N.K. Kapoor, J.
1. This shall dispose of two civil revisions bearing Nos. 4365 and 4366 of 1996 as these raise common question of law and-fact Reference is being made to the facts as given in Civil Revision No. 4365 of 1996.
2. The petitioner has sought issuance of appropriate directions for setting aside the order dated August 20, 1996, annexure P-8, and August 26, 1996, annexure P-10, whereby suit for recovery has been transferred to the Debts Recovery Tribunal, Jaipur, instituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, by invoking the supervisory powers of this court.
3. Briefly put, as per the case of the petitioner, it is a private limited company having its registered office at Amritsar. It is the case of the petitioner that some commercial land was allotted by the Improvement Trust, Amritsar, some time in the year 1973 and with a view to develop the same for the purpose of carrying on the business of cinema, a loan in the sum of Rs. 25 lakhs was initially sought from respondent No. 2-Punjab and Sind Bank through its regional manager, branch office, Amritsar. To provide security to the bank, the property along with the building, fixtures, machinery and other articles were mortgaged with the bank. It was further agreed between the parties that approximately 3,800 square feet of the area of the ground floor of the premises was to be occupied by the bank. Rent for the area was agreed to be adjusted against the loan instalments from November, 1977. It is further the case of the petitioner that the remaining part of the land was to be carved into 59 air-conditioned shops which were to be constructed out of the additional loans which were to be advanced by the respondent-bank. However, according to the petitioner, the said loan was never given whereas the petitioner got the shops constructed out of its own funds. The shops were completed in the year 1977 and as per the power of attorney dated November 26, 1976, these could be rented out by the bank authorities. However, they failed to rent out the shops and so adjusted the rent against the loan instalments. According to the petitioner, the rent of the aforesaid shops was approximately Rs. 1,95,000 per month as per assessment annexure P-1 and this amount was to be adjusted by the respondent-bank towards the loan instalments. The bank, however, instead of settling the account of the petitioner on the basis of rent of the shops, filed a suit for recovery of Rs. 1,13,31,666 along with costs and future interest at the rate of 191/2 per cent. per annum. Along with the suit, prayer was made for attachment of the property in terms of Order 38, Rule 5 of the Code of Civil Procedure (for short 'the Code') and a restraintorder as envisaged under Order 39, Rules 1 and 2 of the Code. Prayer was also made for appointment of receiver under Order 40, Rule 1 of the Code. The court, vide order dated September 19, 1990, granted the injunction as prayed for as well as appointed a receiver of the property. The order of appointment of receiver was challenged by the petitioner and the matter is pending adjudication in F. A. O. No. 810 of 1990.
4. It is the case of the petitioner that in his written statement, he has taken up various pleas including the one that the bank has remained in occupation of the premises since 1977 whereas the rent of the premises had not been settled so far. During the pendency of the suit, the petitioner filed an application under Order 6, Rule 17 of the Code for amendment of the written statement on February 22, 1992, annexure P-3, wherein a specific plea of the counter-claim was incorporated. According to the petitioner, application for amendment of written statement seeking incorporation of a counter-claim as envisaged under Order 8, Rule 6-A of the Code had not been decided by the court and the court, vide the impugned order annexure P-8 transferred the case file to the Debts Recovery Tribunal, Jaipur. Even the application for reconsidering the matter in terms of Order 47, Rule 1 read with Section 151 of the Code too had been dismissed, vide order dated August 26, 1996, annexure P-10. Hence, the present revision petition.
