Assam Leather Industry Vs Union of India Uoi and ors - Citation 135250 - Court Judgment

Judgment:

J.N. Sarma, J.

1. These cases raise the question of legality, validity and constitutionality of Recovery of Debts Due to Banks and Financial Institution Act, 1993 (hereinafter called 'the Act'), and other actions related to the Debt Recovery Tribunal at Guwahati constituted under the Act ('Tribunal' hereinafter).

2. In all 350 cases were filed before the Debt Recovery Tribunal at Guwahati and out of such proceedings 211 writ petitions were filed before this court and stay was granted in those cases. There are some cases five in number arising out of cases filed by co-operative banks for recovery of their dues. The Debt Recovery Tribunal entertained them. The borrowers/ debtors have challenged this action on the ground that the Tribunal does not have the power to decide a suit filed by a co-operative bank, as the definition of 'bank' in the relevant Act does not cover a co-operative bank. These cases are separated from this bunch and they have been heard separately and separate judgment has been pronounced.

3. The cases filed before this court can broadly be divided into three heads :

(i) cases filed by borrowers/debtors against the action by the banks for recovery of their dues either by filing original applications before the Tribunal or cases sought to be tried having been received by it on transfer from civil court under Section 31 of the Act.

(ii) cases filed by financial institutions like the Assam Financial Corporation, National Insurance etc., stating that their vested right as secured creditor is being wiped out.

(iii) 41 cases filed at the recovery stage, i.e., after a certificate was issued as against them by the Tribunal under the provisions of the Act.

4. It is pointed out by Mr. P.N. Choudhury, learned Central Government Standing Counsel that up to the end of July, 1999, cases were filed before the Tribunal for recovery of an amount of Rs. 369.14 crores and till today the amount involved in the different suits is Rs. 384 crores and out of it in the meantime from the date of establishment of the Tribunal till today an amount of Rs. 4.01 crores has been recovered from the borrowers/debtors. Orders of stay were granted in the different cases, i.e., 211 cases. Applications were filed by the Union of India to vacate the stay. When the stay matters came up for consideration, the court decided that instead of hearing the question of stay the main matter should be taken up for hearing. Learned counsel for both sides agreed to this and accordingly this matter has been heard on August 9, 1999, August 10, 1999, August 11, 1999, August 12, 1999, August 13, 1999.

5. The majority of the petitioners herein have challenged the constitutional validity of the Act, that is, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter 'the Act' for the sake of brevity) on the ground that the Act is unreasonable and violative of Article 14 of the Constitution of India, that it is beyond the legislative competence to enact such a law, and other grounds as will be indicated below.

6. In some of the civil rules the validity of the certificate (judgment passed by the Tribunal) under the Act has been challenged under Article 227 of the Constitution.

7. Before we go to decide the contentions raised by the parties it will be necessary to have a look at the Statement of Objects and Reasons of the Act (see [1993] 78 Comp Cas 112 (St.)). By way of introduction, it may be stated as follows :

Banks and financial institutions have been experiencing considerable difficulties in recovering loans and enforcement of securities charged with them. The procedure for recovery of debts due to banks and financial institutions which is being followed has resulted in a significant portion of the funds being blocked. To remedy the locking up of huge funds, Dr. Manmohan Singh, the then Minister of Finance, introduced the Recovery of Debts Due to Banks and Financial Institutions Bill, 1993, dated the April 26, 1993, in Lok Sabha on May 13, 1993.

'Banks and financial institutions at present experience considerable difficulties in recovering loans and enforcement of securities charged with them. The existing procedure for recovery of debts due to banks and financial institutions has blocked a significant portion of their funds in unproductive assets, the value of which deteriorates with the passage of time. The Committee on the Financial System headed by Shri M. Narasimham has considered the setting up of the Special Tribunals with special powers for adjudication of such matters and speedy recovery as critical to the successful implementation of the financial sector reforms. An urgent need was, therefore, felt to work out a suitable mechanism through which the dues to banks and financial institutions could be realised without delay. In 1981 a Committee under the Chairmanship of Shri T. Tiwari had examined the legal and other difficulties faced by banks and financial institutions and suggested remedial measures including changes in law. The Tiwari Committee had also suggested the setting up of Special Tribunals for recovery of dues of banks and financial institutions by following a summary procedure. The setting up of Special Tribunals will not only fulfil a long-felt need, but also will be an important step in the implementation of the report of the Narasimham Committee. Whereas on 30th September, 1990 more than fifteen lakhs of cases filed by the public sector banks and about 304 cases filed by the financial institutions were pending in various courts, recovery of debts involved more than Rs. 5,622 crores in dues of public sector banks and about Rs. 391 crores of dues of the financial institutions. The locking up of such huge amounts of public money in

litigation prevents proper utilisation and recycling of the funds for the development of the country.

The Bill seeks to provide for the establishment of Tribunals and Appellate Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions. Notes on clauses explain in detail the provisions of the Bill.'

During the pendency of Bill 59 of 1993 in the House of the People, the President being satisfied that circumstances exist which render it necessary for him to take immediate action to give effect to that Bill, in exercise of the powers conferred by Article 123(1) of the Constitution, promulgated on June 24, 1993, the Recovery of Debts Due to Banks and Financial Institutions Ordinance, 1993, to provide for the establishment of Tribunals for expeditious adjudication and recovery of debts due to Banks and financial institutions and for matters connected therewith or incidental thereto.'

8. Bill 59 of 1993 which was passed by Lok Sabha and Rajya Sabha received the assent of the President and soon thereafter became an Act of Parliament under the title as mentioned above.

9. Mr. P.N. Choudhury, learned Central Government Standing Counsel produces before me a passage from the book We, the Nation : The Lost Decades by Nani A. Palkhivala wherein he draws my attention at page 206 and there it has been stated as follows :

'(i) In the English-speaking world, there never was a time when such gloomy forebodings were expressed about the present and the future of the system of administration of justice : there never was a time when the legal profession was so commercialized and the courts of law so clogged,

(ii) In Britain, the office of Lord Hailsham, the Lord Chancellor, is trying desperately, and trying almost in vain, to refurbish the legal system so as to avoid the long delay before a case reaches hearing, to shorten the hearing itself and to avoid excessive costs. In March, 1985, Michael Joseph, a qualified solicitor, published a book under the embarrassing but appropriate title, Lawyers Can Seriously Damage Your Health. There can be no doubt that litigation in ordinary courts of law can seriously damage the health of international commerce.

(iii) Coming to the United States, Warren Burger, the former Chief Justice of the Supreme Court, has been no less explicit in his criticism. In that country there has been an explosion of lawyer--stimulated litigation-more than 25 million new law suits are filed in America every year, taking the Federal, State, and local courts together.

(iv) The question which many thinking Americans are asking themselves is this have they reduced the inalienable rights of man to life, liberty and the pursuit of litigation The burgeoning costs and demoralizing delays of litigation in courts of law are so devastating that litigants have no hope of

coming out of the intensive care unit. Unavoidably under the present system, litigation in civil courts continues to be lawyer-dominated.

(v) In India, the former Chief Justices of India have been repeatedly warning that the Indian judicial system is on the verge of collapse. The present Chief Justice, Justice Pathak (as he then was) himself said last January at a function in Allahabad that the Indian courts 'now carry a burden almost beyond their apparent capacity'. In India, cases drag on. They continue to drag their dreary length before the court in a manner strikingly reminiscent of Jarndyce v. Jarndyce in Charles Dickens' Bleak House. In our eighteen High Courts we have more than 500,000 cases that have been in litigation between ten and thirty years. The Economist (of London) noted a case in the Karnataka High Court which had been dragging on for 38 years. The litigant was a bachelor when it began. Today he is an old man with ten grandchildren, some of whom might well have to carry on the legal battle after he is dead.

(vi) In this process, the famous maxim of Gresham's Law of Economics holds the field--'Bad coins drive good ones out of circulation'. It is equally sound : 'Bad cases drive out good ones and prevent their being heard in time'.'

10. The well accepted mode is that 'Justice must be cheap, but judges must be expensive'. If the law is not to be a system of tyrannical rigidity, but instead to be the efficient and useful servant of a changing society, it must from time to time be adapted and parts of it replaced. A court of law is like an ancient castle, constantly under repair. There comes a time when it no longer pays to patch it up, and it is better to resort to a new compact house built on modern lines.

11. This challenge to this particular Act is not res Integra as there are two decisions of two High Courts :

(1) Delhi High Court Bar Association v. Union of India. : AIR1995Delhi323 wherein a Division Bench of the Delhi High Court held that this Act is within the legislative competence of the Parliament, but at the same time, it held that the independence of the judiciary has been eroded by this enactment and it hits the basic tenets and fundamental requirements of our Constitution.

An argument is made that two procedures have been prescribed and that the Act is loaded in favour of the banks and the financial institutions. Further it was held that it will be violative of Article 14 of the Constitution of India. The Delhi High Court found that the Act is unconstitutional, irrational, discriminatory, unreasonable and is hit by Article 14 of the constitution, and as such the Act was struck down.

(2) The next case on this point is Kundan Rice and General Mills v. Union of India wherein a Division Bench of the Punjab and Haryana High Court

answered all the questions in favour of the Union of India. Three questions were raised before the Punjab and Haryana High Court and they are (page 899 of 92 Comp Cas) :

'(i) Are the provisions of the Act ultra vires and unconstitutional

(ii) Does the Act erode the independence of the judiciary

(iii) Is a defendant debarred from claiming a set off or making a counter claim ?'

12. All these three questions were answered in favour of the Union of India. The case of the Delhi High Court (supra) was referred in para. 30 of the judgment and it was pointed out that this view of the Delhi High Court is based on a very narrow construction of the provisions of the statute. The conclusion recorded by the court that the statute erodes the independence of the judiciary and that the debts are made recoverable as a tax or that the pleas of set off/counter claim cannot be entertained, does not appear to be correct. Accordingly that judgment was dissented from and the writ application was dismissed and the validity of the Act was upheld.

13. This Act is divided into six Chapters :

Chapter I--Preliminary.

Chapter II--Establishment of Tribunal and Appellate Tribunal.

Chapter III--Jurisdiction, powers and authority of Tribunals.

Chapter IV--Procedure of Tribunals.

Chapter V--Recovery of Debt determined by Tribunal.

Chapter VI--Miscellaneous.

14. Section 2 of the Act of 1993 defines 'bank' as follows :

'Section 2(d) 'bank' means-

(i) a banking company ;

(ii) a corresponding new bank ;

(iii) State Bank of India ;

(iv) a subsidiary bank ; or

(v) a Regional Rural Bank ;

(e) 'banking company' shall have the meaning assigned to it in Clause (c) of Section 5 of the Banking Regulation Act, 1949 (10 of 1949).-'

15. Clause (c) of Section 5 of the Banking' Regulation Act, 1949, defines the expression 'banking company' as follows :

''Banking company' means any company which transacts the business of banking in India.

Explanation.--Any company which is engaged in the manufacture of goods or carries on any trade and which accepts deposits of money from the public merely for the purpose of financing its business as such manufacturer or trader shall not be deemed to transact the business of banking within the meaning of this clause.'

16. Section 2(h) defines 'financial institution' as follows :

'(h) 'financial institution' means-

(i) a public financial institution within the meaning of Section 4A of the Companies Act, 1956 (1 of 1956) ;

(ii) such other institution as the Central Government may, having regard to its business activity and the area of its operation in India by notification, specify.'

17. Institutions notified by the Central Government under Sub-section (2) as public financial institutions-In exercise of the powers conferred by Sub-section (2) of Section 4A of the Companies Act, 1956 (1 of 1956), the Central Government hereby specifies the following institutions to be public financial institutions, namely-

(1) The Industrial Reconstruction Bank of India established under the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984) ;

(2) The General Insurance Corporation of India established under the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972) ;

(3) The National Insurance Company Limited, formed and registered under the Companies Act, 1956 (1 of 1956) ;

(4) The New India Assurance Company Limited, formed and registered under the Companies Act, 1956 (1 of 1956) ;

(5) The Oriental Fire and General Insurance Company Limited, formed and registered under the Companies Act, 1956 (1 of 1956) ;

(6) The United Fire and General Insurance Company Limited, formed and registered under the Companies Act, 1956 (1 of 1956) ;

(7) The Shipping' Credit and Investment Company of India Ltd.

(8) Tourism Finance Corporation of India Limited, formed and registered under the Companies Act, 1956 (1 of 1956) ;

(9) Risk Capital and Technology Finance Corporation Ltd. formed and registered under the Companies Act, 1956 (1 of 1956) ;

(10) Technology Development and Information Company of India Limited, formed and registered under the Companies Act, 1956 (1 of 1956);

(11) Power Finance Corporation Limited, formed and registered under the Companies Act, 1956 (1 of 1956) ;

(12) National Housing Bank established under the National Housing Bank Act, 1987 (53 of 1987) ;

(13) Small Industries Development Bank of India established under the Small Industries Development Bank of India Act, 1989 (39 of 1989) ;

(14) Rural Electrification Corporation Ltd., formed and registered under the Companies Act, 1956 (1 of 1956) ;

(15) Indian Railway Finance Corporation Ltd.

