ORDER
S.A. Bobde, J.
1. This Chamber Summons is taken out by the Defendant, Harashadrai Odhavji Mody, for a direction that the execution application filed by the plaintiff, Bank of India, which holds a decree against it, be in effect retained in this Court and not be transferred to the Debt Recovery Tribunal under the provisions of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (hereinafter referred to 'the RDB Act').
2. The facts in brief are that on 16th October, 1996 the Bank of India obtained a decree before the High Court of Justice, Queen's Bench Division at England in the sum of Rs. 2,47,82,743.40 ps. The Plaintiff Bank then put the decree into execution before this Court along with the certified copy on 6th May, 1998. The Debt Recovery Tribunal had not been constituted then. On 16th July, 1999 the constitution of the Debt Recovery Tribunal was notified. Thus execution application was being transferred to the Debt Recovery Tribunal when the Defendant erroneously made an application for speaking to the minutes of an administrative order by which all matters filed by Bank and Financial Institutions were being transferred to the Debt Recovery Tribunal. This Court directed the Defendant to take out a Chamber Summons for retaining in respect of this matter which was slated for transfer to the Debt Recovery Tribunal. Admittedly the papers have not yet been transferred to the Debt Recovery Tribunal and they are in this Court. Upon liberty granted as aforesaid, the Defendant has taken out this Chamber Summons.
3. The only point for consideration before this Court is whether the decree obtained by the Plaintiff, Bank of India, can be executed under Section 44A of the Code of Civil Procedure, 1908 or in view of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993, must be executed in accordance with the provisions of that Act. It is, therefore, necessary to set out certain provisions of the RDB Act which are as follows :--
'Section 2(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.'
'Section 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.' 'Section 34. Act to have over-riding effect. -- (1) Save as otherwise provided in Sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948). The State Financial Corporation Act, 1951 (63 of 1951), The Unit Trust of India Act, 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984) and the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) and the Small Industrial Development Bank of India Act, 1989.'
Thus, it is clear that if the present execution application is by the Bank, which is admittedly a bank within the meaning of Section 2(b) of the RDB Act, is an application for recovery of debt due to the Bank then in view of Section 17 it is the Tribunal alone which will have the jurisdiction to entertain and decide the execution application.
4. On the first question whether it is a debt within the meaning of Section 2(g) of the RDB Act, it was contended by Mr. Rana, the learned Counsel for the Judgment Debtor that though the amount in question satisfies the definition of debt in all other respect, since however the claim of the Bank is under a Decree or order it falls outside the definition of debt. According to the learned counsel, the amount would be a debt, if it is payable under a decree or order of any Civil Court in India and not that of a superior Court of a reciprocating territory as contemplated by Section 44A of the Code of Civil Procedure. There is no doubt that the superior Court of a reciprocating territory contemplated by Section 44A of the Code of Civil Procedure would not ordinarily be construed to be a Civil Court. However, Section 44A(i) of the Code of Civil Procedure reads as follows :--
'Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.'
Thus it is clear that the Parliament has intended that a decree of a superior Court of any reciprocating territory, for the purpose of its execution in India must be, for the purpose of its execution in India treated as a decree passed by a District Court in India. It is well settled that where such a fiction is created it must be given effect to for all purposes. This proposition was stated by Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) Pri Cou 109. The relevant portion reads as follows:--
'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'
This principle has been adopted and applied by the Supreme Court of India in : AIR1986SC137 . There is therefore no force in the contention that the amount is not payable under a decree of a Civil Court and that the amount claimed by the decree holder Bank is not a debt within the meaning of Section 2(g) of the RDB Act.
5. Section 44A of the Code of Civil Procedure makes it clear that the foreign decree may be executed in India as if it has been passed by the District Court. Thus the original character of a foreign decree is not of any consequence and the amount 'payable under the decree or order of any Civil Court' may be treated as payable within the meaning of Section 2(g) of the RDB Act.
