Navaniti Pd. Singh, J.
1. The present application is by the defendants in the Court below against order dated 31.8.2006 passed by Sub Judge XI, Patna in Title Suit No. 49 of 2000 filed by the plaintiff opposite party. By the aforesaid order, the learned trial Court refused to decide the question of maintainability of the suit as a preliminary issue under Order 14, Rule 2(2) of CPC read with Section 151 of CPC.
2. The primary ground of attack to the maintainability of the suit is based on Sections 17 and 18 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993.
3. Heard Shri Ajay Kumar Sinha, learned Advocate appearing on behalf of the defendant-Central Bank of India, the petitioner before this Court and Shri Binay Kumar Singh, learned Advocate appearing for the plaintiff, opposite party before this Court.
4. It is submitted on behalf of the defendant petitioner that in view of the provisions of the Debts Recovery Tribunal Act, it was open to the plaintiff opposite party to raise all the issues before the Tribunal including counter claim, if any, and having failed to do so, the suit would not be maintainable. If such an issue is framed and decided as a preliminary issue, it could dispose of the suit itself. To the contrary, it is submitted by the learned Counsel for the plaintiff opposite party that Title Mortgage Suit No. 119 of 1978 was originally instituted by the Bank in the civil Court which, by virtue of provision of Section 31 of the said Act, was transferred to the Debt Recovery Tribunal. Be fore the Debt Recovery Tribunal, the plaintiff opposite party appeared and contested. Ultimately, certificate was issued on 23.7.1999. at that time, there was no provisions for setting up the claim in respect of counter claim and/or set off which was introduced by the Recovery of Debts due to the Banks and Financial Institutions (Amendment) Ordinance 2000 with effect from 17.1.2000 (which later was replaced by an Amending Act). It is submitted that this being the position, the suit was maintainable. On behalf of the defendant-petitioner, strong reliance was placed on the judgment of Apex Court in the case of United Bank of India v. Abhijit Tea Co. Pvt. Ltd. and Ors. : AIR2000SC2957 whereas on behalf of plaintiff opposite party, reliance was placed on the case of Indian Bank v. ABS Marine Products Pvt. Ltd. 2006 (3) Supreme 647 since reported also in : AIR2006SC1899 .
5. The short facts giving rise to the present application need to be noted. In 1978, petitioner-Central Bank of India filed Title Mortgage Suit No. 119 of 1978 against the opposite party for realisation of its money with interest pendente lite and future till realisation. While the suit was pending, in 1998, by virtue of Section 31 of the Act, the suit was transferred to the Debt Recovery Tribunal, Bihar at Patna and registered as P. T. Case No. 241 of 1998. Before the Debt Recovery Tribunal, parties appeared and raised objections. It is not disputed that the debtor did raise a counter claim but the same was not adjudicated upon by the Tribunal as it was powerless in the said matter. The debtor pleaded that they had entered into financial accommodation with the bank on executing equitable mortgage by deposit of title deed. The various stock inventories were pledged to the bank which the bank got insured. Due to devastating floods in August 1975, the debtor incurred serious losses to meet which certain further limits were enhanced but then the bank stopped honouring the documents and adjusting everything against outstanding leading the debtor industry being crippled. The bank then filed another Title Mortgage Suit for recovery of about nine lacs and odd being Title Mortgage Suit No. 10 of 1979 after having filed the present title Mortgage Suit in the year 1978. The debtor had raised claims against the bank for value of goods which were pledged to the bank and were destroyed while in custody of the bank. While the suit was pending, the debtor alleged that efforts were made for negotiated settlements. Compromise agreement was drawn up. The debtor signed the same and made certain payment. It was alleged that it was signed by some bank personnel also but for some reason, the same could not be filed by the bank and the proceedings could not be disposed of on basis of the compromise for failure of bank to act. Ultimately in 1998, the proceedings were transferred to the Debts Recovery Tribunal, Patna and registered as P T Case No. 241 of 1998 in view of Section 31 of the said Act and immediately thereafter by judgment and order dated 23.7.1998, the Debts Recovery Tribunal decreed the Mortgage Suit and granted certificate for recovery. Pursuant thereto, recovery proceedings were registered as R.P. Case No. 79 of 1999 by the Recovery Officer of the Debt Recovery Tribunal. The claim of the debtor both with regard to set off and counter claim having not been adjudicated by the Debt Recovery Tribunal, they were left with no option but to file the present suit being Title Suit No. 49 of 2000 on 24.01.2000. In the said suit, the debtor, inter alia, prayed for a direction to the bank to return the pledged and seized hypothecated materials kept under their lock and key and for appointment of Advocate Commissioner to ascertain the value thereof and direct the bank to pay the same.
6. The defendant-petitioner-bank, pursuant to notice, appeared and filed their written statement. They also filed application under Order 7, Rule 11 of C.P.C. for rejecting the plaint on the ground that the suit was not maintainable. On a technical ground, the trial Court, by its order dated 1.5.2003, rejected the said petition of the petitioner-bank. As such, on 30.5.2003, the defendant-petitioner-bank filed another application under Order 7, Rule 11 for rejecting the plaint on the ground that the suit was not maintainable. By a considered order of the trial Court dated 4.4.2005, the application of the defendant-petitioner-bank, as aforesaid, was rejected. The said order was challenged before this Court in civil revision No. 1281 of 2005 in which after hearing the parties, the civil revision, it is now stated, was dismissed.