18. Section 4 of the Act of 1993 provides for composition of Tribunal. Section 4 is quoted below :

'4. Composition of Tribunal--(1) A Tribunal shall consist of one person only (hereinafter referred to as the Presiding Officer) to be appointed by notification, by the Central Government.

(2) Notwithstanding anything contained in Sub-section (1), the Central Government may authorise the Presiding' Officer of one Tribunal to discharge also the functions of the Presiding Officer of another Tribunal.'

19. Section 5 provides as follows :

'5. Qualifications for appointment as Presiding Officer.--A person shall not be qualified for appointment as the Presiding Officer of a Tribunal unless he is, or has been, or is qualified to be, a District Judge.'

20. It may be stated herein that in the meantime on January 19, 1998, a set of rules has been framed under G.S.R. 31E wherein it has been provided that to appoint a Presiding Officer of the Appellate Tribunal, there shall be a selection committee consisting of :

(i) the Chief Justice of India or a judge of the Supreme Court of India as nominated by the Chief Justice of India ;

(ii) the Secretary to the Government of India in the Ministry of Finance (Department of Economics Affairs) ;

(iii) the Secretary to the Government of India in the Ministry of Law and Justice ;

(iv) the Governor of the Reserve Bank or the Deputy Governor of the Reserve Bank nominated by the Governor of the Reserve Bank ;

(v) the Special/Additional Secretary to the Government of India in the Ministry of Finance, Department of Economic Affairs, (Banking Division) or an officer not below the rank of Joint Secretary in the Banking Division nominated by the Special/Additional Secretary in the Banking Division.

21. It further provides that the Chief Justice of India or judge of the Supreme Court shall be the chairman of the selection committee. It further provides that any three members of the committee including the chairman shall form a quorum for meeting of the committee.

22. In the same lines, another set of rules has been framed on the same date for the selection of the Presiding Officer of the Tribunal and there also Rule 3 provides for the selection committee and the members are same and it has been framed under G.S.R. 32(E).

23. Mr. P.N. Choudhury, learned Central Government Standing Counsel produces before me a Bill being Bill No. 21 of 1999 further to amend the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, and the Bill no doubt will lapse, but the amendments proposed by the Bill are quoted below :

'4. In Section 19 of the Principal Act :

(a) after Sub-section (3), the following sub-sections shall be inserted, namely :

(3A) The defendant shall, at or before the first hearing or within such time as the Tribunal may permit, present a written statement of his defence.

(3B) Where the defendant claims to set off against the applicant's demand any ascertained sum of money legally recoverable by him from such applicant, the defendant may, at the first hearing of the application, but not afterwards unless permitted by the Tribunal present a written statement containing the particulars of the debt sought to be set off. .

(3C) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Tribunal to pass a final order in respect both of the original claim and of the set-off.

(3D) A defendant in an application may, in addition to his right of pleading a set-off under Sub-section (3B), set up, by way of counter-claim against the claim of the applicant, any right or claim in respect of a cause of action accruing to the defendant against the applicant either before or after the filing of the application but before the defendant has delivered his defence or before the time limited for delivering his defence has expired whether such counter-claim is in the nature of a claim for damages or not.

(3E) A counter-claim under Sub-section (31) shall have the same effect as a cross-suit so as to enable the Tribunal to pass a final order in the same suit, both on the original claim and on the counter claim.

(3F) The applicant shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the Tribunal.

(3G) Where a defendant sets up a counter-claim and the applicant contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the applicant may, at any time before issues are settled in relation to the counter-claim, apply to the Tribunal for an order that such counter-claim may be excluded, and the Tribunal may, on the hearing of such application make such order as it thinks fit ;

(b) after Sub-section (6), the following sub-sections shall be inserted, namely :

(6A) Where, at any stage of the proceedings, the Tribunal is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any order for the recovery that may be passed against him.-

(a) is about to dispose of the whole or any part of his property ; or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Tribunal,

the Tribunal may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Tribunal when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the certificate for the recovery, or to appear and show cause why he should not furnish security.

(6B) The applicant shall, unless the Tribunal otherwise directs, specify the property required to be attached and the estimated value thereof.

(6C) The Tribunal may also in the order direct the conditional attachment of the whole or any portion of the property specified under Sub-section (6B).

(6D) If an order of attachment is made without complying' with the provisions of Sub-section (6A), such attachment shall be void.

(6E) Where it appears to the Tribunal to be just and convenient, the Tribunal may by order-

(a) appoint a receiver of any property, whether before or after grant of certificate for recovery of debt ;

(b) remove any person from the possession or custody of the property ;

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Tribunal thinks fit ; and

(e) appoint a Commissioner for preparation of an inventory of the properties of the defendant or for the sale thereof ;

5. In Section 27 of the principal Act, in Sub-section (4) after the words 'is reduced' the words 'or enhanced' shall be inserted.

6. After Section 31 of the principal Act, the following section shall be inserted, namely :

'31A. (1) Where a decree or order has been passed by any court but has not yet been executed before the commencement of the Recovery of Debts Due to Banks and Financial Institutions (Amendment) Act, 1999, then the decree-holder may apply to the Tribunal to pass an order for recovery of the amount.

(2) On receipt of an application under Sub-section (1), the Tribunal may issue a certificate for recovery to a Recovery Officer.

(3) On receipt of a certificate under Sub-section (2), the Recovery Officer shall proceed to recover the amount as if it were a certificate in respect of a debt recoverable under this Act'.

7. In Section 36 of the principal Act, for Sub-section (3), the following sub-'section shall be substituted, namely :

'(3) Every notification issued under Sub-section (4) of Section 1, Section 3 and Section 8 and every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each

House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or rule or both Houses agree that the notification or rule should not be issued or made, the notification or rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule'.'

24. This I am quoting extensively inasmuch as an argument has been advanced on this and even the Government was aware of the deficiency and by way of proposed amendment the Government is trying to remove such deficiency.

25. It is submitted by Mr. P.N. Choudhury, learned Central Government Standing Counsel that the working committee suggested some more amendments and those are under consideration. Be that as it may, as on today, in order to decide the validity of the Act we must look to the existing Act and not to something that may happen in future.

26. I have heard Mr. B.K. Das, Mr. A.K. Phookan, Mr. D.K. Misra, Mr. H.N. Sarma, Mr. C.K.S. Barua, Mr. B.P. Kataky, learned senior counsel, Mr. T.C. Khetri, Mr. G.N. Sahewalla, Mr. B.R. Dey, learned counsel for HUDCO, Punjab National Bank, SBI, New Gauhati Branch, Bank of India, Indian Bank and UCO Bank, Mr. B. Kalita learned counsel for SBI, Mr. P.C. Goswami, learned counsel for Indian Bank, and UCO Bank, Mr. L. Talukdar, learned counsel for SBI, Allahabad Bank, Mr. Rajen Choudhury, learned counsel for UBI, Mr. S. Dutta, learned counsel for UBI, and Mr. A.K. Bhattacharyya, learned senior advocate and Mr. K. Agarwal, learned counsel.

27. Mr. A.K. Phookan, learned senior counsel, makes the main argument and others have added to the argument advanced by him. He makes the following submissions :

(A) The Act has been enacted under Article 323B of the Constitution. This is the only provision which comes under Part XIV-A. On a conjoint reading of the 42nd Amendment and the 44th Amendment it appears that this is the only provision in the Constitution whereby tribunals are constituted, that too excluding the jurisdiction of all courts (Article 323B(3)(d)). The Additional Solicitor General in the Delhi High Court case reported in Delhi High Court Bar Association v. Union of India : AIR1995Delhi323 admitted that the Act has been enacted under this provision, but admittedly, there is no provision for constituting a Tribunal of recovery of debts under Article 323B which will be apparent from Article 323B(2) of the Constitution. Being faced with these problems the argument has been made to save the Act by bringing in the provision of

Article 248 of the Constitution. The Solicitor General, in the Delhi case relied on entry 11-A of List III, but a mere perusal of that entry does not include Tribunal. The Punjab and Haryana case (Kundan Rice and General Mills v. Union of India [1998] 92 Comp Cas 895) tried to find out the source by saying :

(i) That the items mentioned in 323B are not exhaustive.

(ii) On the basis of entry 43 of List I read along with entry 95 of List I.

Apart from the fact that the Punjab and Haryana case is devoid of any reasoning to persuade this court, the aforesaid Entry can never be said to be the enabling provision. Entry 43 speaks about incorporation, regulation and winding up and entry 95 have lost all importance after L. Chandra Kumar v. Union of India : [1997]228ITR725(SC) . Therefore, with great respect the judgment of the Punjab and Haryana High Court has got no relevance in deciding the validity, so far it relates to the legislative competence of Parliament. Apart from that, the Solicitor-General's admission that the Act has been enacted under Article 323B, a special provision for constitution of a tribunal like the present one had to be accepted (para. 40 of Delhi High Court Bar Association v. Union of India : AIR1995Delhi323 ). The residuary power under Article 248 must be understood in the light of fact that our Constitution does not have exclusive power to make any law as in the case of United Kingdom. The validity will have to be decided on the basis of the fact that no law made by our Parliament which offends the basic features of the Constitution can be sustained. So the argument that under the residuary power the Parliament has got all pervasive power to enact any law not enumerated in the Concurrent List or State List is a fallacy. Nor did the framers of our Constitution intend such a power, as the Supreme Court has already held that a law made by Parliament which excludes judicial review by our constitutional court, namely the Supreme Court and the High Court under Articles 226 and 227 of the Constitution cannot be sustained. The present law exactly having' sought to do so is patently violative of the basic features of the Constitution : [1997]228ITR725(SC) ), more particularly, paragraph Nos. 62, 76. 78 and 79.

It is pertinent to mention here that the judgment reported in Delhi High Court Bar Association v. Union of India : AIR1995Delhi323 as well as the judgment reported in Agro India Malt Pvt. Ltd. v. Central Bank of India , (relied upon by learned counsel for the respondents) were delivered on March 10, 1995 and September 11, 1996, respectively, whereas the judgment in L. Chandra Kumar's case : [1997]228ITR725(SC) was delivered by the Hon'ble Supreme Court on March 18, 1997, and, therefore, any decision on any point rendered by the courts contrary to the decision of the Supreme Court are bad. Moreover, in

L. Chandra Kumar's case : [1997]228ITR725(SC) the Supreme Court has saved the provisions of the Administrative Tribunals Act, 1985, by holding that by providing a forum in the High Court under Article 226 of the Constitution of India to exercise judicial superintendence over the decisions of all courts and Tribunals within the respective territorial jurisdiction which is part of the basic feature of the Constitution.'

28. The Supreme Court in L Chandra Kumar's case : [1997]228ITR725(SC) in paragraph 80 has held as under (page 768) :

'However, it is important to emphasise that though the subordinate judiciary or Tribunals created under ordinary legislation cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental--as opposed to a substitutional--role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses Clause (3) of Article 32 of the Constitution.'

29. On the other hand the Punjab and Haryana High Court in Kundan Rice Mill's case [1998] 92 Comp Cas 895 has held Articles 323A and 323B were necessiated by the fact that the existing jurisdiction of the civil courts as well as of High Court under Article 226 of the Constitution was to be substituted. The said finding of the Punjab and Haryana High Court is no longer good law, in view of the decision of the Supreme Court in L. Chandra Kumar's case : [1997]228ITR725(SC) . Now, the question is whether the present law will be outrightly declared as void, ultra vires or the provisions of the Act will be sought to be upheld by reading down or interpreting it in a manner which will make it valid. It is difficult to sustain the validity as has been done in case of Central Administrative Tribunal, inasmuch as the Central Administrative Tribunals are clearly envisaged in Article 323A, which is not the case as stated earlier in respect of these cases.

30. The next problem in sustaining this Act is the impossibility of providing judicial review in the present scheme of the Act which we intend to deal with heading (B) below :

(i) Judicial review is a basic feature of the Constitution.

(ii) Judicial review includes not only interpretation of law, but also judicial decisions.

(iii) Even assuming a particular legislation provides for judicial review by the Supreme Court, but excludes the power of judicial review by High Court under Articles 226 and 227, the same legislation will not be valid.

31. In the present legislation it is impossible for the High Court to exercise power under Articles 226 and 227 of the Constitution, in view of the fact

that the Appellate Tribunals have been constituted outside the territorial jurisdiction of the High Court except the Bombay High Court.

32. In respect of other Tribunals like the Motor Accident Claims Tribunals, the High Court is exercising power of superintendence because the Tribunals are constituted within the territorial jurisdiction of the High Court. Therefore, the Act cannot be saved even by providing a provision for judicial review by High Court.

33. In short, on validity this impugned legislation is per se invalid on the following grounds :

(i) Does not possess legislative competence, inasmuch as Article 323B does not provide for constitution of Tribunal for recovery of debts.

(ii) It takes away the power of judicial review of constitutional courts under Articles 32, 226 and 227 of the Constitution.