5. The petitioner has assailed the orders dated August 20, 1996, annexure P-8 and August 26, 1996, annexure P-10, on a number of grounds, namely, (i) that the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act'), nowhere provides that in case there is a counterclaim, the Tribunal will have the powers to decide such a claim ; (ii) that the Debts Recovery Tribunal is a Tribunal of limited jurisdiction and so has no jurisdiction to decide the counter-claim set up by the petitioner ; (iii) that as per Section 17 of the Act, the Tribunal can entertain and decide only the application filed by the banks and financial institutions for recovery of debts due to such banks and it nowhere provides for vice versa powers ; (iv) that the Tribunal is only to be guided to follow the procedure laid down by the Code of Civil Procedure ; (v) that as per Section 31 of the Act, when an appeal is pending before any court, the provisions of Section 31 of the Act are not applicable. In the instant case, first appeal bearing No. 810 of 1990 having been admitted by this court, the suit could not be transferred to the Debts Recovery Tribunal, Jaipur.
6. After hearing learned counsel for the petitioner for a while, it was thought appropriate to issue notice to respondent No. 2-Punjab and Sind Bank only at this stage. In pursuance of the notice issued, Mr. Anand Chhibbar, advocate, put in appearance on behalf of the respondent-bank. Respondent No. 2 has, however, not chosen to file a reply to the petition. This was again put to the senior counsel representing respondent No. 2while he was arguing whether the bank intended to file reply with a view to controvert the facts as averred in the petition. Instead of answering so continued with his submissions and so it can be taken that the bank does not wish to file reply.
7. According to learned counsel for the petitioner, an application dated February 22, 1992, under Order 6, Rule 17 read with Sections 151, 152 and 153 of the Code was filed by the petitioner with a view to seek amendment of the written statement. Vide the proposed amendment, certain paras, of the written statement were sought to be amended, i.e., paras. Nos. 58 to 69 of the proposed amendment and in para No. 67 a counter-claim was sought to be raised. No reply has been filed by the bank to this application, but another application filed by the petitioner seeking permission of the court to place on record certain cheques, vide which certain amount had been credited to the account of Navdeep Theatres but the same has not been adjusted by the respondent-bank were sought to be placed on record. The court, however, chose to hear arguments on the second application, annexure P-6, and decided it on the same date, i.e., January 14, 1994, thereby necessitating the filing of review application which too has been declined by the court. Thus, as per case of the petitioner, the petitioner having raised a specific plea of counter-claim in the proposed amendment of the written statement it ought to have been decided by the court before finally coming to the conclusion that the case is to be transferred to the Debt Recovery Tribunal, Jaipur. Elaborating, counsel argued that a bare perusal of the various provisions of the Act makes it abundantly clear that the Tribunal is a Tribunal of limited jurisdiction which has been set up to expeditiously decide the claim of the banks and other financial institutions without following the procedure laid down by the Code of Civil Procedure. The Tribunal as such cannot decide a counter-claim set up by the party nor is empowered to pass a decree in favour of such a person in case his plea is finally accepted and a case for recovery of amount, in fact, has been found against the banks or financial institutions. Reference was also made to the decision of the Delhi High Court in the case of Delhi High Court Bar Association v. Union of India [1998] 92 Comp Cas 849 (Delhi), wherein the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, has been held to be ultra vires. Counsel thus, prayed that since F. A. O. No. 810 of 1990 which is against the direction appointing a receiver is pending adjudication, the matter needs to be examined by this court more thoroughly and so that the petition be admitted and further proceedings pending before the Debt Recovery Tribunal, Jaipur, be ordered to be stayed.
