NAHAR INDUSTRIAL ENTERPRISES LTD. v. HONG KONG & SHANGHAI BANKING CORPORATION

Citation: [2009] 12 S.C.R. 54

Court: Supreme Court of India

Bench: S.B. SINHA, A.K. GANGULY

Case summary

NAHAR INDUSTRIAL ENTERPRISES LTD. v. HONG KONG & SHANGHAI BANKING CORPORATION.pdf

Judgment text

[2009] 12 S. C. R. 54 NAHAR INDUSTRIAL ENTERPRISES LTD. v. ~ HONG KONG & SHANGHAI BANKING CORPORATION (Civil Appeal No. 4796 of 2009) JULY 29, 2009 (S. 8. SINHA AND ASOK KUMAR GANGULY, JJ. ] RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL INSTITUTIONS ACT, 1993/CODE OF CIVIL PROCEDURE, 1908: SECTIONS 17, 18, 19, 22, 25, 31/SECTIONS 3, 4, 5, 9, 16, 17, 18, 19, 20, 96, 100, 151, 195 AND ORDER XL/ RULES 1, 5. Suit - Whether High Court/Supreme Court has the power to transfer a suit pending in Civil Court situated in one state to a Debt Recovery Tribunal.

T Held: The very fact that a legal fiction has been created and the Tribunal or the Appellate Tribunal deemed to be a Civil Court for purposes of Section 195 and Chapter XXVI of CPC, itself suggests that Parliament did not intend to take away the jurisdiction of Civil Court - The legal fiction has a limited application - Its scope and ambit cannot be extended - While exercising the power of transfer, the High Court and Supreme Court would be curtailing the right of a suitor indirectly which could not be done directly - It clearly establishes that Parliamentary intent that only civil suits are subject matter of inter state transfer from one Civil Court to another Civil Court- If such a power is exercised, all the rights of the plaintiff remain intact, no right taken away and no right diluted - Where a matter has been expressly provided for in the body of the Code, ordinarily inherent power shall not be· resorted to - If a suit is to be transferred from a Civil Court to KONG & SHANGHAI BANKING CORPN.

a Tribunal, the debtor would lose some rights including the right to prefer an appeal before a higher court in terms of Section 96 to 100 CPC - There exists no express power of transfer under the ORT Act which would be applicable to the facts of the present case - Application before the Tribunal would lie only at the instance of the bank or the financial institution for the recovery of its debt - Had the jurisdiction of Civil Courts been barred in respect of counter claim also, the statute would have said so and Sections 17 and 18 would have been amended to introduce the provision of counter claim - .... Banks and financial institutions cannot approach the Tribunal unless the debt has become due - In such a contingency civil suit will lie - Debtor may file pre-emptive suits and obtain orders of injunction but that cannot be a ground to completely oust the jurisdiction of the Civil Court - Constitution of India, Articles 226, 227.

CONSTITUTION OF /NOIA, 1950: Articles 139A, 142 - Power under - Wide and extensive - May be resorted to do complete justice - However, conditions could be imposed - But the present case not fit case to exercise jurisdiction under Article 142. In the Appeal and Transfer Petitions, the question involved was whether the High Court/Supreme Court has the power to transfer a suit pending in Civil Court situated in one State to a Debt Recovery Tribunal situated in another State. Allowing the Civil Appeal and dismissing the Transfer Petitions, the Court HELD: 1. Indisputably, however, after the amendments were carried out vide Amending Act 1 of 2000 and Amending Act 30 of 2004, the Debts Recovery Tribunal would have jurisdiction to determine the claims of set off and counter-claims.

It may be that the bank or the financial institution in terms of the provisions of subsection (9) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, despite such counter-claim being treated to be a cross-suits would be entitled to raise a contention that the same should not be determined by the Tribunal. In the event such a contention has not been raised, the Tribunal will have jurisdiction to pass a final judgment both on the claim of the bank or the financial institution on the one hand and the cross-objections of the borrower on the ... other. [Para 9] [94-8-D] Cofex Exports Ltd. vs. Canara Bank AIR 1997 Delhi 355; Delhi High Court Bar Assn. v. Union of India, AIR 1995 Del 325 and Union of India v. Delhi High Court Bar Assn. (2002) 4 sec 275, referred to. 2. 1. Whereas in Indian Bank it was held that the transfer can be effected with consent, the said question t- ,. was ignored in Ranjan Chemicals.

Whereas the question of jurisdiction of the civil court vis-a-vis the Tribunal was uppermost in the mind of the Bench in Indian Bank, no significance was attached thereto in Ranjan Chemicals. It proceeded on the basis that the joint trial would be permissible if some of the issues are common and if some of the evidence to be let in is also common ~ especially when the two actions arise out of the same transactions or series of transactions wherefor several sub-sections of Section 19 of the Act had not been adverted to. In Ranjan Chemicals the Court posed a wrong question unto itself, namely the jurisdiction of the Tribunal vis-a-vis exclusion of jurisdiction of the civil court. Indian Bank was decided upon taking into consideration all provisions of the Act as also the Code. It entered into the niceties of the question. It referred to all the binding precedents. It was a well considered decision.

Ranjan Chemicals, therefore, was building upon the decision in KONG & SHANGHAI BANKING CORPN. Indian Bank being a coordinate Bench. It could not have -~ taken a contrary view. It was not even held t'iat Indian Bank was wrong far less plainly wrong. [Para 12] [103-8- F] 2. 2. In Ranjan Chemicals, the Court having not posed unto itself the aforementioned question, should have considered the decision of a coordinate bench in Indian Bank in that perspective. It must furthermore be noticed that Indian Bank was clarifying Abhijit Tea. Conditions laid J. down in paragraph 25 of Indian Bank must also, therefore, be read in that context as otherwise, the same would lead to misreading and misinterpreting the judgment. [Para 12] [104-C-E] Indian Bank v. ABS Marine Products (P) Ltd. (2006) 5 SCC 72; State Bank of India v. Ranjan Chemicals Ltd. and another, (2007) 1 SCC 97; United Bank of India, Calcutta v. --f· Abhijit Tea Co. Pvt. Ltd. & Ors. (2000) 7 SCC 357; Union of India v.

Raghubir Singh, (1989) 2 SCC 754; Union of India ' ' v. Godfrey Philips India Ltd. , (1985) 4 SCC 369; Sub- Committee of Judicial Accountability v. Union of India, (1992) 4 SCC 97 and Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, referred to. ,. 3. 1. The provisions for transfer under the ORT Act especially Section 31 which states that only suits or proceeding pending before the court immediately before the establishment of the Tribunal under the Act shall stand transferred to the Tribunal. Section 31 admittedly does not apply to the facts and circumstances of the present case. There is no dispute in this behalf. Moreover, it is beyond any dispute that there exists no other provision for transfer under the ORT Act from a Court to Tribunal. The respondents, therefore, do not and cannot rely on any of the provisions of the ORT Act for contending that the Court had any other power to direct transfer. [Para 13] [106-8-0] 3. 2.

There exists no express power of transfer under the ORT Act which would be applicable to the facts of the present case. The provisions of the Act and the entire statutory scheme being well-defined, no further elaboration is required. [Para 13] [107-A-8] Raghunath Rai Bareja & Anr v. Punjab National Bank & Anr, (2007) 2 SCC 230, referred to. 4. 1. Civil court is a body established by law for administration of justice. Different kinds of law, however exists, constituting different kinds of courts. Which courts would come within the definition of the civil court have been laid down under the Code of Civil Procedure itself. Civil Courts contemplated under Section 9 of Code of Civil Procedure find mention in Sections 4 and 5 thereof. Some suits may lie before the Revenue Court, some suits may lie before the Presidency Small Causes Courts. The Code of Civil Procedure itself lays down that the Revenue Courts would not be courts subordinate to the High Court. [Para 15] [109-G-H; 110-A-B] 4. 2.

Civil Courts are constituted under statutes, like Bengal, Agra and Assam Civil Courts Act, 1887. Pecuniary and territorial jurisdiction of the civil courts are ~ fixed in terms thereof. Jurisdiction to determine subject matter of suit, however, emanates from Section 9 of the Code. [Para 15] [110-C-D] 4. 3. Be that as it may, the word 'civil court' vis-'-vis a court must be construed having regard to the text and context of the statute. [Para 15] [111-D] State of M. P. v. Anshuman Shukla, (2008) 7 SCC 487; Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. 1950 SCR 459; P. Sarathy v. State Bank of India (2000) 5 SCC 355 and State of Madhya Pradesh and another v. Anushuman KONG & SHANGHAI BANKING CORPN. Shukla (2008) 7 SCC 487, referred to. 5. 1. A provision in the Code which is benev0lent in character and sub serve the social justice doctrine in a situation of that nature has been applied, but the same, by itself would not make a Tribunal a civil court.