(iii) Even if an argument is made that it has been enacted in exercise of the residuary powers, the Act is per se invalid in view of the fact that Article 248 does not empower a legislation which excludes the power of judicial review of the High Court and the Supreme Court. And the scheme of the Act does not provide for interpreting the Act in a manner to make it valid in view of the fact that it is impossible to provide judicial review to the High Court over the Tribunal which is constituted outside this court.

34. Mr. D.K. Misra, learned senior counsel makes the following submissions regarding grounds of challenge :

1. Power of Parliament to enact the impugned Act :

35. It is submitted that the word 'Tribunal' does not figure in any of the lists namely List I, List II and List III. The concept of administration of justice through Tribunals in respect of matters which are purely civil disputes was never contemplated by the Constitution and therefore entry 95 of List I and entry IIA of List III and the erstwhile entry 3 of List II (which is now in the Concurrent List as entry 11A by virtue of the Constitution (42nd Amendment) Act, 1976) provided for administration of justice through courts only. Since all Tribunals are not court the said entries cannot be read so as to include the word 'Tribunal'. It is a settled law that a thing which is non-existent in written law cannot be presumed to exist by interpretation specially when it has the effect of striking at the basic feature of the Constitution.

36. The aforesaid argument is substantiated by the fact that when the Union of India decided to establish Administrative Tribunals for the State of Andhra Pradesh to exercise jurisdiction, power and authority in service matters the Constitution was amended by the Constitution (32nd Amendment) Act, 1973 and with effect from July 1, 1974, the Andhra Pradesh Administrative Tribunal came to be established.

37. Further Part XIV A was inserted in the constitution containing Article 323A and Article 323B by the Constitution (42nd Amendment) Act,

1976. While Article 323A deals with adjudication and trial by Administrative Tribunals of the matters related to recruitment and conditions of service of persons appointed to public service in connection with affairs of the Union and States or other authority, Article 323B deals with a number of other subjects of disputes.

38. It will be seen from the above that a radical change was made in the Constitutional law relating to adjudication of quasi-judicial matters/issues. The petitioners submit that if Parliament had the power to constitute Administrative Tribunals including the residuary power under entry 97 of List I, there would not have been any need or occasion to make any amendment in the Constitution referred to above. In this connection the petitioners also submit that matters relating to rent which was adjudicated by the civil courts were made subject-matter of Article 323B by Clause (2)(h) of the said Article by the Constitution (75th Amendment) Act, 1993.

39. The aforesaid amendments viz. ; the 32nd, 42nd and 75th amendments of the Constitution clearly show that the word 'court' mentioned in entry 11A of List III by any stretch of reasoning will not include Tribunals. The Constitution contemplates and provides for a four-tier system of courts, viz. :

(i) Supreme Court (Articles 124 to 146) ;

(ii) High Courts (Articles 214 to 231) ;

(iii) District Courts and

(iv) Subordinate Courts (Articles 233 to 237).

40. The Tribunal does not fit in with the Scheme of the 4-tier system of courts and that is the precise reason that even the adjudication of quasi-judicial matters/issues by the Tribunal required constitutional amendments referred to above.

41. In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala : [1962]2SCR339 (para. 30 to 33), it was held that the words 'court' and 'Tribunal' are not synonymous and are two different entries. While all courts are Tribunals, all Tribunals are not courts. Whether Tribunals can be called courts, will depend on various factors mentioned in the said decision. In a case reported in 1971 ALR 207 it was held by a Division Bench of this Hon'ble Court held that a Revenue Board is a revenue court.

42. In State of Tamil Nadu v. G.N. Venkataswamy : AIR1995SC21 (paras. 15-17), the question came up before the apex court whether the provisions of Section 52A of the Tamil Nadu Revenue Recovery Act, 1864 (inserted by the Tamil Nadu Revenue Recovery (Amendment) Act, 1972) was a valid piece of legislation or not. The Hon'ble apex court traced the power of the Legislatures to entry 11A of List III by holding that the Collector is a revenue court. The relevant important portion of para. 15 is reproduced below :

'Once it is held, as we have that the Collector is a revenue court then there is no difficulty in holding that Section 52A of the Act was enacted by the Tamil Nadu Legislature under entry 11A, List III, Schedule VII, Constitution of India.'

43. In view of the aforesaid decision the petitioners respectfully submit that the impugned Act establishing Tribunals is a piece of colourable legislation not authorised by the provisions of the Constitution and is ultra vires.

44. It is submitted that Article 248(1) and entry 97 of List I of the Seventh Schedule containing residuary powers of the Parliament can be exercised only when a matter sought to be legislated is not included in List II or List III. Though Article 248 is framed in the widest possible terms, it will not include power to legislate on matters included in the lists referred to above. It is also a settled law as was held in Subhramanyan Chettiar v. Muttuswami Gounder , that resort to the residuary powers should be the very last refuge and it is only when all the categories in the three Lists are absolutely exhausted that one can think of falling back upon a non-descript. As submitted above, since List III contains administration of justice through courts under entry 11A, no residuary power can be resorted to for empowering the Central Legislature to read or to assume that under the residuary powers it has the authority to legislate enactments or statutes providing for administration of justice by Tribunals. Had it not been so the amendment to establish Tribunals for adjudication of quasi-judicial matters/issues by the 32nd, 42nd and 75th Amendments would not have been necessary at all.

45. The provisions of Articles 245 and 246 are subject to the provisions of the Constitution as there is no provision in the Constitution conferring on the Union the power to establish Tribunals for administration of justice with respect to disputes which are judicial in nature and are being disposed of by the courts established under the Constitution namely District Courts and Subordinate Courts, the impugned Act is ultra vires and is liable to be struck down.

46. The petitioner submits that the judiciary enjoys complete independence under the Scheme of the Constitution. The Executive and the Legislature can under no circumstances interfere or have any influence in the judicial matters which are subject-matter of adjudication by courts. The Constitution provides that the control over District Courts and subordinate courts including promotion and posting, etc., shall vest in the High Court. The object behind the said control is that under no circumstances the executive shall have any say in connection with the service conditions of judicial officers, thereby depriving the executive from exercising any influence on the judiciary.

47. The petitioners crave the leave of the court to refer to the Framing of the Constitution, a study by B. Shiva Rao.

48. Chapter II of the impugned Act which contains the qualification and terms of office of Presiding Officers of both Tribunals and Appellate Tribunal provides that the office of the Presiding Officers can be manned only by retired personnel. As the term of office is of five years it shall necessarily prevent any person from pursuing his career as Presiding Officer. The appointment of such officer vests in the Union of India or the Central Government. The Presiding Officer of the Tribunal in view of the aforesaid cannot be said to be immune from executive and political interference and therefore the independent adjudication of disputes is doubtful.

49. The petitioners submit that the impugned legislation is a retrograde step and is against the very scheme of the Constitution. In Dalmia Cement (Bharat) Ltd. v. Union of India : (1996)10SCC104 it is held in para. 21 that the Directive Principles are fundamental in their manifestos and any digression is unconstitutional. Under the scheme of the Constitution, independence of the judiciary is on a very high pedestal and the framers of the Constitution contemplated to provide to the people of India a forum wherein they can have their dispute settled without even a tinge of biasness. The establishment of Tribunals for adjudicating disputes between banks and their constituents and between financial institutions and persons having' business links with them cannot be said to be an independent body enjoying full independence in discharging its duties for the reasons stated above and have failed to instil public confidence in its functioning. Exclusion of the jurisdiction of subordinate courts in matters covered by the impugned Act and conferring the power of the Tribunal is a retrograde step which has the effect of changing the basic structure and feature of the Constitution.

50. The debt sought to be recovered which are due to banks and financial institutions has been defined in Section 2(g) of the impugned Act. These debts are not merely confined to lending/borrowing but also debts which become due in the course of business activities. Section 6 of the Banking Companies Regulation Act, 1949, contains a number of business activities which are undertaken by banks. Similarly, the financial institutions referred to in the impugned Act are those institutions which are mentioned in Section 4A of the Companies Act, 1956, and these institutions take part in a variety of activities. The Tribunals established to recover dues on behalf of these institutions discriminate similarly situated private institutions.

51. Further a number of provisions of the impugned Act have already been referred to by counsel for the other petitioners which clearly go to show that the Act is unreasonable.

52. In Nagaland where the judiciary was separated from the executive recently, the administration of justice is provided by a set of rules namely Rules for Administration of Justice in Nagaland, 1937. This is an existing law and it continues to apply in Nagaland by virtue of Article 372 of the Constitution. It was held in State of Nagaland v. Ratan Singh : 1967CriLJ265 , that the 1937 Rules survived the repeal of the Schedule Districts Act, 1874, and continues to apply in the State of Nagaland.

53. While Section 34 of the impugned Act gives overriding effect over all laws, it is ineffective and cannot be given effect to as the impugned Act is hit by Article 371A of the Constitution. The said provision of the Constitution inter alia provides that no Act of Parliament in respect of ownership and transfers of land and its resources, Naga Customary Laws and procedures amongst others shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland so decides.

54. It is submitted that Rule 32 of the Rules provides that houses etc. may not be attached themselves are subject-matter of the suit. It further provided that land may be sold or temporarily transferred when custom admits of individual right in it being recognised. The aforesaid provisions clearly shows that in the matter of recovery of debts customary practice has a major part to play. In the impugned Act, the Recovery Officer has the power to recover debts by attaching and selling immovable property whether they are subject-matter of the suit or not under the Second Schedule of the Income-tax Act, 1961. The Recovery Officer is neither the authority nor can be vested with the power to decide the customary practice of Nagas unless the State Legislature agrees to have the customary matters adjudicated by the said Recovery Officer. The impugned Act is accordingly hit by Article 371A of the Constitution and its application in Nagaland is specifically barred. It may be stated that the Transfer of Property Act does not apply in Nagaland.

55. Under Naga custom, there is no arrest and detention for not paying debts as provided in Rule 33 of the Rules. The custom is in consonance with the 11th International Convention of Civil and Political Rights as was held in Jolly George Varghese v. Bank of Cochin [1980] 2 SCC 361 ; [1982] 52 Comp Cas 70 (paras 942).

56. The petitioner submits that on the premises as aforesaid the impugned Act may be quashed and declared as non-applicable in the State of Nagaland by virtue of Article 371A of the Constitution of India.

57. In addition to it, Mr. C.K. Sarma Barua, learned counsel makes a submission that this Act violates the right of the petitioner given to him by Section 67 of the Transfer of Property Act as well as by Order 34 of the Civil Procedure Code.

58. Mr. K. Agarwalla, learned counsel submits that besides the other points, the writ petitioners in Civil Rule Nos. 54 of 1998, 363 of 1998, 453 of 1998,

868 of 1998 and 1196 of 1998 have also challenged the transfer of cases pending before the respective trial courts to the Tribunal. The various orders passed by the trial courts transferring the suits pending before them to the Tribunals, as well as the orders passed by the Tribunals in the aforesaid cases up to the same were received on transfer are also challenged in the above noted civil rules. It may be pertinent to mention herein that Civil Rule No. 363 of 1998 relates to a matter wherein after the civil court's preliminary decree and final decree, the matter was pending in an execution proceeding. Civil Rule No. 2238 of 1998 is a case where the application was filed to recover the alleged debt directly before the Tribunal under the Act, 1993. In the other civil rules the suits were pending adjudication before the trial courts wherein declarations were also sought. The basic challenge on the aforesaid facts were the transfer of cases under Section 31 of the Act, 1993. In Civil Rule No. 2238 of 1998, the Tribunal's jurisdiction was challenged in view of Section 17 of the Act, 1993. To appreciate the contentions in this regard, factual aspects are also required to be gone into and I crave leave of this Hon'ble Court to place the facts in brief, case-wise, as follows :

(i) Apex Timbers Pvt. Ltd., v. Union of India (Civil Rule No. 54 of 1998):

Money Suit No. 1 of 1997 was instituted by UCO Bank, Tinsukia in the court of the Assistant District Judge claiming the reliefs as mentioned in the plaint. While the suit was pending for appearance of the defendants (writ petitioners), the same was transferred to the Tribunal by order dated June 4, 1997, wherein it has been specifically mentioned that the suit has been transferred to the Tribunal in pursuance of the circular of the Registrar (J) dated April 29, 1997

On receipt of the aforesaid suit on transfer, the Tribunal passed various orders.

(ii) G.S. Bajaj and Company v. Union of India (Civil Rule No. 363 of 1998):

Title Suit No. 28 of 1988 was instituted by United Bank of India in the court of the Assistant District Judge at Golaghat claiming, inter alia, the following reliefs :

(a) That it be declared that defendant No. 1 is a joint Hindu family business firm under the Mitakshara Hindu law and that defendants Nos. 2, 3 and 4 are joint owners of the said firm, G.S. Bajaj and Co.

(b) That it be declared that there was no conveyance or transfer or sale of the business and stock of the properties of the joint family business G.S. Bajaj and Co. carried on in the name of defendant No. 2 in favour of defendants Nos. 2, 3 and 4 who have succeeded to the joint Hindu family business-defendant No. 1 in equal shares by succession under Hindu law.

