EUREKA FORBS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) The Court: This is an application for amendment of the original writ petition. In the original writ petition there are two-fold prayers. The first is writ of mandamus for the purpose of declaring the Recovery of Debts due to Banks and Financial Institution Act of 1993 and the Debt Tribunal Procedure Rules, 1993 are unconstitutional, ultra vires and null and void. The second is the determination of an issue in respect of a case pending before the Debt Recovery Tribunal. As regards the first point the Supreme Court has already held that the Act and Rules are intra vires, therefore the writ petition becomes infructuous to that extent. The writ petition was of the year 1995 which was placed under the heading 'old matters' before the Court for expeditious disposal due to long pendency. During such period only on 1st August, 2002 the present application was filed before the Court. In the application for amendment I find there is no amendment of the prayers but amendment of pleading, cause title and the grounds. An elaborate discussions of the factual aspects as well as jurisdiction of the Tribunal to decide such issue have been urged. Order 6 rule 17 of the Code of Civil Procedure says that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question of controversy between the parties. From the plain reading of the provision of amendment of pleading it appears that whenever Court feels it just, amendment may be allowed, similarly, if the Court finds that it is unjust, it can be disallowed. The amendment is necessary for the purpose of determining the real question of controversy between the parties. Therefore, the amendments can not be allowed by a flook. It is deep rooted into the provisions which is also applicable in case of writ petition.

(2.) The case of the petitioner company is that the petitioner is not a debtor to the bank. Therefore, section 2(g) of the Act cannot be applied in respect of the petitioners who is not a debtor of the bank. Neither the petitioners are the constituent of the concerned bank nor availed any credit facility or executed any document in favour of the bank to enable to file a suit or an application in the Tribunal. They have pointed out such facts by an application before such Tribunal. There is no nexus or privity of contract in between themselves and the bank. The decree or order which has been passed by the Tribunal is without jurisdiction and the recovery certificate is contrary to the principle of law and natural justice. Such order should be recalled and/or set aside.

(3.) Mr. Jayanta Kumar Mitra, learned senior counsel, appearing in support of the petitioners cited a judgment reported in AIR 1954 SC 340 (Kiran Singh & Ors. v. Chaman Paswan & Ors.) and contended that the fundamental principle is that decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution or in a collateral proceeding. Defect of jurisdiction, whether pecuniary or territorial strikes the very authority of the Court to pass a decree, and such a defect cannot be cured even by the consent of the parties.