No 8 reason has been assigned as to why a Tribunal has been considered to be a civil court for the purpose of Section 25 of the Act. The court appears to have proceeded on the basis that an appeal before the High Court shall lie in terms of Section 173 of the Motor Vehicles Act, 1988 from an Award passed by the Tribunal, thus showing that it is a part of the hierarchy of the civil court. Motor Accident Claims Tribunal, thus, is a court subordinate to the High Court. No appeal against the judgment of the Debt Recovery Tribunal lies before the High Court unlike under the Motor Vehicles Act, 1988. The two Tribunals are differently structured and have been established to serve totally different purposes. If the Tribunal was to be treated to be a civil court, the debtor or even a third party must have an independent right to approach it without having to wait for the Bank or Financial Institution to approach it first.

The continuance of its counter-claim is entirely dependant on the continuance of the applications filed by the Bank. -Before it no declarato"ry relief can be sought for by the debtor. It is true that claim for damages would be maintainable but the same have been provided by way of extending the right of counter-claim. Debt Recovery Tribunal cannot pass a decree. It can issue only recovery certificates. The power of the Tribunal to grant interim order is attenuated with circumspection. [Para 16) [115- C-H; 116-A-B] 5. 2. Concededly in the proceeding before the Debt Recovery Tribunal detailed examination; crossexaminations, provisions of the Evidence Act as also application of other provisions, of the Code of Civil Procedure like interrogatories, discoveries of documents ,. and admission need not be gone into. Taking recourse to such proceedings would be an exception.

Entire focus of the proceedings before the Debt Recovery Tribunal centers round the legally recoverable dues of the bank. They have their own hierarchy. They necessarily are subordinate to the High Court. The appeals from their judgment will lie before a superior court. The High Court is entitled to exercise its power of revision as also .. superintendence over the said courts. [Para 16] [116-8- E] 5. 3. Only because a court or a tribunal is entitled to determine an issue involving civil nature, the same by itself would not lead to the conclusion that it is a civil court. For the said purpose, as noticed hereinbefore, a legal fiction is required to be created before it would have all attributes of a civil court. The Tribunal could have been treated to be a civil court provided it could pass a decree and it had all the attributes of a civil court including undertaking of a full-fledged trial in terms of the provisions of the Code of Civil Procedure and/or the Evidence Act.

[Para 16) [116-F-H; 117-A] 5. 4. It is now trite law that jurisdiction of a court must be determined having regard to the purpose and object of the Act. If the Parliament, keeping in view the purpose and object thereof thought it fit to create separate tribunal so as to enable the banks and the financial institutions to recover the debts expeditiously wherefor the provisions contained in the Code of Civil Procedure as also the Evidence Act need not necessarily be resorted to, by taking recourse to the doctrine of purposive construction, another jurisdiction cannot be conferred upon it so as to enable this Court to transfer the case from the civil court to a tribunal. [Para 16) [117-A-C] H· 5. 5. The High Court ordinarily can be approached in KONG & SHANGHAI BANKING CORPN. exercise of its writ jurisdiction under Article 226 or its ,( jurisdiction under Article 227 of the Constitution of India.

The High Court exercises such jurisdiction not only over the courts but also over the Tribunals. Appellate tribunals have been constituted for determining the appeals from judgments and orders of the Tribunal. The principles of purposive construction, therefore, are not attracted in the instant case. Had the Parliament intended to make the Tribunals civil courts, a legal fiction could have been raised. There are statutes like the Andhra Pradesh Land ,. ( Grabbing Act where such a legal fiction has been raised. [Para 16] [117-H; 118-A-B] 5. 6. Whereas the doctrine of purposive construction is a salutary principle, the same cannot be extended to a case which would lead to an anomaly. It can inter alia be resorted to only when difficulty or doubt arises on account of ambiguity. It is to be preferred when object and purpose of the Act is required to be promoted. [Para 16] ' [118-C-D] Bhagwati Devi v. Mis IS Goel, 1983 [ACJ 123); Kususm /gnats & Alloys v.

Punjab National Bank, (2005) 12 SCC 358; Rajasthan State Road Transport v. Poonam Pahwa, (1997) 6 SCC 100; Dolly Kantibhai Patel v. Batu Tukaram, (2001) .. ,. , 9 SCC 723; Mohan Singh v. Saheb Singh, (2000) 9 SCC . 403; Kah/on v. K Paramasivam, (2004) 13 SCC 564 and Ml ~ ' s Jai Shiva Cement v. Allahabad Bank, (JT) 2000 (8) SC 323, distinguished. New India Assurance Company Ltd. v Nusli Neville Wadia and Another (2008) 3 SCC 279; Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Another (2007) 6 SCC 528; South Eastern Coalfields Ltd. v. CCET, MP (2006) 6 SCC 1 340; Uco Bank v. Rajinder Lal Capoor (2008) 5 SCC 257 and Sri Ram Saha v. State of West B. engal and Ors. JT 2004 (9) f'S 136 : (2004) 11 SCC 497, held inapplicable. \ Parmananda Pegu v. State of Assam, (2004) 7 SCC 779; Dataware Design Labs. v. State Bank of India, [2005] 12 Comp. Cas. 176 (Ker) at 184 and V. Laxminarasamma v. A. Yadaiah (Dead) and Ors. , 2009 (3) SCALE 685, referred to. United States v.

Detroit Timber & Lumber Co. , 200 U. S. 321, 337, referred to. 6. The Tribunal was constituted with a specific purpose as is evident from its statement of objects. The preamble of the Act also is a pointer to that too. It has a limited jurisdiction. Under the Act, as it originally stood, did not even have any power to entertain a claim of set off or counter-claim. No independent proceedings can be initiated before it by a debtor. A debtor under the common law of contract as also in terms of the loan agreement may have an independent right. No forum has been created for endorsement of that right. Jurisdiction of a civil court as is barred only in respect of the matters which strictly come within the purview of Section 17 thereof and not beyond the same. The Civil Court, therefore, will continue to have jurisdiction. [Para 17] ... [119-E-G] Industrial Credit and Investment Corpn. of India Ltd. v. • Grapco Industries Ltd. , (1999) 4 SCC 710, relied on. ~ 7.

The Court would be subordinate to High Court in terms of the provisions of the Code only in the event it comes within the purview of the hierarchy of the court as contained in Section 3 of the Act. This, however, does not mean that even when the Presiding Judge or the Presiding Officer of the Court exercises power conferred --t upon it under a statute still then it would not be a court subordinate to the High Court. A court while adjudicating a dispute under the Employees State Insurance Act or a Reference Court under the Land Acquisition Act, Election KONG & SHANGHAI BANKING CORPN. Tribunal or a Tribunal acting as a Motor Vehicles Accident 1 Claim Tribunal, while exercising revisional jurisdiction from an order passed by the Executive Magistrate under the Code or exercising an appellate power under special statutes like Municipal Acts would still be a court subordinate to the High Court.

However, for the aforementioned purpose the Presiding Officer must be holding a Court which would otherwise come within the purview of the hierarchy of the courts. [Para 18] [121-F- --1 H; 122-A-B] NP Balakrishanan v. P. M. R. Mariyumma, AIR 1997 Kerala 89; Mis. Brooke Bond India Ltd. v. Union of India and others, AIR 2001 AP 526; Oevendra Somabhai Naik v. Mis. Accurate Transheet Pvt. Ltd. AIR 2003 Gujarat 141; State Bank of India v. Madhumita Construction (Pvt. ) Ltd. And others, AIR 2003 Cal 7 and Greater Bombay Coop. Bank Ltd. v. United Yam Tex {P) Ltd. , (2007) 6 SCC 236, referred to. . ,_ 8. 1. The Civil Court indisputably has the jurisdiction to try a suit. If the suit is vexatious or otherwise not maintainable action can be taken in respect thereof in terms of the Code.

