovery of G its loan against the plaintiff under the ROB Act, is liable to be transferred and tried long with the application under the ROB Act by the ORT? (b) If the answer is in the affirmative, can such transfer be ordered by a court only with the consent of the plaintiff? (c) Is the H jurisdiction of a Civil Court to try a suit filed by a borrower

BROKING SERVICES LTD.

against a Bank or Financial Institution ousted by virtue A of the scheme of the ROB Act in relation to proceedings for recovery of debt by a Bank or Financial Institution? [Paras 14, 15][1212-E-G; 1213-A-E]

United Bank of India, Calcutta v. Abhijit Tea Co.

Pvt.Ltd. and Ors. (2007) 7 SCC 357; Indian Bank

v. ABS Marine Products (P) Ltd. 2006 (5) SCC 72 : 2006 (1) Suppl. SCR 52 ; State Bank of India v.

Ranjan Chemicals Ltd. and Anr. 2007 (1) SCC 97 : 2006 (7) Suppl. SCR 145 ; Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation 2009 (8) SCC 646 ; JIT Ram

v. State of Haryana (1981) 1 SCC 11; Union of India v. Godfrey Phillips India Ltd. (1985) 4 SCC 369 - referred to.

3. At this stage, the counsel for the appellant prayed for stay of further proceedings in the two suits pending between the parties before the High Court. The suits are apparently pending since the years 1998 & 1999 and due

to various proceedings, which have been taken out by E the parties, have virtually remained stationary. There is virtually no progress in the suits and much progress is not likely to take place for a long time. Moreover, the respondent - plaintiff has made a monetary claim, the satisfaction of which can be appropriately ensured by F any order which may be passed in the proceedings.

There is no reason to direct stay of the suits. The interim relief prayed for the same is rejected. [Para 16]

(1213-E-H; 1214-A]

CASE LAW REFERENCE G

2006 (1) Suppl. SCR 52 referred to Para 8

2000 (3) Suppl. SCR 153 referred to Para 9

2006 (7) Suppl. SCR 145 referred to Para 10

2009 (8) sec 646 referred to Para 11 H

A 2006 (5) sec 12

(1981) 1 sec 11

(1985) 4 sec 369

referred to

referred to

referred to

Para 11

Para 13

Para 13

CIVILAPPELLATE JURISDICTION: Civil Appeal No(s).

B 8972-8973 of 2014.

From the Judgment and Order dated 19-04-2011 of a Division Bench of the High Court at Calcutta in APO Nos. 488 of 2002 and 489 of 2002. c Shyam Divan, Sr. Adv., Ms. Suruchi Suri, Chanchal

Kumar Ganguli, Advs. for the Appellant.

Jaideep Gupta, Sr.Adv., Nirmalya Mohan Bhattacharya, Ms. Titash Sen, Abhinav Mukerji, Advs.forthe Respondents.

The Judgment of the Court was delivered by

S. A. BOBDE, J.

1. Leave granted.

2. In these appeals, the question before us is whether E having regard to the Recovery of Debts due to Banks and Financial Institutions Act, 1993 [hereinafter referred to as 'ROB Act'], a suit containing a "counter-claim" or claiming a "set-off' filed by a debtor can be heard and tried before the Debt Recovery Tribunal (hereinafter referred to as 'ORT') under the F RDB Act or must be tried by a Civil Court alone.

3. The appellant- Bank filed an application for recovery under Section 19 of the ROB Act before the DRT for a recovery certificate against the respondent for Rs. 8,62,41,973.36/-.