8. Counsel for the respondent, on the other hand, argued that reliance by counsel for the petitioner upon the decision of the Delhi High Court is wholly misplaced as, vide the interim order passed by the apex court onMarch 18, 1996, in T. P. No. (O) Nos. 659-667 of 1995--Union of India v. Banks Users Guild of Services, the operation of the decision of the Delhi High Court has been stayed and it has been further directed that all such matters shall be transferred to the Debt Recovery Tribunal for adjudication. It is in keeping in view the order of the apex court dated March 18, 1996, that the case has been transferred to the Debt Recovery Tribunal, Jaipur (annexure P-8). Counsel, thereafter, made elaborate reference to the loan advanced by the bank, the default committed by the petitioner thus impelling the bank to initiate proceedings for recovery of a huge sum of Rs. 1.16 crore. Counsel further highlighted the falsity of the claim of the petitioner that he has built up 55 shops. By making reference to the report dated August 12, 1991, of the Local Commissioner appointed by the court with a view to verify the existence of such a structure and whether the same is complete and can be made use of, the Local Commissioner after visiting the spot has come to the conclusion that the existing structure is incomplete and no part of it can be made use of, i.e., for renting out. Thus such being the state of so-called existing shops, the claim set up by the petitioner--claiming a set off for the rent which these shops would have fetched--is not only misfounded but misconceived as well. The plea raised is without any foundation and the sole purpose appears to be to put off the legal claim to recover the debt due against the petitioner for almost last 20 years. Precisely for this reason, the court placed no reliance upon these vague averments and otherwise too following the mandate of the apex court rightly transferred the case to the Debt Recovery Tribunal, Jaipur. Similarly, the plea of the petitioner that the counterclaim cannot be adjudicated by the Debt Recovery Tribunal is devoid of merit. In fact, as already held by this court in C. W. P. No. 12901 of 1996--Kundan Rice and General Mills v. Union of India, decided on September 11, 1996--[1998] 92 Comp Cas 895, the Tribunal is well within its jurisdiction to examine the case of the petitioner regarding payment, set off as well as go into the claim based upon counter-claim. It is a different matter that the Tribunal may ultimately come to the conclusion that some evidence needs to be recorded and so may ultimately leave the party to seek its remedy in the ordinary civil court and that by itself cannot be construed taking away such a suit from the purview of the Debt Recovery Tribunal. The court examining the matter in all its details dissented from the view taken by the Delhi High Court and has held the Act to be intra vires and valid according to law. Counsel further made a concession that in case any suit based upon a counter-claim which was intended to be set up in the proposed amended written statement is filed now, no objection with regard to limitation shall be raised by the bank. Such a course, if permitted, shall help the Tribunal in expeditiously disposing of the debt claim laid by the bank as well as protect the right of the petitioner, if any, in case heultimately succeeds in the suit based upon such a counter-claim. Thus, the revision petitions deserve to be dismissed.
9. I have heard learned counsel for the parties for a considerable time. The petitioner's challenge to the orders passed by the court on August 20, 1996, and August 26, 1996, annexures P-8 and P-10, respectively, primarily based upon the claim set up by the petitioner in terms of Order 8, Rule 6A of the Code. The plea of counter-claim had been raised in the pending suit, vide application dated February 22, 1992 (the Act came into force on June 24, 1993). No reply had been filed by the bank to this application nor the court decided the same. All the same the case had been transferred to the Debt Recovery Tribunal, Jaipur, in view of the order of the apex court dated March 18, 1996 (anenxure P-8). Whether such a suit could be transferred to the Debt Recovery Tribunal is a salient question which has been raised in the present petition. Section 2(g) of the Act defines the 'debt'. According to it, it means any liability (inclusive of interest) which is alleged as due from any person by a bank or a financial institution, etc.... Per se, the Act only envisages recovery of debt from any person by bank or a financial institution and not vice versa, i.e., in case an individual has to recover some amount from the bank, such a person can only approach a civil court to recover such an amount. Order 8 of the Code deals with written statement, set up of counter-claim. The court permits a defendant to set up a claim for set off or a counter-claim. A specific plea has to be raised in the written statement and, if so raised, the court is to frame an appropriate issue in this regard and thereafter call upon the parties to adduce evidence in support of such a plea. Under Order 8, Rule 6A of the Code a defendant in a suit in addition to his right to plead set off can also by way of counter-claim raise a claim against the plaintiff in respect of a cause of action accrued to him either before or after the filing of the suit. Such a