But if all suits filed in the Civil Courts, whether inextricably connected with the application filed before the ORT by the banks and financial institutions are i' transferred, the same would amount to ousting the jurisdiction of the Civil Courts indirectly. Suits filed by the debtor may or may not be counter claims to the clairris fifed by banks or financial institutions but for that purpose consent of the plaintiff is necessary. It is furthermore difficult to accept the contentions of the respondents that the statutory provisions contained in section 17 and 18 of the ORT Act have ousted the jurisdiction of the civil ~ court as the said provisions clearly state that the jurisdiction of the civil court is barred in relation only to applications from banks and financial institutions for recovery of debts due to such banks and financial institutions. A civil court is entitled to decide the \. respective claims of the parties in a suit.

It must come within the purview of the hierarchy of courts as indicated in Section 3 of the Code. It will have jurisdiction to determine all disputes of civil nature unless the same is barred expressly by a statute or by necessary implication. The jurisdiction of the civil court would be ousted only in respect of the matters contained in Section 18 which has a direct co-relation with Section 17 thereof, that is to say that the matter must relate to a debt .. _ 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. Had the jurisdiction of the civil courts been barred in respect of counterclaim also, the statute would have said so and Sections 17 and 18 would have been amended to introduce the provision of counterclaim. [Para 19] [125-E-H; 126-A-E] 8. 2. It must be rememl:iered that the jurisdiction of a civil court is plenary in nature.

Unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits. [Para 19] [127-B-C] 8. 3. The Act, although, was enacted for a specific ~ purpose but having regard to the exclusion of jurisdiction expressly provided for in Sections 17 and 18 of the Act, it is difficult to hold that a civil court's jurisdiction is completely ousted. Indisputably the banks and the financial institutions for the purpose of enforcement of their claim for a sum below Rs. 10 lakhs would have to file civil suits before the civil courts. It is only for the claims of the banks and the financial institutions above r the aforementioned sum that they have to approach the Debt Recovery Tribunal. It is also without any cavil that the banks and the financial institutions, keeping in view the provisions of Sections 17 and 18 of the Act, are KONG & SHANGHAI BANKING CORPN. necessarily required to file their claim petitions before the Tribunal.

The converse is not true. Debtors can file their 4 claims of set off or counter-claims only when a claim application is filed and not otherwise. Even in a given situation the banks and/or the financial institutions can ask the Tribunal to pass an appropriate order for getting 8 the claims of set-off or the counter claims, determined by a civil court. The Tribunal is not a high powered tribunal. It is a one man Tribunal. Unlike some Special Acts, as for example Andhra Pradesh Land Grabbing (Prohibition) A Act, 1982 it does not contain a deeming provision that the Tribunal would be deemed to be a civil court. [Para 19] [130-A-E] .. _ 8. 4. The liabilities and rights of the parties have not been created under the Act. Only a new forum has been created. The banks and the financial institutions cannot approach the Tribunal unless the debt has become due. In such a contingency, indisputably a civil suit would lie.

"' There is a possibility that the debtor may file preemptive suits and obtain orders of injunction, but the same alone, by itself cannot be held to be a ground to completely oust the jurisdiction of the civil court in the teeth of Section 9 of the Code. Recourse to the other provisions of the Code will have to be resorted to for redressal of his y individual grievances. It is also difficult to accept the contention that the civil court's jurisdiction is not in consonance with the Act. [Para 19] [130-F-H; 131-A] 8. 5. On the ground of inconsistency in the procedures contained in the two Acts alone, the jurisdiction of the civil court cannot be said to have been ousted. Sub-section (2) of Section 22 deals with { applicability of the provisions of the Code in a limited manner.

Sub-section (3) raises a legal fiction that the proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for all the purposes of Section 196 of the Indian Penal Code, 1860. The very fact that a legal fiction has been created and the Tribunal or the Appellate Tribunal shall be deemed to be a civil court for purposes of Section 195 and Chapter XXVI of the Code of Civil Procedure, 1908, itself suggests that the Parliament did not intend to take away the jurisdiction of the civil court. In any event, the said legal faction has a limited application. Its scope and ambit cannot be extend. ed. The Parliamentary statutes, like the Family Courts Act confer all the powers on Family Courts which >are essential for discharging the functions of Civil Court under the Code of Criminal Procedure. This Court accepts that disposal of a civil suit takes a long time.

But indisputably remedy of summary and speedy trial by itself would not be sufficient to oust the jurisdiction of the civil 0 court. Had the intention of the Parliament been so, it could have expressly said so. Casus omissus, as is well known, cannot be supplied. [Para 19] [131-8; 132-H; 133- _, A-F] Dhulabhai v. State of M. P. , (1968) 3 SCR 662; Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, (2003) 6 SCC 220; Nagri Pracharini Sabha v. Vth Addi. Distt. and Sessions Judge, 1991 Supp (2) SCC 36; Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350; Rajasthan SRTC v. Zakir f Hussain, (2005) 7 SCC 447 and Vijay Kumar Sharma v. State of Kamataka, (1990) 2 SCC 562, referred to. 9. 1. The Code not only contains procedural provisions but also substantive rights ; right of appeal is one of them.

A forum of appeal is determined in terms of the provisions of the Code having regard to the pecuniary jurisdiction of the Court as may be notified by the appropriate Government from time to time. A suitor has the right to maintain a first appeal. A second appeal also is maintainable before a High Court, subject of course to the effect that questions of law must be there for the KONG & SHANGHAI BANKING CORPN. court's consideration. For the said purpose no predeposit is required to be made, as is necessary in terms of the Act, that 75% of the awarded amount is required to be deposited, subject of course, to an order to the contrary, which may be passed by the Debt Recovery Appellate Tribunal. Such a right of conditional appeal, curtails party's right to maintain an appeal as a matter of right. While saying so, this Court is not oblivious of the fact that in terms of Order XLI Rule 1 of the Code, in the event of passing of a money decree the amount is required to be deposited.

The said provision, however, has been held to be directory. Order XLI Rule 1 is required to be read with Order XLi Rule 5 thereof. [Para 20) [135- C-F) 9. 2. A civil suit may also be maintainable before Original Side of the High Court in terms of the statutes under which the High Courts are constituted or in terms of the provisions of the Letters Patent. An intra court ' appeal is available against a decree passed by a Single Judge of a High Court in a suit filed before it. In the event, however, if a civil suit is transferred to the Debt Recovery Tribunal, the plaintiff would be deprived of his right in relation to the procedural mechanism as contained in the Code as also the Evidence Act. His right of appeal would "' also stand curtailed. While exercising the power of transfer, the High Court and this Court would thus be curtailing the right of a suitor indirectly which could not be done directly.

It clearly establishes the Parliamentary intent that only civil suits are subject matter of inter State transfer from one civil court to another civil court. If such a power is exercised, all the rights of the plaintiff remain intact, no right is taken away and no right is diluted. [Para ~ 20) [136-8-E] Colonial Sugar Refining Company v. Irving, (1905) AC 369 (PC); Garikapati Veeraya v. N. Subbiah Chaudhry, -1957 SCR 488; Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. , (2007) 6 SCC 528; Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai & Co. , (2005) 4 SCC 1; Ma/wa Strips Pvt. Ltd. v. Jyoti Limited {2009) 2 SCC 426 and Transmission Corporation of A. P. v. Ch. Prabhakar and Ors.. (2004) 5 SCC 551, referred to. 10. 1. Section 151 of the Code of Civil Procedure does not confer any extraordinary jurisdiction on this Court. It saves the inherent power of all the civil courts, i. e. , from the trial judge to this Court.

Thus, where a matter has expressly been provided for in the body of the Code, ordinarily inherent power shall not be resorted to. The underlying principle of Section 151 of the Code ordinarily would apply where the area is grey. It indisputably confers incidental powers. It confers power on a court to do something which in absence of any provision contrary thereto would lead to advancement of justice and prevent injustice. The power to transfer one case from one court to another or from one tribunal to another ,. having jurisdiction of a different State is an extraordinary jurisdiction. For exercising the said power, this Court has to take into consideration a large number of factors. Such a power is to be exercised if exceptional situation arises and not otherwise. [Para 21) [136-F-H;137-A-B] 10. 2. The Plaintiff furthermore is the dominus litus. He .