Though the respondent entered appearance before the DRT, G it filed Civil Suit No. 77of1998 before the Calcutta High Court against the appellant claiming a decree for sale of pledged shares and payment of sale proceeds to the respondent. After the appellant sold pledged shares for a total sum of Rs. 5,77,68,000/-, the respondent filed Civil Suit No. 129of1999 H praying inter alia for following reliefs:

i) A declaration that sale of shares of BFL Software Ltd. A was void;

ii) A decree for return of pledged shares in respect of overdraft facility account and in default to pay Rs. 48.95 crores; and

iii) A declaration that no sum was payable by the respondentto the appellant in respect of Term Loan dated

27. 07. 1994 and overdraftAccount dated 19.09. 1995 and that the appellant is not entitled to a decree for a sum of

Rs. 8,62,41,973.36 from the respondent.

4. The appellant filed an application in C.S. No. 129 of 1999 for rejecting the suit on the ground that the High Court did not have jurisdiction since the subject matte~ was within

the exclusive jurisdiction of the DRT. The Single Judge allowed that application and directed that the suits be taken off from D the file of the High Court. The Division Bench stayed operation of the Order of the Single Judge.

5. Since the ORT held that the appellant's claim for Rs. 6,04, 17, 777.36 was satisfied, it directed inter alia to return the title deeds of the pledged shares. On the counter claim, E the ORT held that the respondent was entitled to recover Rs. 6,88, 187.49 from the appellant within 4 weeks.

6. The appellant's petition under Article 227 of the Constitution before the High Court of Calcutta challenging the F

ORT order dismissing the appellant's appeal against the ORT order was dismissed in default. The Division Bench allowed the appeal filed by the respondent against the order of the Single Judge taking off the suits from the file of the High Court.

This Judgment of the High Court is questioned in these appeals. G

7. In United Bank of India, Calcutta vs. Abhijit Tea Co. Pvt. Ltd. and Others1, a two-Judge Bench of this Court took the view that as per the legislative scheme of the ROB Act, jurisdiction was indeed conferred upon the Tribunal to try

1(2000) 7 sec 357 H

A "counter-claim" and "set-off" by Section 19 of the RDBAct and that all such counter-claims and set-offs, including a cross suit filed independently should be tried by a Debt Recovery Tribunal.

The Court was considering a case where the borrowercompany had filed an application that suit filed by the Bank B should remain on the Original Side of the Calcutta High Court.

That application was allowed by the Single Judge. Against this order the Bank had preferred the Special Leave Petition.

Though the ROB Act had not come into force when the suit was filed by the Bank, the debtor-company had filed the c application and resisted the transfer of the suit. This Court took the view that the above pleas raised by the respondentcompany are all inextricably connected with the amount claimed by the Bank and therefore directed transfer of the suit.

8. In a later decision in Indian Bank vs. ABS Marine D Produets (P) Ltd.2 , a Bench of two Judges of this Court took the view that the jurisdiction of the Civil Courts is not barred in regard to any suit filed by a borrower against a bank for any relief. That jurisdiction is barred only in regard to applications by a bank or a financial institution for recovery of its debt. The E Bench also held that though a 'counter-claim' and 'set off' may be made under sub-sections (6) and (11) of Section 19 of the

ORB Act, no jurisdiction is conferred on the Tribunal to try independent suits or proceedings initiated by borrowers.

9. It held that what is provided and permitted is a cross-action by the respondent in a pending application filed by a bank. It was held that the borrower had the option to file a separate suit before the Civil Court and the counter-claim before the Tribunal was not the only remedy. Referring to the G earlier Judgment in Abhijit's3 case (supra), the Bench observed that an independent suit can be deemed to be a counter-claim and can be transferred to the Tribunal only if the following conditions are satisfied:

2(2006) s sec 72 H 3(2000J 7 sec 357

(i) The subject-matter of the bank's suit, and the suit of A the defendant against the bank, is inextricably connected in the sense that the decision in one would affect the decision in the other.

(ii) Both parties (the plaintiff in the suit against the bank and the bank) should agree for the independent suit being B considered as a counter-claim in the bank's application before the Tribunal, so that both can be heard and disposed of by the Tribunal.

