PRIYAVART CHOWDHURY Vs. PUNJAB AND SIND BANK

JUDGEMENT

(1.) -The instant application under Article 227 of the Constitution of India is directed against Order No.10 dated 11.11.96 passed by the Debt Recovery Tribunal, Calcutta in OA/60/96. The parties have been heard at length and Mr. Kundu, the learned Advocate submitting on behalf of the Punjab and Sind Bank has assured this court that a Power duly executed in favour of his junior will be submitted in court by tomorrow. On the face of such undertaking, the matter hag been taken up for hearing on representation made by Mr. Kundu. This court before scrutinising the impugned order has looked into the pith and substance of the connected petition on which the impugned order has been passed. It cannot be denied that the mid petition has been inarticulately drafted. The draftsman being infected by the fever of Civil Procedure Code and without castigation of the implication, the mid petition has been drafted and the prayer has been couched in a manner which has created problem resulting in passing of the impugned order.

(2.) Before dealing with the merits of the instant application, it is necessary to refer to the provisions of the parent Act and section 3(2) of the Recovery of debt due to the Bank and Financial Institution Act specifically contemplates that Central Government shall specify in the notification referred to in sub-section (1) the area within which the Tribunal may exercise jurisdiction for entertaining and deciding the application filed before it. Unfortunately, none of the learned Advocates has referred to the mid provisions but the aforesaid section 3(2) has germane significance which signify that before entertaining and deciding application filed before the tribunal, it must have territorial jurisdiction within the area covered by the notification. Though the provisions of the aforesaid section are exfacie clear but implication can be derived from the reported decision in AIR 1965 SC page 336 where it has been laid down by the apex court that the court having no jurisdiction over the subject matter of the suit cannot decide any question on merit. This court in exercise of its power of superintendence over the Tribunal has given an anxious thought and consideration with regard to the procedure to be followed by the Tribunal and the same cannot be dubbed as uncanalised power without being fettered by any restriction. The procedures have been laid down in sections 19 and 22 of the Act and Clause (2) of section 22 makes it manifestly clear that there is circumscribed application of Civil Procedure Code. In the back drop of the same, this court is constrained to observe that one may land oneself into the welter of confusion if one wants to invoke all the provisions of the Civil Procedure Code save and except specifically covered by Clauses (2) of section 22 coupled with the application of principles of natural justice. It is significant to refer to the provisions as laid down by way of prefix in section 19(1) of the Act that contemplates filing of an application to the Tribunal within the beat limits of whom jurisdiction the defendant actually and voluntarily resides or carries on business or personally works for gain or there is came of action wholly or in part arising within the said territorial jurisdiction. Mr. Dasgupta the learned Advocate appearing on behalf of the petitioner has referred to and drawn attention of this court to plethora of documents annexed to the supplementary affidavit showing therein that the amount on which the loan exists is situated at Agartala Branch of Punjab and Sind Bank. It has also been submitted that all the documents entered into resulting in granting of loan that can be constituted as cause of action have also arisen in Agartala. Thereafter some of the anexures from the supplementary affidavit have been shown from which it appears that spur train the column of station being filled up at Agartala, it is mentioned that presently the petitioners are residing at same place of Rajoli Garden at New Delhi. In the backdrop of the same, the question arises for scrutiny. This court will not get itself bogged down within the sphere of the Civil Procedure Code but it feels that the entire question of jurisdiction has to be decided because of the satisfaction arrived at about presence of Clauses (a) to (c) of section to 19(1) coupled with section 3(2) of the Act. Section 3(2) though overlooked by the learned counsels makes it mandatory within which the Tribunal may function. The same has to be seen in the light of the provisions that a party, namely, the Bank cannot make an application to the Tribunal within the local limits whom jurisdiction it can lodge the claim. Therefore, one need not have to go either to the provisions of Civil Procedure Code or of the procedure otherwise laid down but there appears to be a bar of entertainment of an application for recovery of debts by the Tribunal unless the same arises within the Jurisdiction of the said Tribunal. More the concerned activist in the arena of the litigation plunged into the vertex of controversy either stemming from the Civil Procedure Code or from other statutes, they cannot but oscillate between the warp and weft of confusion. The confusion is required to be clarified by taking recourse to the satisfaction to be derived by the Tribunal from section 19(1) (a) to (c) coupled with section 3(2) of the Act. If the Tribunal has no jurisdiction then it cannot go into the question of merit of the application because same will be enforced and exercised in futility. This court has already pointed out that because of inarticulate drafting of the connected petition and low level of understanding of the parameter of the exercise, the same is resulting in confusion. The said confusion is required to be set at rest with regard to the procedures. The same has got no nexus with the controversy of the preliminary point as understood under section 14(2) of the Code of Civil Procedure. The Tribunal at the threshold of the commencement of the proceeding must be satisfied from the pleading, concerned of the respective parties whether it has territorial jurisdiction within the meaning of section 19(1) as otherwise it cannot go in to the question of merit. A futile exercise is not to be encouraged by the Tribunal that has to be set up for the specific purpose for the expeditious disposal and resolution of disputes. It should not get itself entangled in the procedural wrangling by purported reference to extraneous provisions but it should confine itself to the spirit of the Act, namely, the Recovery of debt due to Book and Finance Act. Therefore, the Tribunal before embarking into the domain of scrutiny about the merits, must record its satisfaction about the territorial jurisdiction as spell out in the notification under Clause (1) of section 3 of the Act coupled with application of the yardstick as adumbrated in Clauses (a) to (c) of section 19(1) of the said Act. Therefore, the Debt Recovery Tribunal is hereby directed to consider the said question by formation of its satisfaction on an objective basis as per parameter as forecast in Clauses (a) to (c) of section 19 to entertain the application and need not have to ponder on the question of preliminary point of jurisdiction as provided under the Civil Procedure Code. The Tribunal being a creature of the statute, it must function within the parameter of the statute and it should follow the procedure by forming satisfaction that it can entertain the application before it embarks into the domain of merit. Accordingly, the Debt Recovery Tribunal in OA/60/96 is hereby directed to record its satisfaction on the objective basis in terms of the guidelines as indicated hereinbefore about its territorial jurisdiction and then proceed on the merit of the application. The instant application thus stands disposed of in modification or super session of the impugned order. The said direction is required to be followed in adoptation of procedure in every case that the court has indicated after giving its anxious consideration of the question.

(3.) The application is thus disposed of. Application disposed of.