, may institute a suit having regard to the provisions contained in Sections 16 to 20 of the Code of Civil Procedure in any civil court within whose jurisdiction inter alia a cause of action arises. If the jurisdiction of the civil court is not barred or if he having regard to common law principle is entitled to maintain an a. ction in two different forums, he may choose one of them. A debtor having regard to the provisions of the ORT Act would not be entitled to maintain an action before the Tribunal. If a suit is to be transferred from a civil court to a tribunal, he wotJld lose some rights including the right to prefer an appeal before a higher court in terms of Sections 96 and NAHAR INDUSTRIAL ~TERPRISES LTD. v. HONG 69 KONG & SHANGH°AI BANKING CORPN. 100 of the Code of Civil Procedure. [Para 21] [139-A-D] 10. 3. This Court is also unable to persuade to hold that the right of transfer of a case being procedural in nature should be construed liberally.

By reason thereof, substantive right of a party cannot be taken away. The 8 rules of procedures are intended to provide justice and not to defeat it. [Para 21] [140-E-F] Padma Sen and Another v. The State of Uttar Pradesh AIR 1961 SC 218; Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hirata/ AIR 1962 SC 527; Rajasthan State Road Transport Corporation and Anr. v. Bal Mukund Bairwa, 2009 (2) SCALE 428; Union of India and Another v. Delhi High Court Bar Association and Others (2002) 4 SCC 275; Mis. Ram Chand and Sons Sugar Mills Private Ltd. v. Kanhaya/al Bhargava and Others AIR 1966 SC 1899; N. T. Veluswami Thevar v. G. Raja Nainar and others [AIR 1959 SC 422; Ml s. Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner (Judicial) !. , Sales Tax, Kanpur Range, Kanpur and another AIR 1968 SC 488; Industrial Investment Bank of India Ltd. v. Marshal's Power & Telecom (I) Ltd. and Another (2007) 1 SCC 106; Durga Hotel Complex v.

Reserve Bank of India and Others (2007) 5 SCC 120 and Durgesh Sharma v. Jayshree, (2008) 9 sec 648, referred to. 11. Indisputably, the power of this Court under Articles 139A and 142 of the Constitution of ln transactions or series of transactions wherefor several subsections of Section 19 of the Act had not been adverted to. In Ranjan Chemicals the Court posed a wrong question unto itself, namely the jurisdiction of the Tribunal vis-a-vis exclusion of jurisdiction of the civil court. Indian Bank was decided upon taking into consideration all provisions of the Act as also the Code. It entered into the niceties of the question. It referred to all the binding precedents. It was a well considered decision. Ranjan Chemicals, therefore, was building upon the decision in Indian Bank being a coordinate Bench. It could not have taken a contrary view. It was not even held that Indian Bank was wrong far less plainly wrong.

Submission of the learned counsel appearing on behalf of the Bank that consent of the parties would not be required in case where the subject matter of the banker's suit as also the suit of the debtor are inextricably connected, would have to be rejected. We do not see any reason why both the conditions laid down in Indian Bank (supra) should be read disjunctively and not conjunctively. The Division Bench used the words "following conditions" which would clearly go to show that both ~ of them are required to be conjunctively read. We are not here concerned with the question whether the civil suit filed by a debtor should be read as a counter-claim for the purpose of exercising jurisdiction under Section 25 of the Code as in effect and substance we are concerned with the jurisdiction of this Court to pass an order of transfer.

If this Court has no jurisdiction, the question of considering the plaint filed by the debtor as a counter-claim in the suit filed by the Bank before the ORT would not arise. In Ranjan Chemicals (supra), therefore, in our opinion, the Court having not posed unto itself the aforementioned question, should have considered the decision of a coordinate bench in Indian Bank (supra) in that perspective. It must furthermore be noticed that Indian Bank (supra) was clarifying Abhijit Tea (supra). Conditions laid down in paragraph 25 of Indian Bank (supra) must also, therefore, be read in that context as ~ otherwise, the same would lead to misreading and misinterpreting the judgment. We may notice some decisions of this court as regards the binding nature of the precedents of a coordinate Bench. ! n Union of India v. Raghubir Singh, [ (1989) 2 SCC 754 ], this Court has held :- "27. [...

] It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. L 28. We are of opinion that a pronouncement of law by ~ Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. " See also Union of India v. Godfrey Philips India Ltd. , [(1985) 4 sec 369] In Sub-Committee of Judicial Accountability v. Union of India, [(1992) 4 SCC 97]. this Court has held :- "5....

Indeed, no co-ordinate bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or ·• matter before another co-ordinate bench. In Central Board of Dawoodi Bohra Community v. State .... ,. . \ of Maharashtra, (2005) 2 SCC 673 this Court has held :- "12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms: . l (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) ... It will be open only for a Bench of coequal • strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before .

J a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. We are in agreement with all the above observations of this court. Ranjan Chemicals was bound by the decision .. rendered in Indian Bank being a coordinate Bench. It could not have taken a contrary view. SECTION 31 OF DRT ISSUE: 8 13. We may at this juncture notice the provisions for transfer under the ORT Act especially Section 31 which states that only suits or proceeding pending before the court immediately before the establishment of the Tribunal under the Act shall stand transferred to the Tribunal. Section 31 admittedly does not apply to the facts and circumstances of the present case. There is no dispute in this behalf. Moreover, it is beyond any dispute that there exists no other provision for transfer under the ORT Act from a Court to Tribunal.

The respondents, 0 therefore, do not and cannot rely on any of the provisions of the ORT Act for contending that the Court had any other power to direct transfer. ~ .... ,.. In Indian Bank (supra) this court noted thus: "15. [... ]There is no provision in the Act for transfer of suits and proceedings, except section 31 which relates to suit/ proceedings by a bank or financial institution for recovery of a debt. It is evident from section 31 that only those cases and proceedings (for recovery of debts due to banks and financial institutions) which were pending before any court immediately before the date of establishment of a tribunal under the Debts Recovery Act stood transferred, to the . tribunal" .. In Raghunath Rai Bareja & Anr. v. Punjab National Bank & Anr, (2007) 2 SCC 230 this court opined: "19. [... ]Apart from section 31, there is no other provision for transferring a suit or other proceedings pending before any other court to tribunal. [...

] NAHAR INDUSTRIAL ENTERPRISES LTD. v. HONG 28. [ ... ] whatever power there are of transfer of proceedings to the tribunal are contained in section 31 of ... the RBD Act, and no transfer is permissible dehors section 31. " Therefore there exists no express power of transfer ~nder the ORT which would be applicable to the facts of the present case. The provisions of the Act and the entire statutory scheme being well-defined, no further elaboration on our part is required . ... POWER IN THE COURT TO TRANSFER CASES UNDER SECTIONS 23, 24, AND 25 OF THE CODE. 14. The power of the High Court to issue a direction for transfer of a suit beyond its territorial jurisdiction in terms of subsection (3) of Section 23 of the Act came up for consideration recently in Durgesh Sharma v. Jayshree (supra]. Noticing the history of the provisions relating to transfer to which we have adverted to heretobefore, it was held: . ~ "46.

Having considered the scheme of the Code as amended from time to time, in our judgment, the law relating to transfer of cases (suits, appeals and other proceedings) is well settled. It is found in Sections 22 to 25 of the Code and those provisions are exhaustive in ... nature. Whereas Sections 22, 24 and 25 deal with power of transfer, Section 23 merely provides forum and specifies the court in which an application for transfer may be made. Section 23 is not a substantive provision vesting power in a particular court to order transfer. ' . 47. In our considered opinion, where several courts having jurisdiction are subordinate to one appellate court, an f application for transfer may be made to such appellate court and the court may transfer a case from one court subordinate to it to another court subordinate to it.

Likewise, where such courts are subordinate to the same ' High Court, an application may be made and action may be taken by the High Court transferring a case from one court subordinate to it to any other court subordinate to that High Court. But where such courts are subordinate to different High Courts. it is only the Supreme Court (this Court) which may pa.... s an order of transfer. In other words, if two courts are subordinate to different High Courts, one High Court has no power, jurisdiction or authority to transfer a case pending in any court subordinate to that High Court to a court subordinate to other High Court. It is only the Supreme Court (this Court) which may order the transfer. " Section 25 of the Code was considered to be containing both substantive as well as procedural law. Section 23, on the other hand was held to be merely a procedural or machinery provision. It was held that no order of transfer can be made 0 thereunder, stating: "...

