ANAND KUMAR Vs. DHANI RAM AND ORS.

JUDGEMENT

(1.) THIS petition under Section 115 of the Code of Civil Procedure has been filed by Seth Anand Kumar, Defendant No. 3, who seeks a revision of the order dated 22nd of December, 1977, passed by the trial Court holding that the suit for the recovery of Rs. 1,68,539.22 instituted by the Plaintiff -firm named Messrs Dhani Ram Suresh Kumar and Company, which carries on business at Bhatinda, is maintainable and that the jurisdiction of the civil Courts to entertain it is not barred by the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 (hereinafter referred to as the Act). The amount claimed consists, according to the allegations made in the plaint, of dues in respect of transactions of purchase of cotton entered into by the Plaintiff -firm for and on behalf of Lord Krishna Textile Mills, Saharanpur, Defendant No. 1, which is one of the mills covered by the Act (and is hereinafter referred to as the sick mill). Those transactions are alleged to have taken place between the 3rd of December, 1971, and 1st of February, 1972.

(2.) THE Plaintiff's suit was instituted on the 16th of March, 1973, that is, more than a year before the Act came into force.

(3.) (5) One basic principle has to be borne in mind in deciding the matter in controversy and that is that the ouster of the jurisdiction of the Civil Courts is not to be readily inferred. On the other hand, the law is well settled that the provisions from which such an ouster may be inferred need not be express in terms but may bar the jurisdiction of the Civil Courts by necessary implication. Such implication has been read into various Acts, if they are exhaustive in nature and deal with practically all situations in which a claimant may seek a remedy. The conferment of the right of appeal on a claimant dissatisfied with the decision of the Tribunal created under such an Act has been held to be a very relevant consideration (see Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh : A.I.R. 1964 S.C. 322. Now the scheme of the Act which the Petitioner invokes no doubt envisages the examination and admission or rejection of claims made by various claimants and also provides for a right of appeal. How -ever, the provisions of Sub -section (2) of Section 22 read with those of Section 5 of the Act impel me to come to the conclusion that no ouster of the jurisdiction of the Civil Courts is intended. Under Section 5 the liabilities of the owner of a sick textile undertaking are declared to remain his liabilities even after the commencement of the Act and it is specifically stated that those liabilities shall be enforceable against him. Now if the Act provided a machinery for the enforcement of all such liabilities against the owner, the case of the Petitioner might be unexceptionable. As it is, the only liabilities of which the enforcement is completely provided for under the Act are those falling under category I specified in the second Schedule. The payment of other liabilities is contingent on the amount of Rs. 69,92,000, being sufficient to meet them. If it is not so sufficient, the Commissioner will just not go into them. That is what Sub -section (2) of Section 22 states. The situation thus boils down to this. If the money placed at the disposal of the Commissioner be sufficient to meet all liabilities, he will determine them and pay them off. If the amount is not so sufficient, he would not touch those of the liabilities with a pair of tongs as he has not the wherewithal to pay off. In the latter situation the claimants must have of necessity to go to the Civil Courts, the ouster of whose jurisdiction in their case cannot only not be inferred but must be held not to have been intended. And if that be so, Section 29 read with the scheme of the Act cannot be interpreted so as to oust the jurisdiction of the Civil Courts in respect of any matters whatsoever, no distinction having been drawn by that section in the case of the two types of liabilities, i.e., those falling under category I and those coming under other categories.