CENTURION BANK LIMITED Vs. INDIAN LEAD LIMITED

JUDGEMENT

(1.) THE plaintiffs by the present petition have applied for leave under Clause 12 of the Letters Patent. The suit by the plaintiff is for a declaration that the Hire Purchase Agreement dated 27th January, 1995 and the Hire Purchase Agreement dated 3rd July, 1995 are validly terminated with effect from 5th June, 1999; a further declaration that the defendants have no right, title or interest or claim whatsoever in respect of the said equipment, etc.; that the defendants be ordered and directed forthwith to hand over and deliver possession to the plaintiffs of the said equipments; that the defendants be ordered and decreed to jointly and/or severally pay a sum of Rs. 31,32,608/ - collectively under the said Agreements being arrears of hire charges upto 5th June, 1999 with further interest thereon; that the defendants jointly and/or severally be ordered and decreed to pay to the plaintiffs a sum of Rs. 25,02,274/ - towards hire purchase charges for the remaining period of hire; that the defendants be ordered and decreed to pay damages/compensation for wrongfully retaining and using the equipments in a sum of Rs. 33,744/ - per month from 5th June, 1999 with further interest thereon till possession of the equipments is handed back; without prejudice to the above prayers a sum of Rs. 74,48,000/ - by way of loss and/or damages with interest thereon and for perpetual injunction to restrain the defendants from in any manner retaining or holding on the possession or using the said equipments given on hire under the said agreements.

(2.) THE suit by the plaintiffs is against the defendant No. 1 with whom the hire purchase agreement was entered into and defendant No. 2 who was a guarantor. It is the contention on behalf of the plaintiffs that the reliefs which are prayed for with the exception of prayer Clause b(iii) are reliefs which are not covered by the provisions of the Recovery of Debt Due to Banks and Financial Institutions Act, 1993 and consequently this Court will have jurisdiction to hear and decide the suit. It is contended that prayer Clause b(iii) is an ancillary relief to the main relief and as such the plaintiffs should not be driven to another Forum for recovery of the debts under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act (hereinafter referred to as the Recovery of Debts Act). On the other hand on behalf of the defendants it is contended that there is a specific prayer for recovery of debts. The suit against the defendant No. 2 is in his capacity as guarantor, which will purely be for recovery of debt and consequently this Court will have no jurisdiction and the suit lies within the exclusive jurisdiction of the Recovery of Debts Act. It is contended on behalf of the defendants that this Court has no jurisdiction in view of the Recovery of Debts Act.

(3.) A co joint reading of these Sections, to my mind, will indicate that in respect of recovery of debts it is the Tribunal alone which would have jurisdiction. The question, however, is what happens in a case where there are other reliefs apart from the relief for recovery of debt. In that context, to my mind. Section 31 which is the Section pertaining to transfer would have an important bearing. That Section speaks about the cause of action. In other words the cause of action must relate to recovery of debt. If the proceedings are in respect of such cause of action, then only the proceedings pending in a Court will be transferred under Section 31. Such cause of action must arise from transactions with the Banks or Financial Institutions and must be for recovery of debt. The other relevant Section is Section 19(7) under which the Presiding Officer has to issue a certificate for the recovery of the debt which then can be recovered in a manner provided by Section 25 of the Act. In other words the relief granted must be capable of being executed under Section 25 of the Act. In the instant case admittedly there is one prayer which can be said to be a prayer for recovery of debt and which can be decided under Section 17 of the Act. In many legislations, the Legislature when it wants to oust the jurisdiction of the Civil Court on any issue frames the language of the Section in such a manner that if any issue arises and which has to be decided by the alternative Forum then that Forum alone and not the Civil Court which can exercise jurisdiction. In a case where an issue arises before a Civil Court, which has to be decided by the Special Forum, the Legislature provides that such an issue is to be referred to the Special Forum for its decision. The decision or findings then has to be remitted to the Civil Court. This is for the purpose of excluding the jurisdiction of the Civil Court vested in the Civil Court under Section 9 of the Code of Civil Procedure. Section 9 of the C.P.C. sets out that the Court shall have jurisdiction to try all suits of Civil nature except suits of which their cognizance is either expressly or impliedly barred. By virtue of this Section a Civil Court is conferred with jurisdiction to decide all matters unless those matters are excluded by another special enactment either expressly or impliedly. Admittedly under the Debts Recovery Act, recovery of a debt is barred. Does that mean that the Civil Court would cease 10 have jurisdiction in respect of the entire suit or only in respect of the issue pertaining to debt. The normal rule of construction is that the jurisdiction of the Civil Court is not excluded unless it is specifically excluded