If the case is covered by Section 25 of the Code, it is only that section which will apply for both the purposes, namely, for the purpose of making application and also for the purpose of effecting transfer. On the contrary, reading of sub-section (3) of Section 23 of the Code in the manner suggested by the learned counsel for the respondent - wife would result in allowing inroad and encroachment on the power of this Court not intended by Parliament Section 23, therefore, in our considered view, must be read subject to Section 25 of the Code. The decisions taking a contrary view do not lay down correct law. We, therefore, overrule them... " . ' WHETHER TRIBUNAL IS A CIVIL COURT 15. The terms "Tribunal", "court" and the "civil court" have been used in the Code differently. All "courts" are "Tribunals" but all "Tribunals" are not "courts". Similarly all "civil courts" are "courts" but all "courts" are not "civil courts.

" It is not much in dispute that the broad distinction between a "court" and a "Tribunal" is whereas the decision of the "court" is final the decision of the "Tribunal" may not be. -+ The "Tribunal", however, which is authorized to take evidence of witnesses would ordinarily be held to be a "court" ' within the meaning of Section 3 of the Evidence Act, 1872. It • includes not only Judges and Magistrates but also persons, except Arbitrators, legally authorized to take evidence. It is an inclusive definition. There may be other forums which would also come within the purview of the said definition. In State of M. P. v. Anshuman Shukla, (2008) 7 SCC 487, this Court while holding certain authorities to be a 'court' within the meaning of the Evidence Act, noted thus:- "19. The definition of "courts" under the Evidence Act is not exhaustive (see Empress v. Ashootosh Chuckerbutty.

Although the said definition is for the purpose of the said Act alone, all authorities must be held to be courts within the meaning of the said provision who are legally authorised to take evidence. (... ] 21. In Brajnandan Sinha v. Jyoti Narain it has been held that any tribunal or authority whose decision is final and binding between . the parties is a court. In the said decision, the Supreme Court, while deciding a case under ~ the Court of Enquiry Act held that a court of enquiry is not a court as its decision is neither final nor binding upon the parties. " The same, however, would not mean that only because a Tribunal has 'all the trappings of a court', it would be a court. {See Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. [1950 SCR 459] Para 7 and 27}. .. _ Civil court is a body established by law for administration of justice. Different kinds of law, however exists, constituting different kinds of courts.

Which courts would come within the definition of the civil court have been laid down under the Code of Civil Procedure itself. Civil Courts contemplated under Section 9 of Code of Civil Procedure find mention in Sections ,... 4 and 5 thereof. Some suits may·lie before the Revenue Court, some suits may lie before the Pr,esidency Small Causes Courts. The Code of Civil Procedure itself lays down that the Revenue Courts would not be courts subordinate to the High Court. We may notice that a learned Single Judge of the Calcutta High Court in State Bank of India (supra) and a Oi-.. 1ision Bench of the Delhi High Court in Cofex Exports Ltd. (supra) have held that the ORT is not a court and it exercises powers of a civil court only in respect of limited matters. Civil Courts are constituted under statutes, like Bengal, Agra and Assam Civil Courts Act, 1887. Pecuniary and teri;itorial jurisdiction of the civil courts are fixed in terms thereof.

J~rtsdiction to determine subject matter of suit, however, emanates from Section 9 of the Code. We would revert to the interpretation of the said provision vis-a-vis the provisions of the Act a little later. In P. Sarathy v. State Bank of India [(2000) 5 SCC 355], · this Court opined that although there exists a distinction between a court and a civil court, but held that a Tribunal which has net merely the trappings of a court but has also the power to give a decision or a judgment which has finality and .. t. authoritativeness will be court within the meaning of Section 14 of the Limitation Act, 1963. In the context of Section 29(2) of the Limitation Act, 1963 the term 'court' is considered to be of wide import. However, there again even for that purpose exists a distinction between a court and the civil court. In P. Sarathy v. State Bank of India, (Supra) this Court has held:- "12.

It will be noticed that Section 14 of the Limitation Act does not speak of a "civil court" but speaks only of a "court". It is not necessary that the court spoken of in Section 14 should be a "civil court". Any authority or tribunal having the trappings of a court would be a "court" within the meaning of this section. 13. ... in order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. " We may, however, notice that in the context of applicability of Section 5 of the Limitation Act in regard to Arbitration - Tribunal which was constituted in terms of a statutory provision has been referred to a three Judge Bench in State of Madhya Pradesh and another v. Anushuman Shukla [ (2008) 7 SCC ... 487 ].

Be that as it may, the word 'civil court' vis-a-vis a court must be construed having regard to the text and cont~~t of the statute. TRANSFER OF CASES 16. Learned Senior Counsel Shri Divan cited before us > certain precedents beginning from Bhagwati Devi v. Mis IS Goel, 1983 [ACJ 123], till Kususm lgnots &Alloys v. Punjab National Bank, [(2005) 12 SCC 358] to bring home the point that this Court has regularly exercised power to transfer cases to and from Tribunals. The Senior Counsel in all cited eight precedents in this behalf. Amongst them are Rajas(han State Road Transport v. Poonam Pahwa, [(1997) 6SCC_100]; Dolly Kantibhai Patel v. Ba/u Tukaram, [(2001) 9 SCC 723]; Mohan ~ Singh v. Saheb Singh, [(2000) 9 SCC 403]; and Kah/on v. K Paramasivam, [(2004) 13 SCC 564] wherein this Court exercised the power under section 25 of the Code to transfer the case from one Motor Vehicles Tribunal to another. Similarly Kusum ! gnats (supra) and Mis Jai Shiva Cement v.

Allahabad Bank, [(JT) 2000 (8) SC 323], are the decisions where the Supreme Court exercised the power under section 25 of the CPC to transfer the case from one ORT to another. These cases relate to transfer from one Tribunal to another Tribunal and not from a civil court to the Tribunal. No legal 8 principle can be culled out therefrom. The Courts therein had not gone into the question whether the Tribunal is a civil court or not. The provisions of the Code of Civil Procedure had not been adverted to. The power of transfer under Section 25 of the Code was assumed sub silento without any discussion. We are in agreement with the submissions of learned senior counsel Dr. Singhvi and Shri Rakesh Dwividi that those decisions are clearly distinguishable on the facts of each case 0 as they relate to transfer from one Tribunal to another and not from a civil court to a Tribunal. It has also been pointed out by Mr. Dwividi that reliance placed by Mr.

Desai on the cases cited by him and referred to herein is misleading as the Head Notes of those cases are misleading. He argues that though the SCC refers to Section 25 of the CPC therein in regard to the power of transfer of the court, however, the text of the judgments is silent in regard thereto. We may hereinafter may make reference to the Head Notes of a few of them. The SCC rlead Note to Kah/on (supra) reads as under: "Civil Procedure Code, 1908 - S. 25 - Motor accidents claim case filed by petitioner in town of place of work due to 100 per cent disablement due to accident, petitioner quitting job and shifting back to home town - transfer of claim case to home town of petitioner, allowed" Similarly, the SCC Head note of Mohan Singh (supra) -- reads: . j "Civil Procedure Code, 1908 - S.

25 - Motor accident claim petition - Transfer of - Petitioner residing in Delhi and most of the evidence related to the case present in Delhi - Amended provision of the statute providing that the claim may be filed where the claimant resides - On facts and circumstances of the case, claim petition pending before Motor Accident Claims Tribunal, Muzaffarnagar transferred to the Tribunal concerned at Delhi - Motor Vehicles - Motor Vehicles Act, 1988, S. 166(2)" Also the Head note of Dolly Kantibhai Patel (supra) reads thus: "Civil Procedure Code, 1908 - S.

25 - Motor accident claim petition - Transfer of - Petitioner (claimant) going back to USA, where he was living earlier - Petitioner requiring transfer of claim from MACT, Nasik to Vadodara (Gujarat) on the ground that his power-of-attorney holder was residing at Vadodara and all other occupants of vehicle, who were involved in accident, hailing from Vadodara - Also the insurance company having its branch office at Vadodara - In view of above reasons, transfer of claim petition allowed as prayed for" ,I, However on close scrutiny of the text of judgments of this Court, we find that no reference therein has been made to Section 25 of the Code, or to any other provision under which the said power is exercised. It must in this context be noted that Head notes by the editors of a Reports are not a conclusive guide to the text of the judgment reported.