6. The next contention on behalf of the Judgment Debtor is that Section 44 contains an independent scheme which is different from the scheme for execution of ordinary decree. Therefore, though the effect of Section 17 of the RDB Act may be that an application for execution of an ordinary decree can only be entertained and decided by the Debt Recovery Tribunal, an application for execution of a foreign decree under Section 44A cannot.
7. Before examining this contention, it would be worthwhile to take note of the position in law settled by the Supreme Court of India in Allahabad Bank v. Canara Bank and Anr. AIR 2000 SC 1535 in which the Supreme Court has held that an application for recovery of a debt under the RDB Act comprises two stages namely (a) the adjudication of the liability of the alleged debtor by the Tribunal and (b) execution of the certificate of recovery issued by the Recovery Officer under the Act. In paragraph 25, the Supreme Court has observed as follows :--
'Thus, the adjudication of liability and the recovery of the amount by execution of the certificate are respectively within exclusive jurisdiction of the Tribunal and the Recovery Officer and no other Court or authority much less the Civil Court or the company Court can go into the said questions relating to the liability and the recovery except as provided in the Act'
The Supreme Court has further observed that all such applications including application for execution shall stand transferred to the Tribunal and will have to be disposed of in the same manner as applications under Section 19 of the RDB Act.
8. To turn now to the above mentioned submission on behalf of the Defendant Bank, there appears no reason in law to differentiate between an execution proceeding taken out by a holder of a decree of a foreign Court and execution application taken out by a decree holder of a decree of a domestic Court for the purpose of determining the jurisdiction of the DRT to entertain an application for recovery of a debt under the RDB Act. Mr. Rana, learned Counsel for the Judgment Debtor relied upon a decision of the Supreme Court in M. V. AL Quamar v. Tsavliris Salvage (International) Ltd., and Ors., : AIR2000SC2826 , in which the Supreme Court has considered the distinction between the mode of execution of a domestic decree and that of a foreign decree. In that case the issue was not whether a foreign decree can be put in execution under the Code of Civil Procedure or whether it can be executed under the RDB Act. The question was whether a foreign decree granted by a superior Court in England in its admiralty jurisdiction can be executed against a ship in the territorial waters of Andhra Pradesh. While considering the said question. Their Lordships observed that there are two distinguishing features between foreign decree and the domestic decree. Firstly, that as regards domestic decrees, the transferee Court is deemed to be a Court competent to execute such a transferred decree, if at the time of making the application for transfer of decree it is shown to have jurisdiction to try the suit in which such a decree was passed. Whereas, in regard to a foreign decree Section 44A does not require the District Court in which the decree of any superior Court of a foreign territory is submitted for execution by a foreign decree holder must be a Court which could have been competent to pass such a decree if in the first instance such a suit was filed by a foreign national against another foreign national in India. Secondly, Their Lordships observed that whereas a transferee Court under Section 39 which is called upon to execute an Indian decree passed by a Competent Court against the Judgment Debtor cannot permit the Judgment Debtor to go behind the decree, Section 44A expressly permits the foreign decree to be questioned before an executing Court in India on any of the ground mentioned in Clauses (a) to (f) of Section 13.
9. In view of the provisions of Section 44A(1) which requires that a foreign decree may be executed in India as if it has been passed by the District Court it does not appear necessary to consider the difference between the execution of the domestic decree and foreign decree by the transferee Court in India. A domestic decree must necessarily be executed in accordance with the law in relation to execution of such decree in India. A foreign decree by virtue of Section 44A(1) must also be so executed in accordance with the law in India. Thus for the purpose of ascertaining whether a foreign decree is liable to be executed only under the provisions of RDB Act the difference between the two kinds of decree would be of no significance.
10. Having regard to the clear terms in which Section 17 is couched and the interpretation placed on the scheme of the RDB Act by the Supreme Court in Allahabad Bank v. Canara Bank (supra), it is clear that the execution of a decree whether domestic or foreign are in the nature of an application for recovery of a debt and must be entertained and decided by the DRT alone and its Recovery Officer only under the scheme of the RDB Act.