(c) That it be declared that defendant No. 4 is the karta and manager of the joint Hindu family business-defendant No. 1.

(d) That it be declared that 4B. 1K. 7Ls of land shown in Schedule C(i) and 19B. 1K. 18 Ls of land shown in Schedule C(ii) are the joint family properties of defendants Nos. 2, 3, and 4 and each of the defendants Nos. 2, 3 and 4 have one-third share in the said lands and the said lands were acquired in the name of defendant No. 4 out of the income from the joint family business and properties of the late Gonpatrai Agarwalla and thereafter from the joint family business carried by defendants Nos. 2, 3 and 4.

The writ petitioners/defendants entered appearance in the aforesaid suit and at the same time approached the bank for settlement of accounts and disputes to which the bank agreed. Writ petitioners did not contest the suit on bona fide belief. However, the bank surreptitiously proceeded with the suit keeping the petitioners in the dark and obtained an ex parte decree against the petitioners. The suit was decreed by order dated December 6, 1991. A preliminary decree was also prepared.

On September 5, 1992, the bank filed an application for passing of final decree for sale of immovable properties. The Assistant District Judge, Golaghat without serving any notice and without giving any opportunity of being heard passed the order preparing final decree on September 5, 1992. The final decree was prepared on September 23, 1992.

Thereafter, the bank filed an application for execution of the decree which was registered as Title Execution Case No. 2 of 1995. The petitioners on receipt of notice to show cause under Order 21, Rule 22 of the Civil Procedure Code appeared on March 30, 1996, and filed an application to keep in abeyance the proceedings as there was a proposal for settlement pending. Accordingly, the execution proceeding was kept in abeyance. While the said proceeding was pending, the petitioners were surprised to receive a notice from the Tribunal. On receipt of the notice the petitioners appeared and filed their objections on September 22, 1997, under Order 47 of the Civil Procedure Code, challenging the executability of the decree in question. The petitioners also raised the points relating to jurisdiction of the Tribunal in respect of adjudication of the decree of the civil court. The Tribunal by order dated September 23, 1997, passed an order rejecting the plea on surmises and conjectures and in total non-application of mind. It was urged that the execution proceeding being not contemplated under Section 31 of the Act, 1993, the Tribunal has no jurisdiction. The Tribunal while rejecting the contention relied on Risk Capital and Technology Finance Corporation Ltd. v. Harnath Singh Bapna : AIR1997Delhi239 . In fact by order dated September 23, 1997, the Tribunal also included property mentioned in Schedule C(I) and C(II) as mortgage properties and hypothecated properties but the materials on record would show that these properties were neither mortgaged properties nor hypothecated properties. A certificate

dated October 6, 1997, was also issued in purported exercise of power under Section 19(7) of the Act, 1993.

(iii) Unidas Agent and Distributors v. Union of India (Civil Rule No. 453 of 1998) :

Title Suit No. 43 of 1998 was instituted by the United Bank of India in the court of the Assistant District Judge, Jorhat claiming, inter alia, the relief as mentioned in the plaint. On receipt of summons, the defendants appeared and some of the defendants filed a written statement. While the suit was pending for adjudication, the same was dismissed for non-appearance of the plaintiff on November 20, 1995.

The plaintiff-bank filed an application on November 27, 1995, for restoring the suit. On receipt of notice some of the defendants appeared. Thereafter, various orders were passed in Miscellaneous (J) Case No. 156 of 1995, During the pendency of the aforesaid miscellaneous case for restoration of suit, by order dated September 2, 1997, sent the suit to the District Judge, Jorhat for onward transmission to the Tribunal. The District Judge by order dated September 11, 1997, transferred the case to the Debt Recovery Tribunal in view of the circular dated April 29, 1997, issued by the Registry of this Hon'ble court. On receipt of the title suit on transfer it was re-registered as O.A. No. 194 of 1997 and thereafter by order dated October 6, 1997, notices were issued fixing December 4, 1997, for appearance. On December 4, 1997, the petitioners appeared before the Tribunal and filed two applications, one seeking time to file objections against the application under Order 9, Rule 4 of the Civil Procedure Code, and another challenging the jurisdiction of the Tribunal on the grounds mentioned in the said application basically on the premises that as the suit was dismissed for default, no suit or other proceeding as contemplated under Section 31 of the Act, 1993 was pending before the trial court on the date of passing of the order dated September 2, 1997, and September 11, 1997. The Tribunal passed order dated December 4, 1997, rejecting the application challenging the jurisdiction.

(iv) Yelling Wood Product v. Union of India (Civil Rule No. 868 of 1998) :

The suit being Title Suit No: 2 of 1994 was instituted by Central Bank of India in the Court of the Assistant District Judge, Dibrugarh claiming' the reliefs as mentioned in the plaint. On receipt of summons, the defendants--writ petitioners appeared in the suit and filed their written statement jointly on January 17, 1996. Thereafter, various dates were fixed for filing documents and framing issues. By order dated June 17, 1997, the learned Civil Judge (Senior Division), Dibrugarh transferred the aforesaid suit to the Tribunal in view of the circular dated April 29, 1997, issued by the Registry of this Hon'ble court. On receipt of the record of the suit by the Tribunal, the Tribunal passed various orders including the orders issuing notices/summons to the parties.

(v) Lalji Singh v. Union of India (Civil Rule No. 1196 of 1998) :

Title suit No. 11 of 1994 was instituted by Central Bank of India in the Court of the Assistant District Judge, Tinsukia claiming the reliefs as mentioned in the plaint. On receipt of summons the defendant appeared in this suit and filed their joint written statements on December 14, 1995. Thereafter, various orders were passed, including framing of issues. By order dated May 15, 1997, the learned Civil Judge (Sr. Division) Dibrugarh transferred the suit to the Tribunal in view of the circular dated April 29, 1997, issued by the Registry of this Hon'ble court. On receipt of the record the Tribunal passed various orders issuing notices/summons.

(vi) Polymac Plastic Industry v. Union of India (Civil Rule No. 2238 of 1998):

The State Bank of India filed an application being O.A. No. 43 of 1998 before the Tribunal on March 17, 1998, claiming the reliefs as mentioned therein. By order dated March 17, 1998, the Tribunal issued summons to the defendants. The defendants appeared and filed application for time. At this stage the petitioner approached the Hon'ble High Court filing the present writ petition.

59. It may be relevant to mention herein that Section 31 of the Act, 1993 provides that every suit or proceeding pending before any court immediately before the establishment of a Tribunal, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if had arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal. Section 31 of the Act, 1993, however, exempts the pending appeals before any court. Section 31 of the Act, 1993 further provides that where any suit or other proceeding stands transferred from any court to Tribunal under Sub-section (1) of Section 31, the court shall, as soon as may be after such transfer, forward the records of such suit or other proceeding to the Tribunal. It further provides that on receipt of such records, the Tribunal may deal with such suit or other proceeding, so far as may be, in the same manner as in the case of an application made under Section 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.

60. In this context it may also be relevant to mention herein that on April 29, 1997, the Registrar of the Gauhati High Court issued a circular directing the subordinate civil courts under the administrative control of the Gauhati High Court to transfer the bank or financial institution cases of the value of Rs. 10 (ten) lakhs and above pending in their courts which are exclusively triable by the aforesaid Tribunal only, in view of the establishment of the Debt Recovery Tribunal at Guwahati having jurisdiction over all the 7 (seven) States of North-Eastern Region. The orders of transfer passed by the civil court referred to earlier show that the civil court

transferred the suits in question without application of mind as to whether they are suits covered by Section 31 read with Sections 17, 18 and 2(g) of the Act, 1993 and transferred the same merely on the basis of the circular dated April 29, 1997. A bare perusal of the provisions of the aforesaid sections, namely Sections 3, 17, 18 and 31 of the Act, 1993 and the circular dated April 29, 1997, would clearly show that the Tribunal will entertain applications from banks and financial institutions for recovery of 'debts' due to them. 'Debt' has been defined under Section 2(g) of the Act, 1993. The aforesaid definition of 'debt' would clearly show that debt means any liability 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 application.

61. It is respectfully submitted that the bare perusal of the plaint and reliefs sought in the suits referred to above clearly transpires that the suits are not simpliciter and/or application simpliciter for recovery of debt as defined under Section 2(g) of the Act, 1993, but the suits are for declaration, recovery or alleged dues and for attachment and sale of mortgaged and hypothecated properties with various other reliefs. This being the factual and legal position, the Tribunal has no jurisdiction, power or authority to entertain and decide the suits transferred or application filed under Section 17 of the Act, 1993. It may be submitted herein that such type of suits or proceedings also cannot be transferred and dealt with by the Tribunal under Section 31 of the Act, 1993. It may be relevant to mention herein that Title Suit No. 43 of 1988 which is a subject-matter of Civil Rule No. 453 of 1998 was not even pending as the same was dismissed for default on November 20, 1995, and the same was not restored on the date of passing of the order, i.e., September 2, 1997 and September 11, 1997, transferring the same to the Tribunal. In fact on the aforesaid date Miscellaneous (J) Case No. 156 of 1995 for restoring the suit to the file was pending before the trial court. It is, therefore, humbly submitted that no suit or proceeding of the nature described under the Act, 1993 was pending before any court and, as such, the aforesaid suit or Miscellaneous (J) case cannot be transferred to the Tribunal under the provisions of Section 31 of the Act, 1993. It is further submitted that assuming for the sake of argument that the suit was pending at the time of transfer, in view of the relief sought it cannot be transferred to and dealt with by the Tribunal particularly in view of Sections 17 and 18 of the Act, 1993 inasmuch as the Tribunal has no jurisdiction, power and authority to entertain and decide such suits or proceedings.

62. It may be relevant to mention herein that in Civil Rule No. 363 of 1998, Title Suit No. 28 of 1988 was decreed ex parte and preliminary decree was prepared and thereafter final decree was passed without showing cause or providing opportunity of being heard. In fact at the time of

transferring Execution Case No. 2 of 1995 along with the records of the suits, the execution proceeding was kept in abeyance in view of the pendency of the petitioners' proposal to the bank for settlement of the claim and dispute on amicable terms and condition. In fact the relief sought in the aforesaid suit clearly transpires that several declarations were sought which is impossible for the Tribunal to adjudicate. The facts narrated above in the preceding paras would clearly show that neither any suit nor other proceeding was pending before the trial court as mentioned in Section 31 of the Act, 1995. I humbly submit that a decree of the Civil Court cannot be executed by the Tribunal in view of the provisions of the Act, 1993, more particularly Sections 3, 17 and 18 of the Act, 1993. The other proceeding mentioned in Section 31 of the Act, 1993 cannot be stretched too far to include execution proceeding inasmuch as it will be beyond the objects and Scheme of the Act, 1993. It is most respectfully submitted that, the petitioners have a right to challenge the executability of the decree which are inherent in it and such decision cannot be given by a Tribunal constituted under the Act, 1993. In this context the provisions contained in Order 21, Rule 10 of the Civil Procedure Code and Section 47 of the Civil Procedure Code may be relevant. Order 21, Rule 10 provides in very specific terms that where a holder of a decree desires to execute it, he shall apply to the court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions contained in Rules 5 and 6 of Order 21 to another court then he may apply to such court. Section 47 also provides that all questions arising between the parties to the suit in which the decree was passed or relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.

63. In view of the provisions above, it clearly transpires that a decree passed by a civil court can only be executed by the civil court and none else. The Tribunal not being a 'court' or 'civil court' the execution proceeding pending before the court of the Civil Judge (Senior Division), Golaghat cannot be transferred to the Tribunal, as has been done in the instant case. The provisions of Section 31 read with Sections 3, 17 and 18 of the Act, 1993 also do not contemplate transfer of execution proceedings pending. The decision of the apex court rendered in Merla Ramanna v. Nallaparaju : [1955]2SCR938 (paras. 7, 12 and 13) would also support the above contention wherein it was held that the executability of the decree can only be agitated by way of an application before the court executing the decree under Section 47 of the Civil Procedure Code and as per Order 21, Rule 10, it is only the civil court which can execute the decree and entertain the application.

64. In Ranjit Chakravarty v. State of Assam , a similar question arose regarding the jurisdiction of the Assam Administrative Tribunal under Section 9 of the Assam Administrative Tribunal Act, 1977, and a Full Bench of this court negated the preliminary objection raised by the State and held that the Letters Patent Appeal pending before the Division Bench of this Hon'ble court cannot be transferred to the Assam Administrative Tribunal under Section 9, inasmuch as the jurisdiction of the civil court has not been ousted to grant declaration as sought for.