They are made only for the convenience of the readers as a short summary to the 4 text and for easy reference and at times they are misleading. The United States Supreme Court in United States v. Detroit Timber & Lumber Co. , 200 U. S. 321, 337. I ,J "In the first place, the headnote is not the work of the court, nor does it state its decision,-though a different rule, it is true, is prescribed by statute in some states. It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports. " Reference may also be had to Parmananda Pegu v. State of Assam, [(2004) 7 SCC 779], wherein it was stated: "21. The decision of this Court in Chandrakant Chiman/al Desai v. State of Gujarat has created some difficulty in understanding the law which is otherwise so well settled. The learned Judges imported the observations which were made in Kashmira Singh v. State of M. P.

in the context of evidentiary value of the confession of co-accused and applied them to the case of retracted confession. It appears that the learned Judges went by the headnote in the AIR6 which opens up with the sentence: (AIR p. 159) ''The confession of an accused person.... " However, in the text of the judgment it is crystal clear that the entire discussion and the statement of law was only with reference to the confession of the co-accused. While clarifying that the confession of the co-accused is not evidence in the ordinary sense of the term as pointed out by the Privy Council, this Court observed in Kashmira Singh case that such a confession cannot be made the foundation of a conviction and can only be used in support of other evidence. 22. In Chiman/a/ case the learned Judges, after referring to the headnote portion of Kashmira Singh in AIR 1952 SC 159 proceeded to apply the test applicable to the confession of the co-accused to a case of retracted confession. 23.

In view of the error in comprehending the scope of the decision in Kashmira Singh case the decision in KONG & SHANGHAI BANKING CORPN. [S. S. SINHA, J. ] Chimanlal case falls close to the category of decisions rendered per incuriam. " ~ Reliance has also been placed on a decision of this Court in Rajasthan State Road Transport (supra) wherein a Motor Accident Claims Tribunal was held to be a civil court purported to be on the basis of a decision in Bhagwati Devi (supra) wherein the principles contained in Order XXlll of the Code had been held to be applicable to the Motor Accident Claims Tribunal. A provision in the Code which is benevolent in character and sub serve the social justice doctrine in a situation of that nature has been applied, but the same, in our opinion, by itself would not make a Tribunal a civil court. No reason has been .. assigned as to why a Tribunal has been considered to be a civil court for the purpose of Section 25 of the Act.

The court appears to have proceeded on the basis that an appeal before the High Court shall lie in terms of Section 173 of the Motor .. Vehicles Act, 1988 from an Award passed by the Tribunal, thus showing that it is a part of the hierarchy of the civil court. Motor Accident Claims Tribunal, thus, is a court subordinate to the High Court. No appeal against the judgment of the Debt Recovery Tribunal lies before the High Court unlike under the Motor Vehicles Act, 1988. The two Tribunals are differently structured and have been established to serve totally different "· purposes. If the Tribunal was to be treated to be a civil court, the debtor or even a third party must have an independent right to approach it without having to wait for the Bank or Financial Institution to approach it first. The continuance of its counterclaim is entirely dependant on the continuance of the applications filed by the Bank. Before it no declaratory relief can be sought for by the debtor.

It is true that claim for damages would be maintainable but the same have been provided by way of extending the right of counter-claim. / Debt Recovery Tribunal cannot pass a decree. It can issue only recovery certificates. [See Sections 19(2) and 19(22) of the Act]. The power of the Tribunal to grant interim order is attenuated with circumspection. {See Dataware Design Labs. 8 v. State Bank of India, {[2005] 12 Comp. Cas. 176 (Ker) at 184}. Concededly in the proceeding before the Debt Recovery Tribunal detailed examination; cross-examinations, provisions of the Evidence Act as also application of other provisions of the Code of Civil Procedure like interrogatories, discoveries of documents and admission need not be gone into. Taking recourse to such proceedings would be an exception. Entire focus of the proceedings before the Debt Recovery Tribunal centers round the legally recoverable dues of the bank.

Should we adopt the principle of purposive interpretation so as to hold that the ORT would be a Civil Court? We have noticed hereinbefore that Civil Courts are created under different Acts. They have their own hierarchy. They necessarily are subordinate to the High Court. The appeals from their judgment will lie before a superior court. The High Court is entitled to exercise its power of revision as also superintendence over the said courts. For the aforementioned purpose, we must bear in mind the distinction between two types of courts, viz. , civil courts and the courts trying disputes of civil nature. Only because a court or a tribunal is entitled to determine an issue involving civil nature, the same by itself would not lead to the conclusion that it is a civil court. For the said purpose, as noticed hereinbefore, legal fiction is required to be created before it would have all attributes of a civil court.

The Tribunal could have been treated to be a civil court provided it could pass a decree and it had all the attributes of a civil court including undertaking of a fullfledged trial in terms of the provisions of the Code of Civil NAHAR INDUSTRIAL ENTERPRISES I-TD. v. HONG 117 KONG & SHANGHAI BANKING CORPN. [S. S. SINHA, J. ] Procedure and/or the Evidence Act. It is now trite law that jurisdiction of a court must be determined having regard to the purpose and object of the Act.

If the Parliament, keeping in view the purpose and object thereof thought it fit to create separate tribunal so as to enable the banks and the financial institutions to recover the debts expeditiously wherefor the provisions contained in the Code of Civil Procedure as also the Evidence Act need not necessarily be resorted to, in our opinion, by taking recourse to the doctrine -1 of purposive construction, another jurisdiction cannot be conferred upon it so as to enable this Court to transfer the case from the civil court to a tribunal. It is difficult to accept the submission of Mr. Diwan that if such an interpretation is accepted, the same would remove the anomaly which would otherwise be present in the cases where recovery is for a sum below Rs. 10 lakhs and for those·where recovery is for a sum of Rs. 10 lakhs or more. Parliament ~ ~ created such an anomaly, if any, knowingly. Expeditious recovery of the debts above Rs. 10 lakhs is the object of the Act.

Casus omissus, if any, it is well-known cannot be supplied by the court. In Raghunath Rai Bareja (supra), this Court has clearly held: "... Assuming there is a defect or an omission in the words used by the legislature, the court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result. .. " Would the tribunal answer the description of the civil court must be considered having regard to the provisions of the Act constituting civil court as also the provisions of the Code of Civil Procedure? We have held that the Tribunals are neither civil courts nor courts subordinate to the High Court. The High Court ordinarily - can be approached in exercise of its writ jurisdiction under Article 226 or its jurisdiction under Article 227 of the Constitution of India. The High Court exercises such jurisdiction not only over the courts but also over the Tribunals.

Appellate tribunals have been constituted for determining the appeals from judgments and orders of the Tribunal. The principles of purposive construction, therefore, in our opinion, are not attracted in the instant case. Had the Parliament intended to make the Tribunals civil courts, a legal fiction could have been raised. There are statutes like the Andhra Pradesh Land Grabbing Act where such a legal fiction has been raised. {See V. Laxminarasamma v. A. Yadaiah (Dead) and Ors. , [2009 (3) SCALE 685]}. Whereas the doctrine of purposive construction is a salutary principle, the same cannot be extended to a case which would lead to an anomaly. It can inter alia be resorted to only when difficulty or doubt arises on account of ambiguity. It is to be preferred when object and purpose of the Act is required • to be promoted.

For the foregoing reasons, we are of the opinion that the decisions of this Court laying down the principles of purposive interpretation, whereupon strong reliance has been placed by Mr. Divan, viz. , New India Assurance Company Ltd. v Nus/i Neville Wadia and Another [(2008) 3 SCC 279], Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Another [(2007) 6 SCC 528], South Eastern Coalfields Ltd. v. CCET, MP [(2006) 6 SCC 340] and Uco Bank v. Rajinder Lal Capoor [(2008) 5 sec 257], cannot have any application. On the other hand, if the principles of purposive interpretation are resorted to, the same would amount to rewriting of the statute. - In Sri Ram Saha v. State of West Bengal and Ors. [JT 2004 (9) SC 136 : (2004) 11 SCC 497], this Court held: "19. It is well-settled principle of interpretation that a statute is to be interpreted on its plain reading; in the - } KONG & SHANGHAI BANKING CORPN. [S. B. ~INHA, J.