or it follows by necessary implication. Under the Debt Recovery Act there is no total ouster of jurisdiction of the Civil Court. The ouster is by virtue of Section 18, which sets out that no Court or other authority can try matters for recovery of debts. Insofar as the reliefs which do not pertain to debts on a plain reading of Section 17 of the Debt Recovery Act there can be no doubt that the Civil Court will still retain jurisdiction. A prayer for damages is not a prayer for recovery of debt. Similarly the other reliefs in the present suit. The only relief which if and at all cannot be decided is the relief pertaining to recovery of unpaid instalments. There is no provision in the Debt Recovery Act which provides that in the event any such issue arises the issue must be either referred to Tribunal or that the Court is bound to stay the proceedings before such issue is decided. Considering the language of Section 17, Sections 25 and 31 of the Debt Recovery Act and Section 9 of the C.P.C. can it still be said that the Civil Court would retain jurisdiction in the present case as recovery of debt is only an ancillary relief to the other reliefs of declarations and recovery of properties as it contended. The cause of action is the breach of the terms of the agreement and consequent termination of the agreement. Can such a cause of action be split. Under Order 2 Rule 2 of the C.P.C. leave can be granted to sue subsequently for a relief arising from the same cause of action. Otherwise it is not permissible to split the cause of action. Under Order 2 Rule 2 the plaintiff when he files the suit must include the entire claim. If he omits to sue or relinquishes part of the claim he then cannot sue in respect of the portion omitted or relinquished. To take a view that a party must be driven to two Forums would be to increase multiplicity of proceedings which the legislature seeks to avoid. As far as possible the Court must avoid this approach. It will, therefore, have to be examined what is the cause of action and if in suits where Civil Court has jurisdiction to grant most of the reliefs, will the Civil Court retain jurisdiction even for that part of the relief which pertains to recovery of debts. Useful reliance for that purpose may be placed on Clause 12 of the amended Letters Patent of this Court. This Court on its Original Side has jurisdiction to decide suits of every description. However, in case of suits for land or immovable property, if such land or property be situated within the territorial jurisdiction of this Court. In this context the question has arisen as to what is the meaning of the expression suit for land or other immovable property. Various Division Benches of this Court including in the case of Khandesh Spinning Weaving Mills Co. Ltd. v. Moolji Jaitha & Co. AIR 1948 Bom. 272 : 50 Bom. L.R. 368 : I.L.R. 1948 Bom. 693 which has been affirmed by the Federal Court in Moolji Jaitha &. Co. v. The Khandesh Spinning Weaving Mills Co. Ltd. AIR 1950 F.C. 88 have taken the view that to exclude the jurisdiction of this Court what has to be decided is whether the suit is a suit substantially for land. To my mind this would be a correct approach to apply in the present case also. The test to apply would be whether the cause of action is substantially an action for recovery of debt. For illustration we may take the case of a Banking Company or Financial Institution covered by the Recovery of Debts Act. If such Institution possess or owns properties which they give out on rent or licence and the tenant or licensee fails to pay the arrears and the lease or licence is terminated and there is no Rent Act in that area, which will be the forum which will have jurisdiction. In such a situation can it be said that to recover the arrears of rent or licence fee, being a debt within the meaning of the Act the party will have to be sent to the Debt Recovery Tribunal and insofar as the relief of eviction is concerned, it will be the Civil Court that would have jurisdiction. To my mind this is not the object of the Recovery of Debts Act. The Recovery of Debts Act to my mind has been principally enacted for the purpose of recovery of loans granted by Banks and Financial Institutions. Therefore, if the suit is a suit for recovery of debt and also for sale or realisation of securities which would be ancillary to the purpose of recovery of debt, such a suit would be a suit substantially for recovery of debt. Such a suit would not be maintainable before a Civil Court. Useful reliance can be placed on the judgment of the Apex Court in the matter of United Bank of India v. Debts Recovery Tribunal and Ors. : [1999]2SCR496 to understand the object of the Act and the extent of scope of jurisdiction under the Debt Recovery Act. In that case a suit was filed in the Calcutta High Court. After the Recovery of Debts Act came into force the suit was transferred to the Debt Recovery Tribunal. An application was moved before the Tribunal that the Tribunal has no jurisdiction. That application was rejected, against which a petition was filed before the Calcutta High Court. The Calcutta High Court took a view that the suit as framed was one for damages and compensation which were required to be quantified before decree is passed i.e. an undetermined debt and such a suit will not be within the purview of the provisions of the Act in question. On facts the judgment of the High Court was reversed. The Apex Court has reproduced the Statement of Objects and Reasons of the Act as reflected in the Bill in para 5 of the said