11. Mr. Rana, the learned Counsel for the Judgment Debtor next contended that there is an inherent difference between the nature of objection that can be raised by a Judgment Debtor of a foreign decree and a Judgment Debtor of a domestic decree. According to Mr. Rana a foreign decree may be objected to by the Judgment Debtor on the grounds enumerated in Section 13 of the Code of Civil Procedure, which provides as follows :--
'13. When foreign judgment not conclusive. -- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except:--
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of (India) in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on breach of any law in force in India.'
12. According to the learned counsel the DRT has no power to entertain an objection to the decree on any of these grounds and therefore a Judgment Debtor of a foreign decree would suffer prejudice in that he would not be able to raise the grounds available to him under Section 13 of the Code of Civil Procedure. This submission is based on the powers of the DRT under Section 22 of the RDB Act, which reads as follows :--
'22. Procedure and Powers of the Tribunal and the Appellate Tribunal. -- (1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings. (2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely :--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) reviewing its decision;
(f) dismissing an application for default or deciding it ex pane;
(g) setting aside any order of dismissal of any application for default
or any order passed by it exparte; (h) any other matter which may be prescribed.
(3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code (45 of 1860) and the Tribunal or the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
13. In short the submission is that the only ground on which the objection can be raised is on the ground of natural justice and no other. According to the learned Counsel, therefore, the legislative scheme of the Parliament may be interpreted in such a manner to preserve the right of the Judgment Debtor to raise objection which he is entitled to raise under Section 13 of the Code of Civil Procedure.
14. Mr. Tulzapurkar, the learned Counsel appearing for the decree holder strongly opposed this interpretation which in effect ripples the power of the DRT of consider objection to the decree. He relied on a decision of the Supreme Court of India in Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. and Ors., : [1999]3SCR759 , where the Supreme Court in paragraph 11 has observed as follows :--
'11. We, however, do not agree with the reasoning adopted by the High Court. When Section 22 of the Act says that the Tribunal shall not be bound by the procedure laid by the Code of Civil Procedure, it does not mean that it will not have jurisdiction to exercise powers of a Court as contained in the Code of Civil Procedure. Rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice. Contrast Section 22 of the Act with Section 13(4) of the Consumer Protection Act, 1986 which vests certain powers on the authorities under the Act;
'(4) For the purposes of this section the District Forum shall have the same powers as are vested in Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely :--
(i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed.'
In this view of the matter an application for execution of a foreign decree when made to the Tribunal or upon transfer under Section 19 of the RDB Act would be decided according to the powers of the Tribunal which, as held by the Supreme Court, includes all the powers of a Court as contained in the Code of Civil Procedure and also beyond the Code, fettered only by requirement of natural justice. I, therefore, hold that the DRT can entertain an objection to the execution of a foreign decree on the ground enumerated in Section 13 of the Code of Civil Procedure while considering an application under Section 44A of the Code of Civil Procedure.