] absence of any doubt or difficulty arising out of such reading of a statute defeating or frustrating the object and purpose of an enactment, it must be read and understood by its plain reading. However, in case of any difficulty or doubt arising in interpreting a provision of an enactment, courts will interpret such a provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment is brought. into force. If two interpretations are possible, the one which promotes or favours the object of the Act and purpose it serves, is to be preferred. At any rate, in the guise of purposive interpretation, the courts cannot rewrite a statute.

A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act but the courts cannot legislate and enact the provision 0 either creating or taking away substantial rights by stretching or straining a piece of legislation. " [See also D. P. P. v_ Bhagwan (1970) 3 All ER 97]. CONCLUSION 17. The Tribunal was constituted with a specific purpose as is evident from its statement of objects. The preamble of the Act also is a pointer to that too. We have also noticed the scheme of the Act. It has a limited jurisdiction. Under the Act, as it originally stood, did not even have any power to entertain a claim of set off or counter-claim. No independent proceedings can be initiated before it by a debtor. A debtor under the common law of contract as also in terms of the loan agreement may have an independent right. No forum has been c;reated for endorsement of that right.

Jurisdiction of a civil court as noticed hereinbefore is barred only in respect of the matters which strictly come within the purview of Section 17 thereof and not beyond the same. The Civil Court, therefore, will continue to have jurisdiction. Even in respect of set off or counter-claim, having regard to the provisions of sub-sections (6) to (11) of Section 19 of the Act, it is evident:- (a) That the proceedings must be initiated by the bank (b) Some species of the remedy as provided therein would be available therefor. (c) In terms of sub-section (11) of Section 19, the bank or the financial institution is at liberty to send a borrower out of the forum. (d) In terms of the provisions of the Act, thus, the claim of the borrower is excluded and not included. (e) In the event the bank withdraws his claim the counter-claim would not survive which may be contrasted with Rule 6 of Order VIII of the Code.

(f) Sub-section (9) of Section 19 of the Act in relation thereto has a limited application. (g) The claim petition by the bank or the financial institution must relate to a lending/borrowing transaction between a bank or the financial institution and the borrower. (h) The banks or the financial institutions, thus, have a primacy in respect of the proceedings before the Tribunal. (i) An order of injunction, attachment or appointment of a receiver can be initiated only at the instance of the bank or the financial institution. We, however, do not mean to suggest that a Tribunal having a plenary power, even otherwise would not be entitled to pass an order of injunction or an interim order, although ordinarily expressly it had no statutory power in relation thereto. Q) It can issue a certificate only for recovery of its dues. It cannot pass a decree.

(k) Although an appeal can be filed against the judgment of the Tribunal, pre-deposit to the extent of 75 % of the demand is imperative in character. (I) Even cross-examination of the witnesses need not be found to be necessary. (m) Subject to compliance of the principle of natural justice it may evolve its own procedure. (n) It is not bound by the procedure laid down under the Code. It may however be noticed in this regard that just because the Tribunal is not bound by the Code, it does not mean that it would not have jurisdiction to exercise powers of a court as contained in the Code. 'Rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is . •. put on its powers is to observe the principles of natural justice. '[ See Industrial Credit and Investment Corpn. of India Ltd. v. Grapco Industries Ltd. , (1999) 4 SCC 710] The Tribunal, therefore, would not be a Civil Court. TRIBUNAL WHETHER IS SUBORDINATE TO THE HIGH COURT: 18.

The Court would be subordinate to High Court in terms of the provisions of the Code only in the event it comes within ... the purview of the hierarchy of the court as contained in Section 3 of the Act. This, however, does not mean that even when the Presiding Judge or the Presiding Officer of the Court exercises power conferred upon it under a statute still then it would not be a court subordinate to the High Court. A court while adjudicating a dispute under the Employees State Insurance Act or a Reference Court under the Land Acquisition Act, Election Tribunal or a Tribunal acting as a Motor Vehicles Accident Claim Tribunal, while exercising revisional jurisdiction from an order passed by the Executive Magistrate under the Code or exercising an appellate power under special statutes like Municipal Acts would still be a court subordinate to the High Court.

However, for the aforementioned purpose the Presiding s Officer must be holding a Court which would otherwise come within the purview of the hierarchy of the courts. In N. P. Balakrishanan v. P. M. R. Mariyumma, [AIR 1997 Kerala 89], the High Court has held : . "In view of the discussions it is clear that even though Rent Control Court under the Rent Control Act is a 'Court' and is not a perc;ona designate it is not a Civil Court for the purpose for the provisions of S. 115 of the CPC. Therefore, against an interim order of the Rent Control Court no revision petition will lie. We are not considering whether an appeal will lie against the interim order in question or whether a petition under Art. 227 of the Constitution is maintainable. " In Mis. Brooke Bond India Ltd. v. Union of India and others, [AIR 2001 AP 526 ] the Andhra Pradesh High Court has held:- "The contention urged by the counsel for appellant that the Railway Claims Tribunal is a civil Court cannot be accepted.

Merely because Section 18(3) of the Act provides that the Claims Tribunal, for the purpose of discharging the functions under the Act, shall have the same powers as are vested in the civil Court under the Code of Civil Procedure, 1908 and S. 25 provides that the proceedings before the Tribunal shall be deemed to be 'judicial proceedings' as contemplated under Sections ) 193, 210 and 228, IPC, they do not make the Railway Claims Tribunal a 'Civil Court'. In Devendra Somabhai Naik v. Mis. Accurate Transheet ..... ' "t:~ -, Pvt. Ltd. [AIR 2003 Gujarat 141] the High Court has held:j "No doubt, Article 137 deals with filling of appiications, but then the applications, which are contemplated to be filed, are the appiications filed before the civil Court. The appellant is also not successful in convincing this Court to hold that the 'Copyright Board' is a 'Civil Court'. In view of the aforesaid discussion, the present appeal fails.

The Court has not found any error in the order under challenge. The appeal is dismissed with no order as to costs. --! In State Bank of India v. Madhumita Construction (Pvt. ) Ltd. and others, [AIR 2003 Cal 7], the Calcutta High Court has • held:- "13.... On the other hand, it is a question as to whether this Court had jurisdiction or not. If the ORT has exclusive 0 jurisdiction and this Court ceases to have jurisdiction, in that event, it is not a question of granting injunction ' restraining the respondent Nos. 53 to 57 from proceeding with the same. But it is a case whether this Court has jurisdiction to proceed with or not. If it has jurisdiction, in that event, it can very much grant the injunction. If it hds no jurisdiction, it cannot do so. Even if it is assumed that Section 41(b) applies, still then ORT as such is not a Court subordinate to this Court. It does not fall within the hierarchy of the Courts as provided in the Bengal, Agra and Assam Civil Courts Act, 1887.

The Tribunal constituted under the ORT Act is not a Court. It is a Tribunal having the trappings of a Court. A Tribunal with trappings of Court cannot be equated with a Court as is understood from the expression "Court". A Court is a body established by law for the administration of justice by Judges or Magistrates. This J. definition may include a Tribunal as well. Inasmuch as, it is also a body constituted or established by law for administration of justice. But, when it comes to the distinction between Court and Tribunal, then the Court as it understood is different from a Tribunal. The word "Court", .. y however, has not been defined anywhere in any law. Different kinds of Courts have since been established under different laws. The hierarchy of the Court as established under Bengal, Agra and Assam Civil Court Act are Courts in respect of which the Code of Civil Procedure is applicable and the jurisdiction is open.

Section 4 and 5 CPC also spells out Courts in the context of applicability of CPC. Under Section 9 of CPC. All suits of civil nature are triable by a Court unless cognizance of a particular kind of suit is expressly or impliedly barred. .. There are certain kinds of suits which are triable by revenue Courts or Provincial or Presidencies Small Cause Court The subordination of the Courts is determined under Section 3, CPC on the basis of the provisions of Code of Civil Procedure applicable to it having regard to the provisions contained in Bengal, Agra and Assam Civil Courts Act" In Greater Bombay Coop. Bank Ltd. v. United Yam Tex (P) Ltd. , [(2007) 6 SCC 236 ], this Court has held :- - "76. Section 31 of the RDB Act clearly refers to transfer of "every suit or other proceeding pending before any court". The word "court", in the context of the RDB Act, signifies "civil court".