judgment. However, to my mind what is more relevant is the observations in para. 15 which read as under: - In ascertaining the question whether any particular claim of any Bank or Financial Institution would come within the purview of the Tribunal created under the Act, it is imperative that the entire averments made by the plaintiff in the plaint be looked into and then find out whether notwithstanding the specially created Tribunal having been constituted, the averments are such that it is possible to hold that the jurisdiction of such a tribunal is ousted. In other words what the Apex Court has said is look at the entire averments in the plaint and from that find out as to whether the Civil Court has jurisdiction in which event the jurisdiction of the Tribunal is ousted. The ouster of jurisdiction to my mind in these cases would be to find out as to what is the cause of action and not merely the relief prayed for. For the Tribunal to have jurisdiction the cause of action must be substantially for recovery of debt. Once from the averments it is found that the cause of action is substantially for recovery of debt then the Tribunal will have jurisdiction to grant, decide ancillary reliefs, issues provided the order passed can be executed in the manner provided by the Debt Recovery Act. As to what is cause of action useful reference may be made to the judgment of this Court in the case of Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass and Ors. : AIR1952Bom365 Chagla, C.J., was deciding the issue as to whether the Court would have jurisdiction to decide a suit involving the partition of both movable and immovable properties. While dealing with the issue of movable properties the learned Chief Justice observed as under: - If the property or part of the property is situated within jurisdiction, then the cause of action or a part of the cause of action has arisen within jurisdiction. The question of location of movables does not arise from the point of view of their situs; it arises from the point of view of the cause of action. Therefore, in holding that the Court has jurisdiction to try a suit for partition of movables if the movables are situated within jurisdiction, I am not so holding on the ground that the situs of the movables is within jurisdiction, but solely on the ground that the location of the movables within jurisdiction constitutes a part of the cause of action of a partition suit for movables. Therefore, if the language of Section 31 is seen read with Section 17 it must be the 'cause of action' based on which the Tribunal assumes jurisdiction. A party could move the Tribunal if it is a proceeding for recovery of debt alone or substantially a proceeding for recovery of debt and the certificate issued can be executed under the Act. On behalf of the plaintiffs their learned Counsel points out that in respect of several causes of actions if the Court has original jurisdiction in respect of one such cause of action then under Clause 14 of the Letters Patent this Court can grant permission to sue in respect of the other several causes of action. For that purpose he relies on the judgment of a Division Bench of this Court in the case of Arte Indiana v. P. Mittulaul Lalah Sons and Anr. 1999 (4) L.J. 422 : 101 (3) Bom. L.R. 188. In that case the Division Bench was considering Clause 14 of the Letters Patent. The Division Bench held that under Clause 14 there is no requirementthat the cause of action must arise within the territorial jurisdiction for the Court to exercise the power under Clause 14. Admittedly in that case no part of the cause of action had arisen within the territorial jurisdiction of this Court. It is only by virtue of Section 62 of the Copy Right Act in case of breach of copy right that the plaintiff has been conferred a right to sue in the Court where he carries on business. I am not persuaded by that argument. Firstly, Clause 14 applies when plaintiff wishes to club several causes of action. Secondly, if the Civil Court has no jurisdiction ordinarily to try a suit, Clause 14 cannot be invoked to confer jurisdiction which is ousted. A Civil Court to try a suit must have territorial, pecuniary and jurisdiction as to subject -matter. If it does not have any of those jurisdictions it cannot entertain the suit. This is also the position under the Letters Patent. Clause 11 limits the territorial jurisdiction of this Court and Clause 12 confers jurisdiction in respect of the subject -matter. To accept that argument it must be held that if the plaintiff has a cause of action and even though the jurisdiction of the Civil Court is expressly barred in respect of the subject -matter or has no territorial jurisdiction by invoking Clause 14 the Court could assume jurisdiction. To invoke Clause 14 the cause of action must have arisen within jurisdiction as observed in Shiv Bhagwan Moti Ram Saraoji (supra). No Court can confer jurisdiction on itself which it does not have. A cause of action is a bundle of facts which enables persons to maintain a suit in a Court. That Court can only be a Court which has territorial, pecuniary and jurisdiction as to subject -matter. The power under Clause 14 can be invoked to join a cause of action which may not arise within the jurisdiction of the Court, but is a cause of action which can be tried by a Civil Court. Clearly a suit for recovery of debt cannot be filed in Civil Court. That jurisdiction has been conferred on the Tribunal. The judgment in Arte Indiana (supra) will have to be restricted to cases under the Copy Right Act.