claim has the same effect as the cross-suit and permits the court to pronounce a final judgment in the same suit both on original claim as well as on counter-claim. Where a counter-claim has been raised in the written statement, the plaintiff is also permitted to file reply/answer to the counter-claim of the defendant. Thus, as per Order 8, Rule 6A of the Code, the court in the same suit while examining the case set up by the plaintiff can also pass a judgment in favour of the defendant, i.e., in a given case a decree can be passed against the plaintiff and so can be executed against him. Thus, in the context of the present case, whether the alleged claim laid by the petitioner in the suit which now has been transferred to the Tribunal tan be adjudicated and a decree can be passed in favour of the petitioner is the sole question which needs a bit close examination. A perusal of various provisions of the Act, i.e., Sections 2(g), 17, 18 and 31 gives no clear clue in this regard. The Act, in fact, is silent and if strictly construed, in fact, bars adjudication of a claim set up by way of counter-claim by the Tribunal. This court while examiningthe validity of the Act has also considered the objections raised by the petitioner with regard to adjudication of such a claim, i.e., claim based upon plea of set off/adjustment and counter-claim and has held that in case the Tribunal finally comes to the conclusion that the counter-claim can only be adjudicated after examining the evidence which is yet to be adduced, then in that case the Tribunal can leave the person to seek his remedy in the ordinary civil court. This way the court while upholding the Act to be valid has primarily left the Tribunal to decide as to whether it can decide a claim based upon counter-claim in the first instance. Such a conclusion is not borne out of perusal of various provisions of the Act. The provisions of the Limitation Act has also not been adverted to. In the instant case, fresh suit on the same cause of action as stated in the counter-claim is now barred.
10. Accordingly, I am of the view that the matter needs to be examined bit more thoroughly as to whether the plea of counter-claim can be adjudicated by a Debt Recovery Tribunal and in case such a claim has been upheld, whether such a decree can be executed by the Recovery Officer in terms of Section 25 of the Act. The matter be placed before the Chief Justice for constituting a larger Bench. Lest the points raised in the petition become matter of mere academic interest, by way of interim measure it is ordered that any decision of the Debts Recovery Tribunal shall be subject to the result of the present petition.
11. T.H.B. CHALAPATHI J.--These two revision petitions were placed before the Division Bench on a reference made by the learned single judge by this order dated January 3, 1997. Both these revisions arise out of the orders passed by the learned Additional Civil Judge, Amritsar, dated August 20, 1996, and August 26, 1996.
12. The petitioner in Civil Revision No. 4365 of 1996 (Navdeep Theatre (P.) Ltd.) was allotted a commercial land admeasuring 5,200 square yards by the Amritsar Improvement Trust in the year 1973. In order to develop the said land by constructing a cinema hall, the petitioner sought a loan of Rs. 25 lakhs from the Punjab and Sind Bank. Accordingly, the bank sanctioned the loan repayable with interest at 161/2 per cent. per annum. According to the terms, of the loan, the ground floor of the premises measuring approximately 3,800 square feet was to be occupied by the bank and the petitioner mortgaged the property and also executed a power of attorney in favour of the bank on November 26, 1976. According to the petitioner, the bank was liable to pay the rent of Rs. 1,95,000 for the premises occupied by it which was to be adjusted against the loan instalments that fell due. The petitioner alleged that the bank filed a suit for the recovery of Rs. 1,13,31,666 on January 10, 1996, without settling the account of the petitioner on the basis of the rent payable to him by the bank. The petitioner also alleged that on the application filed by the bank, the trial court granted an injunction and also appointed areceiver and directed the petitioner to furnish a security of Rs. 5 crores. Against the said order, the petitioner filed an appeal in this court (F.A.O. No. 810 of 1990) and the orders of the trial court have been stayed by this court. The petitioner further stated that in the suit filed by the bank, he made a counter-claim under Order 8, Rule 6A of the Code of Civil Procedure. While the suit was pending in the trial court, Parliament enacted the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act), and the said Act came into force with effect from June 24, 1993. As per the provisions of the Act, the trial court by the impugned order dated August 20, 1996, transferred the suit to the Tribunal constituted under the said Act located at Jaipur, having jurisdiction over the State of Rajasthan, Himachal Pradesh, Punjab and Haryana. The petitioner moved an application on August 22, 1996, to review the said order, but the said application was also dismissed by the civil court on August 26, 1996. Therefore, the petitioners in both these civil revisions filed these revision petitions challenging the order of the civil court transferring the suit to the Debt Recovery Tribunal at Jaipur.