It is clear that the Registrar, or an officer designated by him or an arbitrator under Sections 61, 62, 70 and 71 of the APCS Act, 1964 and under Section 91 and other provisions of Chapter IX of the MCS Act, 1960 are not "civil courts" 77. In Harinagar Sugar Mills v. Shyam Sundar Jhunjhunwala this Court held: (AIR p. 1680, para 32) "By 'courts' is meant courts of civil judicature and by .. 'tribunals', those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the ~:AHAR INDUSTRIAL ENTERPRISES LTD. v. HONG 125 KONG & SHANGHAI BANKING CORPN. [S. S. SINHA, J. ] attributes of the State, and is aptly called the judicial power I of the State. " In Rama Rao v. Narayan it was held ttiat the nominee of Registrar appointed under Section 95 of the Maharashtra Cooperative Societies Act, 1961 is not a "court" within the meaning of Section 195 Cr PC.

In Kihoto Hollohan v. Zachillhu it was held that: (SCC p. 706, para 98) ·j " 'All tribunals are not courts, though all courts are tribunals. ' The word 'courts' is used to designate those tribunals which are set up in an organised State for the administration of justice. " :~- In Supreme Court Legal Aid Committee v. Union of India it was held: (SCC p. 745, para 14) "14. It is common knowledge that a 'court' is an· ' agency created by the sovereign for the purpose of administering justice. It is a place where justice is judicially • administered. It is a legal entity. " EXCLUSION OF JURISDICTION MUST BE EXPRESS 1 19. The Civil Court indisputably has the jurisdiction to try a suit. If the suit is vexatious or otherwise not maintainable action can be taken in respect thereof in terms of the Code.

But if all suits filed in the Civil Courts, whether inextricably connected with the application filed before the DRT by the banks and financial institutions are transferred, the same would amount to ousting the jurisdiction of the Civil Courts indirectly. -( Suits filed by the debtor may or may not be counter claims to .. ( the claims filed by banks or financial institutions but for that .... purpose consent of the plaintiff is necessary. It is furthermore • difficult to accept the contentions of the respondents that the . -1. statutory provisions contained in section 17 and 18 of the DRT Act have ousted the jurisdiction of the civil court as the said provisions clearly state that the jurisdiction of the civil court is barred in relation only to applications from banks and financial institutions for recovery of debts due to such banks and financial institutions. A civil court is entitled to decide the respective claims of 8 the parties in a suit.

It must come within the purview of the hierarchy of courts as indicated in Section 3 of the Code. It will have jurisdiction to determine all disputes of civil nature unless the same is barred expressly by a statute or by necessary implication. Although some arguments have been adi[cmced before us whether having regard to the provisions of Sections 17 and 18 of the Act the civil court jurisdiction is completely ousted, we are of the view that the jurisdiction of the civil court would be ousted only in respect of the matters contained in Section 18 which has a direct co-relation with Section 17 thereof, that is to say that the matter must relate to a debt 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.

It must further be noted in this respect that had the jurisdiction of the civil courts been barred in respect of counterclaim also, the statute would have said so and Sections 17 and 18 would have been amended to introduce the provision of counterclaim. We may in this context place on record the following observations from Indian Bank (supra): · "14. Section 9 of the Code of Civil Procedure provides that the courts shall have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. 15. It is evident from Sections 17 and 18 of the Debts Recovery Act that civil court's jurisdiction is barred only in regard to applications by a bank or a financial institution for recovery of its debts. The jurisdiction of civil courts is not barred in regard to any suit filed by a borrower or any other person against a bank for any relief. [... ] 16. [... ]What is significant is that Sections 17 and 18 have not been amended.

Jurisdiction has not been conferred on the Tribunal, even after amendment, to try independent suits or proceedings initiated by borrowers or others against banks/financial institutions, nor the jurisdiction of civil courts · barred in regard to such suits or proceedings. It must be remembered that the jurisdiction of a civil court is plenary in nature. Unless the same is ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits. In Dhu! abhai v. State of M. P. , [(1968) 3 SCR 662 ], this Court opined:- "35. [... ] The result of this inquiry into the diverse views expressed in this Court may be stated as follows: [... ] (2) 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 jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find _j \ out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said .. 1. statute or not. ' ~ (7) An exclusion of the jurisdiction of the civil court is not ' I'.. ,(' readily to be inferred unless the conditions above set down '' apply. " In Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, [(2003) 6 sec 2201 "19. A bare perusal of the aforementioned provisions leaves no manner of doubt that thereby the jurisdiction of the civil court has not been ousted.

The civil court, in the instant case, was concerned with tile rival claims of the parties as to whether one party has illegally been dispossessed by the other or not. Such a suit, apart from the general law, would also be maintainable in terms of Section 6 of the Specific Relief Act, 1963. In such matters the court would not be concerned even with the question as to the title/ownership of the property. " Therein five principles were laid down stating :- . "22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation.

The court, it is well settled, would normally lean in favour of construction, which would ,_ uphold retention of jurisdiction of the civil court. The burden of proof in this behalf shall be on the party who asserts that the civil court's jurisdiction is ousted. (See Sahebgouda V. Ogeppa, (2003) 6 SCC 151. ) Even otherwise, the civil court's jurisdiction is not completely ousted under the Companies Act, 1956. " In Nagri Pracharini Sabha v. Vth Addi. Distt. and Sessions Judge, [1991 Supp (2) SCC 36] "2. A litigant having a giievance of a civil nature has, independently of any statute, a right to institute a suit in the , civil court unless its cognizance is either expressly or impliedly barred. The position is well-settled that exclusion of jurisdiction of the civil court is not to be readily inferred and such exclusion must be either expressly or implied. " In Ramesh Chand Ardawatiya v. Anif Panjwani, [ (2003) 8 7 SCC 350 ] this Court opined :- "19. ...

Where there is a special tribunal conferred with jurisdiction or exclusive jurisdiction to try a particular class of cases even then the civil court can entertain a civil suit of that class on availability of a few grounds. An exclusion of jurisdiction of the civil court is not to be readily inferred. (See Dhulabhai v. State of M. P. ) " Power to create or enlarge jurisdiction is legislative in character. Similarly, right of revision or appeal is normally a o creature of statute. In Rajasthan SRTC v. Zakir Hussain, [(2005) 7 SCC 447] this Court has held:- "21. It is a well-settled principle of law as laid down by this Court that if the court has no jurisdiction, the jurisdiction cannot be conferred by any order of court. This Court in the case of A. R. Antulay v. R. S. Nayak, AIR paras 40 to 42 wherein it is, inter alia, held and obseNed as under: (SCC pp. 650-51, paras 38-40) 39[41].... The power to create or enlarge jurisdiction is legislative in character. ...

Parliament alone can do it by law and no court, whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal. The Act, although, was enacted for a specific purpose but having regard to the exclusion of jurisdiction expressly provided for in Sections 17 and 18 of the Act, it is difficult to hold that a civil court's jurisdiction is completely ousted. Indisputably the banks and the financial institutions for the purpose of enforcement of their claim for a sum below Rs. 10 lakhs would have to file civil suits before the civil courts. It is only for the claims of the banks and the financial institutions above the aforementioned sum that they have to approach the Debt Recovery Tribunal. It is also without any cavil that the banks and the financial institutions, keeping in view the provisions of Sections 17 and 18 of the Act, are necessarily required to file their claim petitions before the Tribunal.

The converse is not true. Debtors can file their claims of set off or counter-claims only when a claim application is filed and not otherwise. Even in a given situation the banks and/or the financial institutions can ask the Tribunal to pass an appropriate order for getting the claims of set-off or the counter claims, determined by a civil court. The Tribunal is not a high powered tribunal. It is a one man Tribunal. Unlike some Special Acts, as for example Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 it does not contain a deeming provision that the Tribunal would be deemed to be a civil court. The liabilities and rights of the parties have not been created under the Act. Only a new forum has been created. The banks and the financial institutions cannot approach the Tribunal unless the debt has become due. In such a contingency, indisputably a civil suit would lie.

There is a possibility that the debtor may file preemptive suits and obtain orders of injunction, but the same alone, in our opinion, by itself cannot be held to be a ground to completely oust the jurisdiction of the civil court in the teeth of Section 9 of the Code. Recourse to the other provisions of the Code will have to be r~sorted to for redressal of his individual grievances. It is also difficult to accept the contention of leaned counsel for the banks that the civil court's jurisdiction is not in consonance with the Act. We do not find the same to be correct. On the ground of inconsistency in the procedures contained in th