7. It appears once the application under Order 7, Rule 11 of C.P.C. was rejected on 4.4.2005. the bank then filed a petition under Order 14, Rule 2(2) of C.P.C. on 8.6.2005 for deciding the issue of maintainability of suit as a preliminary issue as, in their submission, the suit was barred in terms of Sections 17 and 18 of the said Act. This application has been rejected by the impugned order dated 31.8.2005 bringing the defendant-petitioner to this Court.
8. In order to appreciate rival contentions, I may note certain provisions of the said Act before its amendment in 2000 and after its amendment. Section 2(g) reads as under:
'(g) 'debt' means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application;
(g) 'debt' means any liability (inclusive of interest) which is alleged as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or whether payable under a decree or order of any Civil Court or otherwise and subsisting on, and legally recoverable on, the date of the application;
9. The difference in the pre and post amendment in the said definition is the inclusion of mortgage which was earlier not there.
Sections 17 and 18 reads as under:
17. Jurisdiction, powers and authority of Tribunals.—(1) A Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions.
(2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act.
18. Bar of Jurisdiction.—On and from the appointed day, no Court or other authority shall have, or be entitled to exercise, any jurisdiction powers or authority (except the Supreme Court, and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution) in relation to the matters specified in Section 17.
10. Section 19 was substituted by new Section 19. Earlier various provisions were lacking especially with regard to a debtor's claim for set off and/or counter claim, the validity of proceedings before the Tribunal and the law in this regard was challenged on the ground that the procedure was prima facie unreasonable inasmuch as the bank on one hand could recover its money in a summary proceeding before the Debts Recovery Tribunal but if the debtor had a claim of set off and/or counter claim, it could not do so but had to file a suit and during pendency of the suit it would have to pay off the dues of the bank as certified by the Tribunal. It is because of this challenge that the legislatures amended Section 19 which, as noticed above, for the first time provided for the Tribunal to consider the claim of set off and/or counter claim. These provisions came in effect not before 17th January 2000. This date is material as by then the Debts Recovery Tribunal had already disposed of the proceedings by its judgment and order dated 23.7.1999 and a recovery proceeding for enforcing the certificate had already been instituted. On behalf of defendant-petitioner-bank, strong reliance was placed in the case of United Bank of India AIR 2000 SC 2957 (supra) for the proposition that in terms of Sections 17 and 18 of the Act, the jurisdiction of the civil Court was barred and the Courts were bound to take judicial notice of the said provisions. In the said case, the Apex Court also held that counter claim which is equated to a cross suit was also to be transferred to the Tribunal. The said judgment was rendered in view of the un-amended provisions of the aforesaid Act. On behalf of the opposite party, reliance has been placed on a latter decision of the Apex Court in the case of Indian Bank AIR 2006 SC 1899 (supra) wherein the Apex Court has held that suits by the borrower were not barred. It was held that even after amendment, the suits could not be barred as the remedy under Sections 19(6) to (11) were merely enabling provisions. They did not provide for exclusive remedy and did not deprive the borrower of his remedy of suit or any other appropriate remedy in respect of their claims against the bank. Their Lordships have extensively dealt with the earlier judgment of the Apex Court in the case of United Bank of India AIR 2000 SC 2957 (supra) and has virtually held that the directions issued by the Apex Court in United Bank of India's case were with reference to Article 142 of the Constitution. In Paragraph 25 of Indian Bank's case AIR 2006 SC 1899 (supra)(as reported in Supreme Court Cases), the Apex Court has held as follows:
25. Though there appears to be some merit in the first respondent's submission, we do not propose to examine that aspect. Suffice it to clarify that the observations in Abhijit that an independent suit of a defendant (in the bank's application) can be deemed to be a counter claim and can be transferred to the Tribunal, will apply only if the following conditions were satisfied:
(i) The subject-matter of the bank's suit, and the suit of the defendant against the bank, should be inextricably connected in the sense that decision in one would affect the decision in the other.
(ii) Both parties (the plaintiff in the suit against the bank and the bank) should agree for the independent suit being considered as a counterclaim in the bank's application before the Tribunal, so that both can be heard and disposed of by the Tribunal.
In short the decision in Abhijit is distinguishable both on facts and law.
11. In that case, the Calcutta High Court, in its original side, had refused to transfer proceedings as instituted by the borrower to the Tribunal which again was upheld by the Apex Court.
12. That having considered the aforesaid decision, I am of the considered view that the impugned order requires no interference inasmuch as first the challenge as to maintainability of suit having been taken by the bank in an application under Order 7 Rule 11 of C.P.C. having been rejected by the trial Court and by this Court, as noticed above, the present application for deciding the same very issue as a preliminary issue under Order 14, Rule 2(2) of CPC cannot be permitted as that would permit the bank to achieve indirectly what they fail to get directly. Secondly, the question of maintainability having been decided by the Apex Court in its latest judgment in the case of Indian Bank AIR 2006 SC 1899 (supra), it cannot be said that the suit is not maintainable. The earlier decision of the Apex Court in the case of United Bank of India AIR 2000 SC 2957 (supra) has been considered in detail in the latter judgment and it has been held that a suit of the nature, with which we are dealing with, would be maintainable notwithstanding the provisions of Sections 17, 18 and 19 of the Debts Recovery Tribunal Act.
13. In that view of the matter, I find no merit in this application and it is, thus, dismissed.