13. In Civil Revision No. 4366 of 1996 the bank filed the suit for the recovery of Rs. 1,15,47,774.07 ps. The facts in this revision are also the same as in Civil Revision No. 4365 of 1996. Both these civil revisions were listed before our learned brother. A Division Bench of this court in C. W. P. No. 12901 of 1996 held the provisions of the Act to be constitutionaly valid, but the learned single judge felt that the matter needs to be examined a bit more thoroughly as to whether the plea of counter-claim can be adjudicated by a Debt Recovery Tribunal and in case such a claim has been upheld, whether such a decree can be executed by the Recovery Officer in terms of Section 25 of the Act and directed the matter to be placed before the Chief Justice for constituting a larger Bench, that is how these revision petitions came up before us.
14. The only point that was urged before us is that, the petitioner made a counter claim in his written statement and that the Tribunal, has no jurisdiction to decide the counter-claim and if the matter is agitated before the Tribunal, then the counter-claim will be barred by law of limitation and the right of the petitioner for his claim against the bank gets extinguished. Therefore, a valuable right is taken away if the suit is transferred to the Debt Recovery Tribunal. According to him, the Debt Recovery Tribunal has no power to decide the counter-claim and his right to make counter-claim in the suit filed by the bank is taken away by the provisions of the Act and, therefore, the provisions of the Act are ultra vires and illegal as held by a Division Bench of Delhi High Court in Delhi High Court Bar Association v. Union of India [1998] 92 Comp Cas 849.
15. The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, has been enacted by Parliament to provide for the establishment ofTribunals and Appellate Tribunals for expeditious adjudication and recovery of debts due to the banks and financial institutions for matters connected therewith or incidental thereto. Section 17 of the Act provides that a Tribunal shall exercise the 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. Under Sub-section (2) of Section 17, an Appellate Tribunal is empowered to entertain appeals against any order made or deemed to have been made by a Tribunal. Section 18 of the Act excludes the jurisdiction of the ordinary civil courts in respect of the matters specified in Section 17. The Division Bench of the Delhi High Court in Delhi High Court Bar Association v. Union of India [1998] 92 Comp Cas 849, held that while a bank can file an application for the recovery of the debt due from the respondent and similarly, if the respondent has any claim against the bank, he must necessarily go to the civil court as there is no provision under the Act or the Rules for a person to raise any counter claim.
16. A Division Bench of this court in Kundan Rice and General Mills v. Union of India [1998] 92 Comp Cas 895 (in which one of us, Chalapathi J., is a member) considered the decision of the Delhi High Court and held that the Act imposes a duty on the Tribunal to determine the amount legally recoverable from a person and to pass orders which meet the ends of justice and the claim made by the petitioner (defendant debtor) that the plea of set off or counter-claim cannot be raised by a person or accepted by the authority is untenable. The judgment of the Delhi High Court was dissented from.
17. Learned counsel for the petitioners argued that the Division Bench of this court in the aforesaid writ petitions has not considered the question that the Tribunal has no power to pass the decree in favour of the petitioner (debtor) if his counter-claim is found to be in excess of the claim made by the bank for the recovery of the debts due to it and if he makes a counter-claim in the application filed by the bank for the recovery of the debts due Jo it and if it is ultimately found that the debtor (petitioner) is entitled to more than the amount due to the bank, he could not file any suit for the recovery of the amount because by that time, his suit would be barred by time and he would be left with no remedy. This plea appears to have found favour with the learned single judge for referring the matter to a larger Bench.
18. To examine the contention of learned counsel, it is necessary to see whether the counter-claim is really a substantial right or procedural one.