15. The next contention on behalf of the Judgment Debtor is that the Section 44A is a special law which governs the execution of a foreign decree. According to the learned Counsel the RDB Act is a general law. Hence the procedure provided by the special law must prevail over the general. It is not possible to accept this contention in view of the fact that RDB Act is indeed a special law enacted under Entry 45 of List-1 of the 7th Schedule to the Constitution of India for the purpose of enabling only the Banks and Financial Institutions to recover debts due to them. Since both laws must be deemed to be special laws, the principle that must be applied is the one applied by the Supreme Court on several occasions. Mr. Tulzapurkar, learned Counsel for the Plaintiffs relied on a recent decision of the Supreme Court in the case of Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and Ors., : [2001]1SCR932 , in which the Supreme Court vide paragraphs 9 and 10 has observed as follows :--
'9. It is clear that both these Acts are Special Acts. This Court has laid down in no uncertain terms that in such an event it is the later Act which must prevail. The decisions cited in the above context are as follows :--
Maharashtra Trucks Ltd. v. State Industrial and Investment Corporation of Maharashtra Ltd., (1993) 1 SCC 144 = 1993 AIR SCW 991; Sarwan Singh v. Kasturi Lal, : [1977]2SCR421 ; Allahabad Bank v. Canara Bank, : [2000]2SCR1102 and Shri Ram Narain v. Simla Banking Industrial Co. Limited, : [1956]1SCR603 . 10. We may notice that the Special Court had in another case dealt with a similar contention. In Bhoruka Sleet Lid. v. Fairgrowth Financial Service Ltd., (1997) 89 Com Cas 547 it had been contended that recovery proceedings under the Special Court Act should be stayed in view of the provisions of the 1985 Act. Rejecting this contention, the Special Court had come to the conclusion that the Special Court Act being a later enactment would prevail. The head-note which brings out succinctly the ratio of the said decision is as follows :-- 'Where there are two special statutes which contain non obsolete clauses the later statute must prevail. This is because at the time of enactment of the later statute, the legislature was aware of the earlier legislation and its non obstante clause. If the Legislature still confers the later enactment, with a non obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply.'
In this regard it is important to note the provisions of Section 34 of the RDB Act, which reads as follows :--
'34. Act to have over-riding effect. -- (1) Save as otherwise provided in Sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State Financial Corporation Act, 1951 (63 of 1951), the Unit Trust of India Act, 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984) and the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) and the Small Industries Development Bank of India Act, 1989.'
16. There is thus no merit in the contention that Section 44A must in the circumstances be allowed to prevail over and in derogation of Section 17 and other related provisions of the RDB Act. It appears to me that harmony could be best achieved by taking the view that an execution of a foreign decree, where the decree holder is a Bank or Financial Institution, must be entertained by the Tribunal under the provisions of the RDB Act and while doing so, the Tribunal would be entitled to exercise all the powers which the District Court would have exercised under the Code of Civil Procedure. In Solidaire India Ltd. (supra) the Supreme Court has observed that:--
'It is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed then the latter must be adopted.'
17. Mr. Rana, learned Counsel for the Judgment Debtor lastly relied on a decision of a learned Single Judge of this Court in I.C.I.C.I. Ltd. v. M. F. V. Shilpa and Ors., 2002 104(1) Bom.LR. 724 in which it is held that by virtue of Article 225 of the Constitution of India read with Section 51 of the Merchant Shipping Act, 1956, the Admiralty jurisdiction of the High Court remains unaffected by passing of the RDB Act. While taking the said view the learned Single Judge has observed that the Admiralty Jurisdiction of this Court necessarily extends to the economic zone where Riggs are located or vessel financed by the Bank sail, and has further observed that the DRT would have no jurisdiction in the said zone. It appears that the facts and the Legislative scheme is different and therefore, the Judgment in that case would be of no assistance in determining the issue in this case.
18. Thus having regard to the provisions of Section 17 which states that on and from the appointed day the jurisdiction, powers and authorities to entertain and decide application for recovery of debt due to such banks and financial institutions shall be exercised by the Tribunal and the scope of powers of the Tribunal under Section 22 of the RDB Act. I am of the view that the execution of a foreign decree must be heard and tried by the Tribunal since it is within the jurisdiction of that Tribunal to do so. Therefore, the present execution application, which falls within the jurisdiction of the DRT must be transferred to the said Tribunal immediately.
19. In the result, Chamber Summons is dismissed. However, in the circumstances of the case, there shall be no order as to costs.
20. Learned counsel for the Judgment Debtor prays for stay of the Order of transfer of Execution Application No. 138 of 1998 to the Debt Recovery Tribunal for a period of six weeks. In view of the fact that the Execution Application has been pending since 1998 in respect of a Decree of the year 1996 and in view of the fact that the transfer to the Debt Recovery Tribunal is by operation of law, prayer for stay is rejected.
P. A. to give ordinary copy of this order to the parties concerned.