ABDUL KHADER M P Vs. CATHOLIC SYRIAN BANK

JUDGEMENT

(1.) Admittedly by the writ petitioner he is the judgment debtor in Ext. P1 decree. He has approached this court with this writ petition seeking a declaration that Ext. P1 decree is a nullity. The basis for this contention is that Ext. P1 decree obtained by a scheduled bank is for a total amount of Rs. 15,60,740. This being an amount in excess of 10 lakhs, it should have been passed only by a tribunal constituted in terms of Recovery of Debts Due to Banks and Financial Institutions Act. Therefore, the civil court did not have, on the appointed day, namely 04/11/1996, onwards, power to pass a decree like Ext. P1. Thus it is a nullity and cannot be therefore executed. To fortify this contention the decisions of the apex court in Allahabad Bank v. Canara Bank and Another ( AIR 2000 SC 1535 ) and of this court in Glenny v. The Catholic Syrian Bank Ltd.( 2003 (2) KLT 973 ) are relied on. Going by S.17 of the Act only the tribunal constituted under it alone did have Jurisdiction to pass such a decree. In other words, the counsel contends, going by S.18 of the Act jurisdiction of civil courts, is barred to pass a decree for an amount of Rupees 10 lakhs or more in favour of a bank or a financial institution. Placing reliance on S.31 of the Act it is contended that on the moment, when the subject matter of the suit exceeded the said limit, the suit ought to have been transferred to the tribunal. Therefore on any count, Ext. P1 is unsustainable and therefore is a nullity. It ought not to have been passed by the Subordinate Judge, Payyannur it is further submitted that even in respect of a decree passed by a civil court before the appointed day, if the decree amount exceeds the limit it ought to have been sent to the recovery officer for appropriate execution.

(2.) In answer, it is contended by the counsel for the respondent/bank that the decision in Allahabad Bank's case does not in any way cover the issue, as it was a case concerning a matter related to the impact of the provisions of the Act in relation to the proceedings under Companies Act, 1956. It is further contended that the Full Bench decision in Glenny's case was in relation to the maintainability of a petition to set aside ex parte decree which at the material point of time excluded the prescribed amount. It is further submitted that when the suit in question which resulted in Ext. P1 decree was filed, the total amount due was only Rs. 6,52,445. The suit was filed in the year 1999, far later than the appointed day. Its disposal was delayed because of the attitude of the petitioner / defendant in not appearing and being set ex parte for more than one occasion and carrying the matter before this court on each of the such occasions. Therefore the interest accrued to the tune of Rs. 85,234. Had the suit been disposed of, if the petitioner had cooperated, in time, within reasonable time after the filing, it would not have crossed the limit. It is further submitted that because of the interest accrued and a further amount of Rs. 55,935 towards cost, the decree amount exceeded the limit of Rupees 10 lakhs. At the same time it is conceded that the decree could be executed only by resorting to the provisions of the Act.

(3.) The dictum of the Apex Court in Allahabad Bank's case does not have any application to the case on hand because that was in relation to a different fact frame. Of course the decision in Glenny's case is almost on similar facts as is revealed in para 2 of the said judgment. There, a suit was filed against Glenny for an amount of Rs. 8,61,130. Glenny was set ex parte on 16/06/2000. An ex parte decree was passed. That decree was for an amount of more than 15 lakhs. Glenny attempted to set the ex parte decree aside and moved the court which passed that decree. The Full Bench held that, that petition ought not to have been entertained by that court, because the petition was to set aside a money decree exceeding Rs.10 lakhs obtained by a bank. Therefore, only the tribunal constituted under the Act alone did have jurisdiction to entertain such an application to set aside a decree which exceeded Rs. 10 lakhs limit provided for in sub-s.(4) of S.1 of the Act.