19. In Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala [1964] AIR 1964 SC 11, the apex court held as follows (page 17) :
'The question has, therefore, to be considered on principle as to whether there is anything in law statutory or otherwise--which precludesa court from treating a counter-claim as a plaint in a cross suit. We are unable to see any. No doubt the Civil Procedure Code prescribes the contents of a plaint and it might very well be that a counter-claim which is to be treated as a cross suit . . There could be no legal objection to the court treating the same as a plaint and granting such relief to the defendant as would have been open if the pleading had taken the form of a plaint.
20. A similar view has also been taken by the apex court in Mohinder Singh v. Data Ram [1972] AIR 1972 SC 1043.
21. Rules 6A to 6G of Order 8 were introduced in the Civil Procedure Code in 1976 which made matters easier and clearer. These rules exhaustively dealt with counter-claim by the defendant. Rule 6A expressly enables a defendant in a suit to set up a counter-claim of the nature indicated therein. The proviso to Sub-rule (1) of Rule 6 of Order 8 clearly stipulates that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court. If a counter-claim is made in excess of the pecuniary jurisdiction, the same is to be directed to be returned for presentation to the proper court as has been held in Palayan (V.A.) v. Chandra Mohan [1982] 1 MLJ 160.
22. Sub-rule (3) of Rule 6A gives the liberty to the plaintiff to file a written statement in answer to the counter-claim of the defendant. Sub-rule (4) thereof expressly provides that the counter-claim should be treated as a plaint and governed by the rules applicable to plaints. Under Rule 6C the plaintiff is enabled to move the court for an order that such a counterclaim has to be excluded and the defendant should be directed to an independent suit. It is for the court to make appropriate orders on that application made in that behalf by the plaintiff. Rule 6D provides that the counter-claim has to be proceeded with even if the suit of the plaintiff is stayed/discontinued or dismissed.
23. Under Article 1 of Schedule I to the Court Fees Act, 1870, the court fee is payable on the amount or value of the counter-claim. The enactments of the various States on court fees also provide for payment of the court fee on counter-claims. Section 3(2)(b) of the Limitation Act, 1963, provides that any counter-claim shall be treated as a separate suit. Reference may be had to the decision of the apex court in Mahendra Kumar v. State of H. P. [1987] AIR 1987 SC 1395.
24. It has been held in Pathrose Samual v. Karumban Parameswaran [1988] AIR 1988 Ker 163, that the Code of Civil Procedure contemplates claims which could not and need not be entertained as counter-claim but left to be decided as independent suits as the court considering the counter-claim deems fit. It is further held in the said decision that if the defendant could not have filed a fresh suit in respect of the counterclaim, the counter-claim by way of written statement must also be held incompetent.
25. Thus a reading of Rules 6A to 6G of Order 8 of the Code of Civil Procedure, makes it clear that a counterclaim is in the nature of a separate suit and, therefore, both the Limitation Act as well as the Court Fees Act will apply to the counter-claim.
26. The substantial common law right of a party is to file a suit to enforce his claim which is purely of civil nature. To make a counter-claim is purely the procedural one incorporated in the provisions contained in Rules 6A to 6G of Order 8 of the Code of Civil Procedure to avoid multiplicity of suits, but the right to make a counter-claim is not a substantial right, but is only a procedural right. There cannot be any dispute that no litigant has any vested interest in procedural law as the procedural law does not confer any substantial right.
27. It has been held by a Division Bench of this court in Hari Shankar v. Kailasho (Smt), AIR 1987 P & H 47 that the amendment has brought about a long needed reformation in the procedural law, but it is the right of the defendant either to make a counter-claim under Order 8, Rules 6A to 6G of the Code of Civil Procedure, or to file an independent suit.
28. In Raja Ram Kumar v. Union of India, AIR 1988 SC 752, the apex court at page 756 observed that both the common law and statutory remedies might become concurrent leaving open an element of election to the persons of inherence.