10. In State Bank of India vs. Ranjan Chemicals Ltd. c and Another", a two-Judge Bench considered the matter from the perspective of whether it was just and proper to order a joint trial of two cases i.e. one before the ORT and another before the Civil Court. The two-Judge Bench referred to Abhijit's!i. case (supra) and observed that though a borrower- 0 company always had an option to sue the bank in a civil court, it does not in any manner affect the power of the Court to order a joint trial of the applications. There was no warrant of curtailing the power of the Court to order a joint trial by introducing a restriction that it can be done only if there was E consent by both sides, though a claim in an independent suit could be considered as a claim for set-off and a counter-claim within the meaning of Section"19 of the ROB Act. In such an eventuality the only question was whether in the interest of justice, convenience of parties and avoidance of multiplicity, F the suit should be transferred to the ORT to be tried as a crosssuit. Thus the'Bench leaving Ranjan Chemicals Case held in effect that the consent of the parties for transfer of the suit to the ORT was not necessary, as held in the Indian Bank Case (supra).

11. In a subsequent decision of this Court by another two- J udge Bench in Nahar Industrial Enterprises Limited vs.

'(2007) 1 sec 97 5(2000) 7 sec 357

A Hong Kong and Shanghai Banking Corporation6, the issue cropped up again. The Court considered the three authorities referred to above i.e. United Bank of India, Calcutta vs.

Abhijit Tea Co. Pvt. Ltd. and Others7; Indian Bank vs. ABS Marine Products (P) .Ltd.6 and State Bank of India vs.

B Ranjan Chemicals Ltd. and Anothe~. The two-Judge Bench in this case i.e. Nahar's case (supra) observed that in the .Indian Bank's case, the Court had come to the conclusion

that the respective claims of the parties were not inextricably connected and therefore the transfer of a suit to the Tribunal c can only be on the basis of the consent of the partles. The Bench in Indian Bank case had held that the claims can be transferred only if the following two conditions exists:

(i) Inextricable connection of the subject matter of the two proceedings; and

(ii) The agreement of both parties that the suit should be transferred to the Tribunal.

12. It further directed that the Bench in Ranjan Chemicals10 case was bound by the decision in the Indian E Bank Case11 being a co-ordinate Bench, and therefore, could not have taken a contrary view by holding that the Court can consider a suit to be a claim of 'set-off' and transferred to the Tribunal for being tried jointl{with the application filed by the bank as a cross-suit and that too without the consent of parties.

F The Bench, vide para 60, held as under:

"We are in agreement with all the above observations of this Court. Ranjan Chemica/s 12 was bound by the decision rendered in Indian Bank13 being a coordinate Bench. It could not have taken a contrary view."

6 (2009) a sec 646 1(2000) 1 sec 357 8(2006) 5 sec 12

9(2007) 1 sec 97 H 10(2001) 1 sec 97

Though having so observed, the Bench apparently did A not consider it appropriate to have the matter decided by a larger Bench. It was held that if all suits whether inextricably connected with the application filed before the ORT by the Bank are transferred, the same would amount to ousting the jurisdiction of the civil court indirectly and consent ofthe plaintiff B is necessary for transferring the suits. This finding is in consonance with the observation of the Court in the Indian Bank's Case14 but is at variance with the Judgment in Ranjan Chemicals15 case. According to the last judgment i.e. Nahar's case16, the Bench deciding Ranjan Chemicals case could c not have taken a contrary view but was bound by the decision . rendered in the Indian Bank case. Many other aspects of . variance and consonance Have been pointed out to us but we have not dealt with them in view of the one aspect alone, which

hs been highlighted.