65. Section 22 of the Act, 1993 provides for procedure and powers of the Tribunal and the Appellate Tribunal wherein it has been provided that subject to the other provisions of the 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. The word 'regulate' according to the Shorter Oxford Dictionary means 'to control, govern or direct by rule or regulations, to subject to guidance or restrictions'. The word 'regulate' according to Black's Law Dictionary (5th edition) means 'to fix, establish, or control; to adjust by rules, method or established mode'. The apex court in several decisions rendered, interpreted the word 'regulate' and held as follows :

'The word 'regulate' has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and the court while interpreting the expression must necessarily keep in view the object to be remedied.' Jiyajeerao Cotton Mills Ltd. v. Madhya Pradesh Electricity Board : AIR1989SC788 and K. Ramanathan v. State of Tamil Nadu : [1985]2SCR1028 .

66. The word 'regulate' under Section 22 of the Act, 1993 has to be given its meaning in the context of the Act and rules and it cannot mean that the Tribunal has the power to frame regulations or to regulate its procedure which are contrary to and inconsistent with the Act, 1993 and the rules made thereunder. Therefore, the framing of the Debts Recovery Tribunal Regulations of Practice, 1997 by the Tribunal is beyond its competence and, as such, it is liable to be declared ultra vires.

67. Chapter XII of the aforesaid regulations deals with judgment and issue of certificate, wherein Clauses 51 and 52 are required to be dealt with in connection with transfer of an execution proceeding to the Tribunal and exercising of power over the same. A bare perusal of the aforesaid clauses clearly shows that the Tribunal framed these two clauses in excess of their power and jurisdiction under Section 22 of the Act, 1993. In fact Clauses 51 and 52 give arbitrary and uncanalised power to the Tribunal to sit in appeal over the decree of the civil court. That being the position, the Tribunal cannot exercise power on the execution proceeding transferred illegally even by virtue of the aforesaid clauses. The Tribunal by framing the aforesaid regulation of practice in excess of its power and authority unruly horse and it requires control. If we carefully read again and again the provisions of Section 22(1), it clearly shows that direction has been

given by the said section to the Tribunal to regulate its own procedure within the frame-work of the Act and Rules and not to frame its own regulation under the garb of regulating its own procedure. In view of the above transfer of the execution proceeding to the Tribunal as well as the impugned order passed by the civil court as well as the Tribunal referred to in the prayer are liable to be set aside and quashed.

68. In view of the submissions made above the petitioners in the above noted civil rules are entitled to their reliefs as prayed for setting aside the impugned order of transfer as well as subsequent orders passed by the Tribunal and the suits and/or proceedings are liable to be sent back to the respective civil courts for de novo trial from the stage reached before the impugned transfer to the Tribunal.

69. In the context of the submissions made above, the petitioners are relying on some of the decisions of the apex court which may render little assistance to the Hon'ble court to adjudicate the issues raised. The broad proposition are that right to sue is a common law remedy and it can be taken away by special enactments providing adequate remedy to do what the civil court would normally do in a suit and there must be finality to orders of the special Tribunal. The decisions rendered by the Hon'ble Supreme Court while interpreting provisions of special enactments barring the jurisdiction of the civil court may be of assistance to show that Section 18 of the Act, 1993 has not barred the jurisdiction of the civil court in the matter of adjudicating declaratory suits and also Section 17 of the Act, 1993 has not conferred jurisdiction, power and authority to entertain and decide application of the nature referred above.

70. There is no direct case decided by the Hon'ble Supreme Court interpreting the words 'other proceedings' as far as the petitioners know. In Civil Rule No. 363 of 1998 wherein the execution proceeding was transferred from civil courts, the petitioner challenged the said transfer on the ground that 'other proceeding' does- not mean the execution proceeding. However, the Tribunal relied on the decision in Risk Capital and Technology Finance Corporation Ltd. v. Harnath Singh Bapna : AIR1997Delhi239 and rejected the contention of the petitioner. A close and careful perusal of the aforesaid decision shows that in the above referred case the Delhi High Court interpreted the words 'other proceeding' in the context of an application for setting aside an ex parte decree. The analogy of the aforesaid case cannot be relied on to interpret 'other proceeding' to include execution proceeding also. Though there is no direct decision in this respect the following decision may be of little assistance to interpret 'other proceeding'.

71. The word 'debt' is of prime importance as defined in Section 2(g) of the Act, 1993. The Hon'ble Supreme Court in United Bank of India v. Debts Recovery Tribunal : [1999]2SCR496 interpreted

the word 'debt'. The Hon'ble Supreme Court was of the view that whether a particular claim of a bank or financial institution falls within the jurisdiction of Tribunal or not in view of the provisions of Sections 17(1), 3(1), 2(g), 18 and 37, the entire averment in the plaint has to be examined to find out whether notwithstanding the constitution of the Tribunal there are claims which cannot be entertained and decided by the Tribunal and Tribunal's jurisdiction is ousted.

72. The petitioners have also contended as far back as in 1998 itself that reading the plaint as a whole and the reliefs claimed as well as interpreting Sections 2(g), 3, 17, 18 and 31 of the Act, 1993, it can be safely said that the suits and/or proceedings of the nature referred in the aforesaid civil rule cannot come within the ambit of the Act, 1993, as such, the Tribunal has no jurisdiction, power and authority to entertain and decide the same.

73. The contentions of the writ petitioners in the aforesaid civil rules can find further support from the latest decision of the Hon'ble Supreme Court rendered in Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. : [1999]3SCR759 (August issue), wherein the Hon'ble Supreme Court while examining the power of Tribunal vis-a-vis the civil court observed in para. 12 as follows (page 124) :

'It will, thus be seen that while there are no limitations on the powers of the Tribunal under the Act, the Legislature has thought fit to restrict the powers of the authorities under various enactments while exercising certain powers under those enactments. We have to give meaning to Section 22 of the Act, as here the Tribunal is exercising power of a civil court while trying a money suit.'

74. This decision supports the contention of the petitioners that the Tribunal has the jurisdiction, power and authority to entertain and decide the application and/or transferred suits and proceedings which are in the nature of money suit or suit simpliciter for recovery of debts and debts only.

75. Before we go to the submission made by learned counsel, let us go through some of the provisions of the Act. Section 17 of the Act is the jurisdiction, powers and authority of Tribunals. Section 18 is the bar of jurisdiction of other courts or authority except the Supreme Court and High Court. Section 25 is the modes of recovery of debts. Section 28 is the other modes of recovery. Regarding Section 28, it is submitted by learned counsel that the Recovery Officer creates another Tribunal within the Tribunal constituted and the powers given to the Recovery Officer are unreasonable, unguided and arbitrary. It is submitted that the Recovery Officer can create havoc. It is further submitted that no qualification has been prescribed with regard to the Recovery Officer, and he without any qualification is exercising judicial power without any control of the Presiding

Officer. It is submitted by Mr. P.N. Choudhury, learned Central Government standing counsel, that the submission made with regard to the power and qualification, etc., of the Recovery Officer is not correct and there is a notification prescribing the qualification for Recovery Officer and on the basis of instruction received by him from the Registrar of the Debt Recovery Tribunal, he submits that the qualifications for the different officers are as follows :

'Requisite qualifications/experience and service conditions required for the following posts :

Secretary Registrar

(i) Person holding analogous posts

having eight years regular service as under secretary or an equivalent post in the scale of Rs. 3,000- 4,500.

(ii) Preference will be given to those who have legal back-ground and specialisation in recovery matters.

Recovery officer

Holding analogous post or 'having eight years regu-lar service as section officer in the scale of pay of Rs. 2,000-3,500.

Preference will be given to those who have legal back-ground and specialisation in recovery matters.

Private secretary

Holding analogous post

having eight years service in the scale of Rs. 1,640-2,900 (P. A/Gr. 'C').

Section officer

Holding analogous post or assistant having eight years service in the grade (preference will be given to law graduate).

Assistant/research assistant

Holding analogous post or UDC having five years regular service in the grade.

UDC

Holding analogous post or LDC having five years regular service in the grade (preference will be given to those having experience in house keep-ing and cash work including preparation of pay bill and other contingent bills.

LDC/Typist

Holding analogous post or having five years regular service as Steno Grade D.

Steno Grade 'D'

Holding analogous post or LDC having five years regular service with 80 wqrds per minute speed in English shorthand and 40 words per minute in English typing.

10.

Staff car driver

Holding analogous post or peons with five years regular service with experience of driving cars/ van and having licence from transport authority.'

76. No such notification was produced before me, save and except the note from Registrar. Learned counsel could not throw any light regarding

source of this note, This note cannot be accepted as laying down the qualification. Even the qualification depicted in the note is not proper and adequate qualification for such an important office with such drastic powers.

77. There is a set of rules known as the Debt Recovery Tribunal (Salaries, Allowances and Other Terms and Conditions of Service of Presiding Officer) Rules, 1995. But that also does not provide the qualification for appointment of the Recovery Officer. Further, it is submitted that the Recovery Officer has been given excessive judicial power which cannot be given without making provision in the statute and declaring/deeming him to be judicial officer. It is alleged that on this ground alone, this particular Section, i.e., Section 28 of the impugned Act regarding recovery of the amount should be struck down.

78. If this Section 28 is struck down, then the whole basis/purpose of the Act shall fall through and the Act will be an illusory one.

79. Section 36 is the power to make Rules. Section 36 is quoted below :

'36. Power to make rules--(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :

(a) the salaries and allowances and other terms and conditions of service of the Presiding Officers, Recovery Officers and other Officers and employees of the Tribunal and the Appellate Tribunal under Sections 7, 12 and 13 ;

(b) the procedure for the investigation of misbehaviour or incapacity of the Presiding Officer of the Tribunals and Appellate Tribunals under Sub-section (3) of Section 15 ;

(c) the form in which an application may be made under Section 19, the documents and other evidence by which such application shall be accompanied and the fees payable in respect of the filing of such application ;

(d) the form in which an appeal may be filed before the Appellate Tribunal under Section 20 and the fees payable in respect of such appeal;

(e) any other matter which is required to be, or may be, prescribed.

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of the session immediately following the session or the successive sessions, aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no

effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.'

80. The argument regarding rule making power was that the matters in which rules can be made have been prescribed. Certain rules which have been made without the rule making power cannot be deemed to be valid. The following are the rules made :

(i) The Debts Recovery Tribunal (Procedure) Rules, 1993 ;

(ii) The Debts Recovery Appellate Tribunal (Procedure) Rules, 1994 ;

(iii) The Debts Recovery Tribunal (Financial and Administrative Power) Rules, 1997 ;

(iv) The Debts Recovery Appellate Tribunal (Financial and Administrative Power) Rules, 1997 ;

(v) Debts Recovery Tribunal Regulations of Practice, 1997 for Debt Recovery Tribunal at Guwahati with the approval of Ministry of Finance and this Regulation of Practice came into force in Debt Recovery Tribunal at Guwahati with effect from June 10, 1997 vide Order No. Debts Recovery Tribunal DRT/GUWA/Corr/Trib/3(2) 97 dated June 10, 1997.

81. Mr. P.N. Choudhury, learned Central Government Standing Counsel submits that this has been made in exercise of the power under Sub-section (1) of Section 22 of the Act of 1993.

82. It is the common experience that borrowers after having taken the money from banks and financial institutions always resort to delay in order to avoid payment and it is in that process that banks and financial institutions suffer inasmuch as they are compelled to go to the civil court for recovery of the money. It was on this background that this Act was introduced in order to have speedy recovery of the loans. The object of the Act no doubt is a laudable one. We must also bear in mind one thing that there is nothing sacrosanct for the civil court, a mechanism which is a substitute of the civil court with proper procedure adhering to the principles of fairness and justice can be introduced. There is not an iota of doubt that such an institution and the alternative mechanism can be brought into existence and more so if it is for the public good inasmuch as it is the fundamental principle of law that a law which brings maximum happiness to the society must be upheld.

83. The broad points urged by learned counsel for the parties can be divided in the following heads :

(i) legislative competence ;

(ii) whether the impugned Act undermines/erodes the independence of the judiciary, thus affecting the basic features of the Constitution ;

(iii) whether the Act is arbitrary and/or violative of Article 14 of the Constitution;

(iv) there are some other submissions with regard to some civil rules that this Act is violative of Article 371A of the Constitution with regard to the cases of State of Nagaland ;

(v) That Sections 17, 25, 28 and 31 of the Act are to be struck down being violative of the Constitution, arbitrary, unreasonable and have created anomalous and absurd situation/state of things.

84. Mr. K Agarwalla, learned counsel appearing on behalf of some of the writ petitioners also submits that a decree of the civil court cannot be transferred to the Tribunal and the Tribunal has no jurisdiction to execute those decrees through the Recovery Officer by adopting the certificate procedure.

85. In the case of the Punjab and Haryana High Court in Kundan Rice and General Mills v. Union of India [1998] 92 Comp Cas 895 it has been held that the provisions of entry 43 read with entry 95 in List I and entry 11A in List III, the provisions of the Act are clearly within the legislative competence of Parliament.

86. Let us have a look at entries as mentioned in the judgment of the Punjab and Haryana High Court- Entry 43 in List I deals with the following things :

'43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co-operative societies.'

87. Entry 95 is the jurisdiction and powers of all courts, except the Supreme

Court, with respect to any of the matters in this list. Entry 11A in List III:

Concurrent List is with regard to administration of justice ; constitution

and organisation of all courts, except the Supreme Court and the High

Court.

