SUDHA KHEMKA Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) Nostalgia may have no place in a judgment, but it may be excusable to lament the extinction of a few legal axioms in the wake of the new laws that now come in faster than one can make it count and, often, unmindful of the manner of implementation thereof. What remains unchanged is that the old order has to change yielding place to the new, never mind that a few maxims are undone in the process.

(2.) As the law in the country boldly goes to places where previous generations of law-makers had been reluctant to take it and justicing marches out of court to embrace tribunalisation of the justice delivery system, there remains a band of the old-fashioned that is stuck, like a broken record, with the refrain that the Constitution had ordained that the role of adjudication would, in the main, be the exclusive domain of the judiciary. Yet, it must be recognised that the Constitution of India is a living document and it need not be interpreted by reference to a dictionary of the time that it was scripted. So much for the prologue.

(3.) Of the two interlocutory petitions in the suit that have been assigned to this Bench and are taken up for consideration, one is for the rejection of the plaint on the ground of Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The second defendant secured creditor insists that whether or not measures under Section 13(4) of the said Act of 2002 had been resorted to by it, the sweep of Section 34 of the said Act of 2002 would oblige the civil court to anticipate the likely effect of a suit before entertaining it. Since the prohibition under Section 34 of the said Act of 2002 is on the civil court, which implies that the receipt of a suit in derogation thereof would amount to inherent lack of jurisdiction, it appears to be an argument available to a secured creditor in the context of the embargo under the relevant provision. What the secured creditor in this case suggests is that the expression in Section 34 of the said Act of 2002 "empowered by or under this Act to determine" not only deals with a lis pending before a Debts Recovery Tribunal or an Appellate Tribunal, but also any matter which a Debts Recovery Tribunal or an Appellate Tribunal is authorised to adjudicate upon.