29. In essence the counter-claim is a cross-suit. To avoid multiplicity of proceedings in the civil courts, the provision for making a counter-claim has been incorporated in the Code of Civil Procedure which is intended to regulate the procedure in the courts of civil judicature. A Tribunal constituted under a statute cannot be said to be a civil court. Therefore, in an application filed by the bank before the Tribunal for the recovery of the debts due from a person under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the debtor of the bank cannot make a counter-claim against the bank for a certain amount due to him, but as held by this court in C. W. P. Nos. 12901 and 13340 of 1996-[1998] 92 Comp Cas 895, it is open to the Tribunal to determine the amount legally due to the bank after settlement of accounts and pass a decree in favour of the bank for the balance of the amount found due. In reply to the claim of the bank, it is always open to the debtor to take a plea that some amount was due to him from the bank, and the same must be given credit to and after settling the accounts, the amount due to the bank may be decreed, but at the same time the Tribunal has no power under the Act to pass a decree in favour of the debtor if it is found that the bank is liable to pay any amount in excess of the amount claimed by the bank. Neither the provisions in the Civil Procedure Code nor the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, deprive or take away the right of the debtor to agitate his claim in a regular suit. The common law right of the party, i.e., the debtor of the bank to recover the amount due to him from the bank is not taken away by any provisions contained in the Act of 1993. If the amount claimed by the debtor is less than the amount claimed by the bank, it is a case of settlement or adjustment or set-off at the best in which case the Tribunal will be well within its jurisdiction to give credit to the amount payable to the debtor and then pass a decree in favour of the bank in respect of the amount which is legally found due to the bank. The language used in the preamble to the Act clearly shows that the Tribunals have been established for expeditious adjudication and recovery of the debts due to the bank and financial institutions for matters connected therewith or incidental thereto. The very words 'incidental thereto' clearly show that if the Tribunal during the course of proceedings while dealing with the application filed by the bank against a person for the recovery of debt due to it, comes to the conclusion that some amount is due to the respondent from the bank, the Tribunal will be within its jurisdiction to give credit to the amount payable to the debtor and then determine the amount legally due to the bank. To elucidate this point, an illustration may be cited. Suppose the bank advances a loan to a person to construct a building, which has been later let out to the bank on rent. In a claim made by the bank before the Tribunal for recovery of the debt, it is always open to the debtor to claim that if the bank commits a default in payment of rent, the rent due to him is to be adjusted towards the amount lent by the bank and only after giving credit to the rent legally found due to the debtor, the Tribunal will decide the ultimate amount legally recoverable from the debtor and pass a decree in favour of the bank for the said amount. It would be within the knowledge of the debtor whether his claim falls within the limits of the claim made by the bank or in excess of the claim made by the bank. If his claim is found to be within the limit of the claim made by the bank, he can certainly take the plea that certain amounts are due to him from the bank and that they are to be adjusted towards the claims made by the bank. If his claim is more than the claim made by the bank, then he has necessarily to approach the civil court to claim that amount and cannot make a counter-claim. This position is clearly amplified by Section 22 of the Act which provides that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, but shall be guided by the principles of natural justice and subject to the other provisions of the Act and of any rules, the Tribunal shall have powers to regulate its own procedure.
30. Thus, in view of our above discussion, we are of the view that the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, are not unconstitutional on the ground that they deprive thedebtor to make a counter-claim and recover any amount found in excess of the claim made by the bank. No substantial right of the debtor to file a suit for the amount due to him from the bank is taken away under the provisions of the said Act.
31. In the light of the above legal position, it is open to the petitioner (debtor) either to seek the transfer of his counter-claim to the Tribunal or to have his counter-claim decided by the civil court in accordance with law as a separate and independent suit and if the petitioner so desires, the trial court will decide the counter-claim of the petitioner (debtor) as an independent suit in accordance with law.
32. Subject to what has been stated above we do not find any merit in the contention of learned counsel for the petitioners.
33. The result is, both the civil revisions fail and are, accordingly, dismissed. No order as to costs.