88. Before we go to the entries, it must be borne in mind that the various entries in the Lists should be given the widest scope and there should not be any implied restriction on the legislation in exercising the legislative power in a fair and reasonable manner. The next thing we should bear in mind that the vires of the Act is challenged on the ground of competence and there is no implied restriction on the power. It is difficult to ascertain such a limit, the court should see that the Tribunal in fact functions as such substitute and becomes an institution in which the general public could repose faith and trust.

89. In the case of the Delhi High Court in Delhi High Court Bar Association v. Union of India [1998] 92 Comp Cas 849, the Delhi High Court pointed out that this Tribunal shall come within entry 11A of the Concurrent List. Reliance was placed on a judgment reported in Kedarnath Gupta v. Nagindra Narayan Sinha AIR 1954 Patna 97, and it was pointed out that administration of justice is wide enough to include in it not merely administration of justice through courts properly so-called, but administrative justice that is justice through the machinery of Administrative Tribunals.

90. In this particular case, a further argument was made on behalf of the respondents that even this enactment may come within the residuary power, entry 97 as well as Article 248A of the Constitution of India read together.

Before we go to that aspect of the matter, let us have a look at the decision of the apex court in State of A. P. v. McDowell and Co. : [1996]3SCR721 wherein para. 43 it has been pointed out as follows (page 737) :

'The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground.'

91. So, only on three grounds the validity of an Act can be challenged as quoted above. So, we must look to that aspect of the matter also.

92. In interpreting a statute we must, inter alia, follow the following principles which have emerged :

(i) If a particular interpretation will ensure the validity of law, that interpretation must be given.

(ii) The statute has to be read as a whole as to make it valid and if possible an interpretation leading to a contrary position should be avoided.

(iii) A construction which would leave without effect some portion or the language of the statute will normally be rejected.

(iv) Statutory construction which fulfils the mandate of the statute must find favour with the judges, except when the words and the context rebel against such flexibility. One should be liberal rather than lexical when reading the meaning of a legislation.

(v) The Legislature is presumed to enact a law which does not contravene the Constitution.

(vi) The construction to avoid absurdity is to be adopted.

(vii) An overzealous infusion of constraint and conditions can make the provisions of the statute constitutional by vulnerable but the vested right of a person cannot be made to depend on compliance with unreasonable restrictions. But at the same time, the beneficent provision must be saved if possible and not jettisoned.

(viii) To sustain a law by interpretation is the rule. To be trigger happy in shooting at sight every suspect law is judicial legicide.

(xi) In the garb of liberal construction, a judge cannot create an anomalous situation which may lead to absurdity and injustice. If it is shown that the law creates an anomalous situation and leads to absurdity

and injustice and if it is made vulnerable to a constitutional challenge on the ground of infraction of the various provisions of the Constitution such a law is to be struck down.

(x) Law should not be static, no doubt it should grow but it should have legitimate birth. It should be the result of the exercise of legislative power that the departure from expressed provisions of a statute or an established practice procedure is to be made.

93. The Supreme Court has evolved the doctrine that the court's function is not simply to take a negative attitude by striking down un-constitutionality but to take affirmative attitude by issuing direction to the Government as to what to do in future to avoid such unconstitutionality. In that earliest case where this doctrine was evolved the judgment was passed by Iyer, J. for a Bench of two (State of Kerala v. T.P. Roshana : AIR1979SC765 paras 34 and 40). This doctrine was applied in a case of unconstitutionality of an administrative action and the court issued such direction after striking down the invalid scheme as a complementary remedy.

94. In I.T. C. v. State of Karnataka [1985] Suppl. SCC 476 , Mukharjee, J. in a Bench of three has extended the doctrine to the jurisdiction under Article 226 and to a case of unconstitutionality of a law suggesting that where a law could be saved from unconstitutionality if implemented in a proper manner the court may instead of striking down the law make proper direction to the Government. This proposition was not accepted by some jurists as correct proposition of law as in the judgment itself, Mukherjee, J. himself says 'if a law is bad, the court must strike it down'. Be that as it may, that decision is binding on me and it will be seen whether the same principle can be applied in this case also.

95. Let us come to entry 11A. This entry was inserted by the Constitution (42nd Amendment) Act, 1976, transferring a portion from entry 3 of List II. The administration, of justice was in the State List. This administration of justice with its wide expression includes the power to try suits and proceedings of civil or criminal nature and also the jurisdiction of courts.

96. In State of Bombay v. Narottamdas Jethabai : [1951]2SCR51 , the original entry in the State List came up for consideration and the Supreme Court pointed out that the legislative power conferred on the Provincial Legislature by item 1 of List II has been conferred by use of language which has the widest amplitude (administration of justice and constitution and organisation of all courts). The phrase employed would include within its ambit legislative power in respect of jurisdiction and power of courts established for the purpose of administration of justice. This power conferred by item 1 of List II is not curtailed or limited by the power of legislation conferred on the two Legislatures. It may be noted herein that vide the 42nd amendment of the Constitution the entries which have been made in entry 11A were omitted from entry 3 in the State List.

97. Entry 11A came up for consideration before the apex court in Special Courts Bill, 197S, In re : [1979]2SCR476 , where in paras. 44 and 45 it has been held as follows (page 498) :

'44. The challenge to the legislative competence of Parliament to provide for the creation of special courts is devoid of substance. Entry 11A of the Concurrent List relates to 'administration of justice, constitution and organisation of all courts, except the Supreme Court and the High Court'. By virtue of Article 246(2), Parliament has clearly the power to make laws with respect to the constitution and organisation, that is to say, the creation and setting up of Special Courts. Clause 2 of the Bill is therefore within the competence of Parliament to enact.

45. The field of legislation covered by entry 11A of List III was originally a part of entry 3 of List II. By Section 57(b)(ii) of the 42nd Amendment Act, 1976 which came into force on January 3, 1977 that part was omitted from entry 3, List II and by Clause (c) of Section 57, it was inserted into List III as item 11A. This transposition has led to the argument that the particular amendment introduced by Section 57(b) (iii) and (c), is invalid since it destroys a basic feature of the Constitution as originally enacted, namely, federalism. We are unable to appreciate how the conferment of concurrent power on Parliament in place of the exclusive power of the States, with respect to the constitution and organisation of certain courts affects the principle of federalism in the form in which our Constitution has accepted and adopted it. But assuming for the sake of argument that vesting of such power in the States was a basic feature of the Constitution, we have to take the Constitution as we find it for the purposes of this reference. The plainest implication of the question referred to us by the President is whether, on the basis of the existing constitutional provisions, the Bill or any of its provisions, if enacted, would be invalid. We, cannot therefore entertain any argument in this proceeding that a constitutional provision introduced by an amendment of the Constitution is invalid.'

98. A bare perusal of the decision of the apex court will show that this entry 11A is the power available to Parliament with regard to administration of justice; constitution and organisation of all courts, except the Supreme Court and the High Courts. There is no mention regarding constitution of Tribunal and as such, power of constitution of Tribunal was not available under entry 11A. The Legislature must be assumed to know the difference between Tribunal and court. The Tribunal cannot be brought within the sweep of this entry. The court is not free to stretch or pervert the language in the interest of any legal or constitutional theory or even for correcting supposed errors. The doctrine of ancillary power would not enable the Legislature to do something which the entry does not empower. If the law has no rational connection with the entry, subject-matter of entry, the law cannot be deemed to be within that entry. The court should always guard

against extending the meaning of the words beyond their reasonable connotation in an anxiety to preserve the power of the Legislature.

99. I respectfully differ from the judgment of the Delhi High Court in Delhi High Court Bar Association v. Union of India [1998] 92 Comp Cas 849 on this point.

100. Next let us see the entries 43 and 95 as mentioned in the Punjab and Haryana High Court in Kundan Rice and General Mills v. Union of India [1998] 92 Comp Cas 895. A bare reading of entries 43 and 95 will show that the matter establishment of Tribunal is not covered by these two entries. Entry 43 is with regard to incorporation, regulation and winding up trading companies, etc. Does the establishment of Tribunal come within the purview regulation. The word 'regulation' received judicial interpretation in a number of cases (see Municipal Committee, Malerkotla v. Haji Ismail ; Purxotoma Ramanata Quenion v. Union of India AIR 1970 Goa 35 ; Sujatha Touring Talkies v. State of Karnataka AIR 1986 Kar 21 ; City of Toroute v. Virgo [1896] A.C. 88 ; Indu Bhusan Bose v. Rama Sundari Debi : [1970]1SCR443 ). The meaning is to control, govern or direct by rule or regulation how to conduct its affairs, it seems to imply the continued existence of that which is to be regulated or governed (see City of Toroute v. Virgo [1896] A.C. 88, at page 931). It does not give power to the Legislature to bring a new state of things by destroying the old state of things in totality. So the Act does not come within entry 43. Let us take up entry 95. It is with regard to power and jurisdiction of all Courts etc. The Act cannot come under this entry by no stretch of imagination.

101. So, I disagree with the Punjab and Haryana High Court in Kundan Rice and General Mills v. Union of India [1998] 92 Comp Cas 895 on this point.

102. Learned counsel for petitioner submits that Part XIV makes provision for Tribunals by inserting Articles 323A and 323B and that power is not available in those two articles. There can be no power to enact and/or legislate for a Tribunal save and except by resorting to these two provisions, Article 323A provides for administrative Tribunals and Article 323B provides for Tribunal for other matters and what are the matter that has been enumerated under Article 323B(ii) and in those enumeration that power to have Tribunal for recovery of debts is not available. The learned counsel points out that as and when the Legislature wanted to have this power, that made necessary amendment of the Constitution and inserted Article 323, i.e., Clauses (h), (i) and (j). Learned counsel argues that earlier also the Legislature wanted to have Tribunal in the State of Andhra Pradesh and it inserted Article 371D(3) in the year 1973 with effect from July 1, 1974. The argument is made that if the residuary power had been available there would have been no necessity to amend as indicated above. Learned counsel for respondents places reliance on the following decisions with regard to the availability of residuary power :

1. The Second Gift-Tax Officer, Mangalore v. D.H. Nazareth : [1970]76ITR713(SC) , wherein para. 5 the Supreme Court pointed out as follows (page 717) :

'If however, no entry in any of the three lists covers it, then it must be regarded as a matter not enumerated in any of the three lists. Then it belongs exclusively to Parliament under entry 97 of the Union List as a topic of legislation.'

That was the case with regard to the Gift-tax Act and the Supreme Court pointed out that there was no entry in the Union List or the Concurrent List and as such it will come within the residuary power.

2. Sat Pal and Co. v. Lt. Governor of Delhi : [1979]3SCR651 , wherein the Supreme Court relying on an earlier decision reported in Union of India v. Harbhajan Singh Dhillon : [1972]83ITR582(SC) , in para. 8 laid down the law as follows (page 1553 of AIR 1979 SC) :

'It was, however, said that entry 51 in the State List being a specific entry providing for levy of duty either on manufacture or import of country liquor and there being no other specific entry enabling to levy special duty it is inconceivable that the framers of the Constitution should have left some such levy on the import of country liquor in respect of Delhi under residuary entry. In other words, it was said that where there is a specific entry the legislation must squarely fall within the entry and correspondingly it must be assumed that it would not be covered by the residuary entry. In fact the argument went so far that before resort could be had to the residuary entry 97 the court in its exploration to ascertain under which entry the legislation falls, must proceed from the beginning' and in its journey till entry 97 if it falls somewhere removing the camouflage under which the legislation is sought to be taken out from the specific entry, it would not be proper to say that the legislation is covered by the residuary entry. Whenever legislative competence is in question attempt of the courts is to find out whether the legislation squarely falls in one or the other entry. If a particular legislation is covered by any specific entry well and good. If it does not, the second question would be is it beyond the legislative competence of Parliament In undertaking this exercise it is quite often known that a legislation may be covered by more than one entry because an analysis has shown that the entries are overlapping. If the legislation may fall in one entry partly and part of it may be covered by the residuary entry, the legislation would nonetheless be immune from the attack on the ground of legislative competence. This was the approach adopted by a seven judges Bench of this court in Union of India v. Harbhajan Singh Dhillon : [1972]83ITR582(SC) , wherein while examining the constitutional validity of the amended Wealth-tax Act which included the capital value of agricultural land for the purpose of computing net wealth, the controversy was

whether the impugned Act was a law with respect to entry, including entry 49 in List II or was it one under entry 86 read with entry 97 or entry 97 itself of the List I. Repelling the contention of legislative incompetence this court held that there is nothing in the Constitution to prevent Parliament from combining its powers under one or other entry with its power under entry 97. The terse observation is that this court knows no principle which debars Parliament from relying on the powers under the specified entries 1 to 96, List I and supplement them with the powers under entry 97, List I and Article 248 or even the powers under entries in the Concurrent List. This authoritative pronouncement would answer the contention that while legislating for the Union Territories, Parliament unhampered by Article 246(2) and (3) but enriched by Article 248(1) and (2) could legislate on any of the topics either in List I or in List II or in exercise of the residuary power under entry 97. There is thus no dearth of legislative competence of Parliament to enact legislation for a territory not included in a State because the power to legislate takes within its sweep matters included in all the three Lists and added to it is the residuary power on matters not specifically included in any entry in any of the three Lists.'