13. Mr. Shyam Divan, learned senior counsel appearing for the appellant relied upon the decision of this Court in Jit Ram v. State of Haryana17 and Union of India v. Godfrey Philips India Ltd. 16 , where in para§raph 12, this Court observed as follows: E

", .......... We find it difficultto understand how a Bench of two Judges in Jit Ram case could possibly overturn . or disagree with what was said by another Bench of two Judges in Motilal Sugar Mills case19• If the Bench of two F

udges in Jit Ram case found themselves unable to agree with the law laid down in Moti/al Sugar Mills case, . they could have referred Jit Ram case to a larger Bench,

11(2006) 5sec12 12(2001) 1 sec 97 13(2006) 5 sec 72 14(2006) 5 sec 12 15(2007) 1 sec 97 16(2009) a sec 646 11(1981) 1sec11 10(1985) 4 sec 369 19(1979) 2 sec 409

A but we do not think it was right on their part to express their disagreement with the enunciation of the law by a coordinate Bench of the same Court in Motilal Sugar Mills. We have carefully considered both the decisions in Motilal Sugar Mills case and Jit Ram case and we B are clearly of the view that what has been laid down in Motilal Sugar Mills case represents the correct law in regard to the doctrine of promissory estoppel and we express our disagreement with the observations in Jit Ram case to the extent that they conflict with the statement c of the law in Motilal Sugar Mills case and introduce reservations cutting down the full width and amplitude of the propositions of law laid down in that case."

Sh ri Divan submitted that the Bench deciding Ranjan Chemical's Case20 had decided at variance with the Judgment D in Indian Bank case21 . They were Benches of coordinate strength and the latter ought to have referred the matter to a larger Bench instead of taking a contrary view. The learned senior counsel also pointed out that this, in fact is the exact observation of the Ben.ch in Nahar's case22 which did not also E consider it appropriate to refer the is.sues to a larger Bench.

14. Mr. Jaideep Gupta, learned senior counsel appearing for the respondent submitted that the matter does not call for a ..

reference as there is complete consistency in the views of the F Court in Indian Bank case (supra) and Nahar case (supra) since both the judgments have taken the view that the jurisdiction of the civil courts has not been oustedand a suit filed before the civil court can be transferred to the ORT only with the consent of both parties. According to the learned G counsel, Nahar's case (supra) is the last word on the point and it must be taken to lay down the correct law, and in any case the law which is binding.

20(2007) 1 sec 97

21(2006) 5 sec 72 H 22(2009) a sec 646

15. It is not possible to accede to the submissions made A on behalf of the respondent as pointed out above. There is a difference of opinion between several Benches of this Court on the issue. This is likely to create a doubt as to the true position in law, hence we consider it appropriate to refer the following questions of law to a larger Bench: B

(a) Whether an independent suit filed by a borrower against a Bank or Financial Institution, which has applied for recovery of its loan against the plaintiff under the ORB Act, is liable to be transferred and tried along with the application under the ROB Act C by the ORT?

(b) If the answer is in the affirmative, can such transfer be ordered by a court only with the consent of the plaintiff? o

(c) Is the jurisdiction of a Civil Court to try a suit filed by a borrower against a Bank or Financial Institution ousted by virtue of the scheme of the ROB Act in relation to proceedings for recovery of debt by a Bank or Financial Institution?

16. At this stage, ShriDiwan, learned senior counsel for the appellant prayed' for stay of further proceedings in the two suits being Civil Suit No. 77 of 1998 and Civil Suit No. 129 of 1999, both titled "VCK Shares & Stock Broking Services Ltd.

Vs. Bank of Rajasthan" pending before the High Court of F Calcutta. The suits are apparently pending since the years 1998 & 1999 and due to various proceedings, which have been taken out by the parties, have virtually remained stationary. We are informed that the suits are at the stage of amendment of the pleadings, which have not been carried out. Suffice jt to G say that there is virtually no progress in the suits and much progress is not likely to take place for a long time. Moreover, the respondent - plaintiff has made a monetary claim, the satisfaction of which can be appropriately ensured by any order H

A which may be passed in the proceedings. We thus see no reason to direct stay of the suits. The interim relief prayed for the same is rejected.

17. In view of above, the Registry is directed to place the papers before the.Hon'ble Chief Justice of India for taking B appropriate action in accordance with law.

Devika Gujral Matter referred to larger bench.