103. Mr. A.K. Phookan, learned counsel, in this connection draws my attention to the comment by H.M. Seervai in the book Constitutional Law of India wherein the learned author pointed out that if a subject of legislation was prominently present to the minds of the framers of the Constitution it would not have left it to be found by the courts in the residuary powers. That aspect to the matter was considered by the apex court in para. 9 of the judgment in the case in Sat Pal and Co. v. Lt. Governor of Delhi : [1979]3SCR651 , and was not accepted by the apex court as laying down the correct principle of law. Reliance was placed in the subsequent decision in the case of Kesavananda Bharati Sripadagalvaru v. State of Kerala : AIR1973SC1461 . But that also was not accepted by the apex court. In the same volume in Shetkari Sahakari Sakhar Karkhana Ltd. v. Collector of Sangli : [1980]1SCR982 , in the Supreme Court pointed that entry 97 in List I of the Seventh Schedule to the Constitution provides full legislative competence to Parliament in relation to the Central Act inasmuch as it vests all residuary powers of legislation in Parliament.

104. State of Karnataka v. Union of India : [1978]2SCR1 : That was a case

where the question which arose was whether the Central Government can

issue a notification to constitute the Commissions of Inquiry Act, and it

was in that connection that the residuary powers was considered by the

Supreme Court.

105. In State of Tamil Nadu v. G.N. Venkataswamy : AIR1995SC21 the Supreme Court had to consider entry 11A to List III and the Supreme Court in that case found that entry 11A applied to a court only and in that

case it was found that the Collector is a court. That decision also shows that entry 11A cannot be made available to a Tribunal.

106. That being the position of law as enunciated by the apex court, I hold that Parliament had the power to enact the legislation under entry 97 read with Article 248 as it has been pointed out by the apex court both by the Constitutional Bench as well as in subsequent decision that entry 97 gives wide power to Parliament in the matter which are not enumerated in any of the entries, The contention of the petitioner that this Act does not have legislative competence is not tenable.

107. Question No. 1 is answered accordingly.

108. The law is that the Tribunal is not a court though exercising judicial power inasmuch as it hears the witness on oath or decides a matter. A tribunal is constituted for a particular purpose as in this case to have a speedy recovery of the debts or the loans. Where a Tribunal is set up for a particular purpose, we should bear in mind that it should be a real substitute of the other court not only in form and de jure but in content de facto (see S.P. Sampath Kumar v. Union of India AIR 1987 SC 386). We must also bear in mind that when the Tribunal is set up as an alternative mechanism, it must not touch the basic feature of the Constitution. A Tribunal may be preferred to an ordinary court because its members will have specialised knowledge of the subject-matter, because it will be more informal in its trappings and procedure, because it may be better at finding facts, applying flexible standards and exercising discretionary powers, and because it may be cheaper, more accessible and more expeditious 'than the other courts. As pointed out by de Smith, Woolf and Jowell in their book Judicial Review of Administrative Action, fifth edition at page 34, a tribunal may be preferred to an ordinary court because it may be better at finding facts, applying flexible standards and exercising' discretionary powers and because it may be cheaper, more accessible and more expeditious than the other courts.

109. In this background let us take up the provisions of the Act. As indicated above, the First Chapter is preliminary. Section 7 provides for the staff of the Tribunal. Section 7{1) and (2) provides as follows :

'7. Staff of Tribunal--(1) The Central Government shall provide the Tribunal with a Recovery Officer and such other officers and employees as that Government may think fit.

(2) The Recovery Officer and other officers and employees of a Tribunal shall discharge their functions under the general superintendence of the Presiding Officer.'

110. Section 5 provides for qualifications for appointment as Presiding Officer for a Tribunal. Section 10 provides for qualifications for appointment as Presiding Officer of the Appellate Tribunal. The qualifications laid down are adequate according to necessity for which this Tribunal was

constituted. Before the Delhi High Court in Delhi High Court Bar Association v. Union of India [1998] 92 Comp Cas 849 an argument was made that there is no guideline for the appointment of such person and the Delhi High Court accepted that argument and pointed out that the Act is unconstitutional as it erodes the independence of the judiciary and is irrational, discriminatory, unreasonable, arbitrary and hit by Article 14 of the Constitution.

111. Section 17 provides for jurisdiction, powers and authority of Tribunals. Section 18 provides for bar of jurisdiction. A bare reading of Section 17(1) will show that it can entertain only applications from banks and financial institutions for recovery of debts due to such banks and financial institutions. The borrowers also must have some remedy to enforce claims against the banks and financial institutions in the form of set off and/or counter claims as has been provided in the Civil Procedure Code. It cannot be argued that the doors of the civil courts have been kept ajar for such remedies. That will bring into existence multiplicity of proceedings and possibility of conflicting decision. That will be an absurd, anomalous, unworkable situation destroying the fundamental principle of jurisprudence and justice. Order 8, Rule 6 of the Civil Procedure Code provides that where in a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff. Order 8, Rule 6(2) provides that the written statement shall have the same effect as a plaint in a cross-suit so as to enable the court to pronounce a final judgment in respect of both the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. Order 8, Rule 6A provides for counter-claims by defendants. These remedies which are available to a defendant in a suit are not provided for in Section 17 or in any other sections in this particular Act. No doubt different High Courts tried to have escape route with regard to this matter and it will be better to take note of these decisions ;

1. State Bank of India v. Vijay Kumar Tayal : AIR1997Delhi170 . That was a case where a claim was made for adjustment or set off by the defendant. But that suit was transferred to the Debt Recovery Tribunal. There no claim for set-off was made when the suits were sought to be transferred to the Tribunal and as such that point was not decided.

2. Cofex Exports Ltd. v. Canara Bank : AIR1997Delhi355 where a Division Bench of the Delhi High Court pointed out in paras 39 and 40 has laid down the law as follows (page 604) :

'There is a remedy for every wrong. Every legal claim or right must be enforced. However, nobody has a right to have his claim being tried by a particular forum. There is nothing wrong if the claims and cross claims

whether by way of set-off or by way of counter claim allegedly existing between a person and a bank or financial institution are left to be enforced before two different for a--before the Debt Recovery Tribunal by the bank or financial institution and before the civil court by any person other than the two. The person at whose instance the cross suit was filed or the cross claim, counter-claim or plea of set-off was preferred cannot complain of prejudice inasmuch as he can always approach the civil court for a decree in respect of claims forming subject-matter of set-off or counter claims. The law has provided separate forums for the adjudication of claims by banks or financial institutions and by persons other than these. Each has a right to invoke the jurisdiction of the forum meant for it and each forum shall try the claim within its jurisdictional competence. Finality shall attach to the finding's arrived at and reached by each of the two within its respective jurisdictional competence. Issues heard and decided by the Tribunal shall operate as res judicata and shall bind the parties in the suit before the civil court by virtue of Explanation VIII to Section 11 of the Civil Procedure Code. However, the civil court shall be free to decide such issues as lie within its jurisdictional competence. If the civil court must decide an issue seized by it and within its competence and if there be an unavoidable conflict between the findings recorded by the civil court and by the Tribunal, the finding of the civil court would obviously override and supersede the findings recorded by the Tribunal for a court is a court and tribunal is a tribunal; the former adjudicates on trial, the latter holds only a summary inquiry guided by principles of natural justice as the Act provides.

A civil court while transferring a suit to the Tribunal for the purpose of being heard as an application under Section 31 of the DRT Act shall transfer the suit but shall not transfer a counter claim cross-claim or a cross suit not even a plea of set off. Before transferring a suit filed by a bank or a financial institution to the tribunal, the civil court shall direct the defendant to take steps for separating the plea of set-off and counterclaim from the written statement. On that being done the plea shall be registered as a suit filed by the defendant, designating the defendant as plaintiff and the bank or financial institution as the defendant. A cross suit presents no difficulty; in spite of the suit having been transferred to the Tribunal a cross suit would remain pending before the civil court for the very obvious reason that law does not contemplate a cross suit being transferred to the Tribunal.'

112. With all humility and respect I cannot accept this interpretation of law as given by the Delhi High Court. The Delhi High Court has found that a civil court by transferring a suit to the Tribunal for the purpose of being heard as an application under Section 31 of the Act shall transfer the suit but shall not transfer a counter claim cross claim or a cross suit not even a

plea of set off. If this position is accepted, then the whole object and purpose of the Act will be vitiated. As indicated above this approach instead of simplifying matters will make the whole thing unworkable and that cannot be the object and purpose of law.

113. A law which brings into existence an absurd, unreasonable state of things must be struck down for violating the principle of fairness and justice. Justice cannot be made a sacrificial goat while upholding a law. The Delhi High Court pointed out that the decision of the civil court will be binding on the Tribunal, but if the decision in the civil court is delayed as in the experience and the decision of Tribunal is put up for recovery, what will happen The Tribunal constituted under the Act has been vested under Section 17 with jurisdiction, powers and authority to entertain and decide application from banks and financial institutions for recovery of debts due to such banks and financial institutions. Even the Tribunal does not have the power to order an attachment before judgment, but no doubt under Section 19(6) it can pass an interim order as mentioned therein and there also there is a difficulty that it has not been provided what will happen if there is violation of such an interim order and how such an interim order is to be enforced. In the Civil Procedure Code it has been provided that if there is an interim order and if it is violated, the persons can take proper steps for enforcement of the same. For this the banks and financial institutions will suffer and not the borrowers. Be that as it may, as pointed out above, this Act has not made any provision for Debt Recovery Tribunal to pass order for attachment before judgment.

114. Chapter V of the Act provides for recovery of debt determined by Tribunal. There it has been provided attachment and sale of the movable or immovable property of the defendant; arrest of the defendant and his detention in prison and also appointing a receiver for the management of the movable or immovable properties of the defendant, but there is nothing with regard to the passing an order for attachment before judgment. The object of attachment before judgment is to speed up the recovery of debts and to protect the interest of the decree holder-plaintiff. There should be such a provision in the Act in order to uphold the object of the Act.

115. In Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. : [1999]3SCR759 , the Supreme Court has pointed out that in terms of Section 19(6) the Tribunal has the following power (page 120) :

'The Tribunal may make an interim order (whether by way of injunction or stay) against the defendant to debar him from transferring, alienating or otherwise dealing with, or disposing of, any property and assets belonging to him without the prior permission of the Tribunal.'

116. The Tribunal constituted under the Act has power to grant an ex parte order of injunction or stay on an application filed by banks and financial institutions for recovery of debt. An ex parte order is only of short duration and it is granted to safeguard the interest of the applicant, but, at the same time, such an order cannot be granted as a matter of course. A court or tribunal has also to consider the consequences of such an order if ultimately the order is to be revoked after hearing the defendant. In such circumstances, the tribunal must put the applicant on terms while granting an ex parte order and compensate the defendant in case the ex parte order was obtained without any justification and harm has been caused to the defendant. An ex parte order can also affect the reputation of the person against whom it is issued and sometimes it may be difficult to undo the damage caused by an interim order. A tribunal while granting ex parte order of stay or injunction must record reasons, may be brief one, and cannot pass a stereotyped order in terms of the prayer made. Then an ex parte order cannot be allowed to continue indefinitely and the continuance of interim order has to be decided without undue delay when the defendant puts in his appearance. It is not necessary to hear long drawn arguments. Principles on which an interim order can be granted are well settled. Subsection (8) of Section 19 requires that application for recovery of debt itself is to be disposed of finally within a period of six months from the date of receipt of the application. That also shows the urgency to decide is an interim order of injunction or stay granted ex parte is to be continued or not.

117. Another aspect of the matter of which we should not lose our sight is that there is no provision for appointment of a receiver as provided in the Civil Procedure Code. That also is required to protect the interest of the decree holder. All these things are not available in the Act. An argument was advanced that the Tribunal has to pass decree for the amount due to the banks and financial institution and it is further argued that in order to determine the amount due the Tribunal can scrutinise and examine the set off and/or counter claim made by the defendant, but the Act itself does not provide for making such an application and even such an application is made, the Tribunal may throw it out saying that there is no such provision in the Act and it can only decide the applications filed by the banks and financial institutions. It is well known that the banking company carries on its business as mentioned in Sub-section (1) of Section 156 of the Banking Regulation Act. In some cases there may be necessity either of set off/claim and that aspect of the matter was never taken care of at the time of enacting the legislation and when this was brought to the notice of the Legislature, the Legislature wanted to amend the law for that reasons the Bill as mentioned above was introduced where these provisions were made. But as on today, the Tribunal may refuse to entertain such an application. But that

cannot be done in view of the fact that the law is, that the right can be abridged but the remedy cannot be abridged, But that is what has been done by this particular Act. No provision has been made and the only remedy made available to the defendant is to approach the civil court again in the same matter which will create an absurd and unreasonable situation.

118. Accordingly, I find that Section 17 of the Act cannot be deemed to be a valid piece of legislation for the reasons indicated above. It has not provided a substitute or alternative mechanism which is the requirement of law. It is absolutely lopsided and is also hit by Article 14 of the Constitution. As the Supreme Court has pointed out Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness is an essential element of equality. In E.P. Royappa v. State of Tamil Nadu : (1974)ILLJ172SC , the Supreme Court pointed out that Article 14 embodies a guarantee against arbitrariness. Section 17 of the Act gives sweeping/drastic powers to recover the debts of banks and financial institutions. The borrowers/debtors in general cannot be dubbed as a bunch of crooks, however laudable the object of the Act may be, by an Act the remedy of these persons cannot be wiped out which is the consequence/effect of this Act. One cannot take shelter in the argument/plea that the remedies in the civil court are open. That will amount to giving a right of hearing to a person after completion of execution. That remedy will be illusory and merely dead letters in the statute book. So this Section 17 of the Act is struck down as the equal protection clause both with regard to remedy/liability have been violated.

119. Then let us take up Section 18 of the Act. Section 18 clearly indicates, it does not debar the jurisdiction in case of the High Court while exercising the power under Articles 226 and 227 of the Constitution of India. It can be said that even if an appeal lies against an order of Tribunal in a proper case, the High Court has the power to entertain such matter under Articles 226 and 227. That also is the law laid down by the apex court in Kakko v. Slate of Haryana : 1995CriLJ3632 .

120. At this stage, it will be proper to take note of one argument advanced on behalf of the petitioners that this Act in totality also cannot stand as it has made provision for the banks and financial institutions only placing the borrowers and other persons at a disadvantageous position and is violative of Article 14, This argument cannot be accepted. The apex court considered that point in the case reported in Manna Lal v. Collector of Jhalawar : [1961]2SCR962 , wherein the apex court has held as follows (page 831) :

'That the Government even as a banker, can be legitimately put in a separate class. The dues of the government of a State are the dues of the entire people of the State. This being the position, a law giving special facility for the recovery of such dues cannot, in any event, be said to offend Article 14 of the Constitution.'

121. The banks and financial institutions can be treated in a separate class. The dues to the banks and financial institutions are the dues of the entire people of the country. This being' the position of the law for recovery of such debts, cannot be said to offend Article 14 of the Constitution of India. In this connection, one may have a look at Nav Rattanmal v. State of Rajasthan : [1962]2SCR324 . Earlier to 1963 the period of limitation for the suit by Government was 60 years and that was challenged as being unconstitutional and violative of Article 14 of the Constitution. It was alleged that there was no reasonable basis for providing a longer period for Government than for private individuals the period of limitation was only 12 years. The apex court answered the challenge in the negative and it was held that in the case of Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time, in itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may also be mentioned that in the case of Governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. It is in this background that the question of the special provision in Article 149 has to be viewed.

122. In Builders Supply Corporation v. Union of India : [1965]56ITR91(SC) , an argument was advanced that the priority to State debts should not be given and that was negatived by the Supreme Court holding that the basic justification for the claim for priority of State debts rests on the well recognized principle that the State is entitled to raise money by taxation, because unless adequate revenue is received by the State, it would not be able to function as a sovereign Government at all. It is essential that as a sovereign the State should be able to discharge its primary governmental functions and in order to be able to discharge such functions efficiently, it must be in possession of necessary funds, and this consideration emphasises the necessity and the wisdom of conceding to the State the right to claim priority in respect of its dues.

123. In Maganlal Chhagganlal (P.) Ltd. v. Municipal Corporation of Greater Bombay : [1975]1SCR1 , wherein the Supreme Court upheld the summary procedure for eviction from premises. There the legality of the proceedings initiated under the Bombay Municipal Corporation Act and Bombay Government Premises (Eviction) Act, 1955, was challenged as being violative of Article 14 of Constitution. That was answered in the negative. It was further pointed out by the Supreme Court that there are two procedures available to the Corporation--(i) one by way of a suit under the ordinary law and (ii) under either of two Acts, which is harsh and onerous than the procedure under the ordinary law, the latter is hit by Article 14 in the absence of any guideline as to which procedure may be adopted but if there is such a guideline, it is not violative of Article 14. It was observed that the statute itself clearly lays down the purpose behind them, i.e., that premises belonging to the Corporation and Government should be subject to speedy procedure in the matter of evicting' unauthorised persons occupying them.

124. The next question is whether the Act has eroded the independence of the judiciary. Regarding the role of the subordinate judiciary in All India Judges' Association v. Union of India : (1993)IILLJ776SC , the Supreme Court pointed out as follows (page 295) :

'The judicial service is not service in the sense of 'employment'. The judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However those who exercise the State power are the Ministers, the Legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff of the administrative executive which carries out the decisions of the political executive. Similarly the Legislators are different from the legislative staff. So also the judges from the judicial staff. The parity is between the political executive, Legislators and the judges and not between the judges and the administrative executive . . . The judges, at whatever level they may be represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.'

125. In L. Chandra Kumar v. Union of India : [1997]228ITR725(SC) wherein the Supreme Court pointed out inter alia as follows (page 767) :

'It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence.''

126. In Dalmia Cement (Bharat) Ltd. v. Union of India : (1996)10SCC104 wherein the Supreme Court has pointed out as follows (page 115) :

'Justice in the Preamble implies equality consistent with the competing demands between distributive justice with those of cumulative justice. Justice aims to promote the general well-being of the community as well as individual's excellence. The principal end of society is to protect

the enjoyment of the rights of the individuals subject to social order, well-being and morality. Establishment of priorities of liberties is a political judgment.'

127. It was further held that it is a settled law that the fundamental rights and the Directive Principles are the two wheels of the chariot ; neither of the two is less important than the other. Snap one, the other will lose its efficacy. Together, they constitute the conscience of the Constitution to bring about social revolution under rule of law. The Fundamental Rights and the Directives are therefore, harmoniously interpreted to make the law a social engineer to provide flesh and blood to the dry bones of law. The Directives would serve the court as a beacon light to interpretation. Fundamental Rights are rightful means to the end, viz., social and economic justice provided in the Directives and the Preamble. The fundamental rights and the Directives establish the trinity of equality, liberty and fraternity in an egalitarian social order and prevent exploitation.

128. On the basis of this an argument is sought to be advanced that the tribunalisation instead of being a progressive step will be a retrogressive step and it will be violative of Article 50 of the Constitution. Article 50 provides for separation of the judiciary from executive. It is argued that after 50 years of independence, this tribunalisation will bring the judiciary under the control of the executive instead of making it separate from the executive.

129. Following are the arguments advanced by learned counsel on this count :

(i) that this tribunal cannot be said to be an independent body and it has failed to instill the public confidence.

With regard to this argument, as I find that in the appointment of the Presiding Officer both in the Tribunal as well as Appellate tribunal now care has been taken to appoint a person in accordance with the rules and the Chief Justice of India is the Chairman of the Selection Committee. Further I find the Act has taken care of all the things and also provided some procedure. In view of that matter, it cannot be said that it does not have the independence. It is further seen that if the Presiding Officer does not function properly he may be removed from his office on the ground of proved misbehaviour or incapacity after enquiry in the case of the Presiding Officer of a Tribunal made by a judge of a High Court or in the case of the Presiding Officer of an Appellate Tribunal made by a judge of the Supreme Court in which the Presiding Officer concerned has been informed of the charges against him and given a reasonable chance of being heard in respect of these charges. So the argument that after 50 years of independence the tribunalisation instead of being a progressive step will be a retrograde step cannot be accepted in view of the object and reasons and the compelling circumstances under which this Act had to be brought in.

Next let us take up other aspect of the matter that whether this tribunal is capable of delivering justice adhering to fairness and reasonableness. With regard to that again we must go back to the case of L. Chandra Kumar v. Union of India : [1997]228ITR725(SC) . That was a case with regard to tribunalisation and there the Supreme Court has pointed out as follows :

(i) That the various Tribunals have not performed up to the expectations is a self evident and widely acknowledged truth.

But the Supreme Court has pointed out that on that ground it cannot be said that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct. It was further pointed out that drastic measures had to be resorted in order to elevate their standards to ensure constitutional scrutiny in the discharge of the power of judicial review conferred upon them.

(ii) Judicial review is the basic feature of the Constitution. The power of the High Courts and the Supreme Court to test the constitutional validity of legislation can never be excluded. The power vested in the High Courts to exercise judicial superintendence over the decisions of subordinate courts and tribunals within their respective jurisdiction is also a part of the basic structure of the Constitution. The High Courts can never be divested of all other judicial functions. There is no prohibition with regard to the subordinate judiciary and/or tribunals constituted under the legislation from performing their duties and function as supplemental to High Courts and Supreme Court.

130. This matter can be looked at from another angle as pointed out by the apex court in S.P. Sampath Kumar v. Union of India : (1987)ILLJ128SC . It was with regard to the Administrative Tribunals Act, 1985 and the question arose was with regard to the structure of the judicial system and the principles of independence of judiciary. The question arose before the Supreme Court : Whether the exclusion of the jurisdiction of the High Courts under Articles 226 and 227 of the Constitution in service matters specified in Section 28 of the Administrative Tribunals Act, 1985 and the vesting of exclusive jurisdiction in such service matters in the Administrative Tribunals to be constituted under the Act and the jurisdiction of the apex court under Articles 32 and 136 is unconstitutional and void.

131. The second question which arose for consideration is whether the corn-position of the Administrative Tribunal and the mode of appointment of chairman, vice-chairman and members have the effect of introducing a constitutional infirmity invalidating the provisions of the impugned Act.

132. The main judgment was delivered by Justice Ranganath Misra J. and some reasons were added by Hon'ble the then Chief Justice P.N. Bagwati. The apex court, inter alia, found as follows :

(i) Judicial review is a basic and essential feature of the Constitution and no law passed by Parliament in exercise of its constituent power can abrogate it or take it away.

(ii) Effective alternative institutional mechanism or arrangement for judicial review or administration of justice can be made by Parliament

133. In the majority judgment delivered by Justice Ranganath Misra J. an argument was advanced that the Benches of the Tribunal, should not only be established at the seat of every High Court but should be available at every place where the High Courts have permanent Benches. That finds place in para. 10 of judgment. The Supreme Court pointed out that the tribunal should be a real substitute of the High Court not only in form and de jure but in content and de facto. The alternative arrangement has to be effective and efficient as also capable of upholding the constitutional limitations.

134. This case of S.P. Sampath Kumar's case : (1987)ILLJ128SC , was referred by a Division Bench to the Constitution Bench to comprehensively consider it and accordingly this matter was decided by the apex court in L. Chandra Kumar's case : [1997]228ITR725(SC) .

135. In terms of the judgment in S.P. Sampath Kumar's case : (1987)ILLJ128SC , and later on in L. Chandra Kumar's case : [1997]228ITR725(SC) , the authority established Benches of the Central Administrative Tribunal within the jurisdiction of each and every High Court with the power given to the Vice Chairman to hold court at other places where the High Court have their permanent Benches. This was done in order to make the tribunal more accessible and more expeditious. But that purpose cannot be achieved by the present Act. Take for instance the case of the Tribunal at Guwahati. It is for the seven States of the North Eastern Region and it is well known that the communication system in these States is very poor and there are also some other difficulties and there is only one Appellate Tribunal at Bombay. It can be well conceived how a litigant public can go to Bombay to redress his grievance against an order of the Tribunal. That will not make a Tribunal cheaper and more accessible and more expeditious than the High Court or other courts. So, it is necessary for the Central Government to pass necessary legislation empowering the Presiding Officer to hold the court in circuit at the places in the permanent Benches of High Court as well as there should be Appellate Tribunal within the jurisdiction of every High Court. From the decision of such Appellate Tribunal petition should lie to the respective High Court as pointed out in L. Chandra Kumar's case : [1997]228ITR725(SC) . Now the Appellate Tribunal being situated in Bombay, effective judicial review is not possible and that is against the basic feature of the Constitution. That will

not make the Tribunal more cheaper and more accessible and also more expeditious one and in that process the main objective to give justice as required keeping in view the objects and reasons of the tribunalisation can be achieved. This aspect of the matter should be looked at by the Legislature in order to achieve the object of the Act. The present Act has not provided a substitute (effective) or alternative mechanism, it is a bundle of contradictions with loopholes in the main sections. It is not a cheap remedy, it is not easily accessible. Just imagine for Bihar and Orissa there is one Tribunal at Patna and one can imagine the plight of the litigants of Orissa. The Orissa High Court will not be in a position to exercise judicial review over the actions of the Tribunal at Patna. The High Courts (except Bombay) may not be in a position to issue writ against orders/judgments of the Appellate Tribunal because of lack of territorial jurisdiction and in the case of Orissa it may not issue writ against the Patna Tribunal. That certainly will tantamount to denying power of judicial review of High Courts which is against the mandate of the Constitution. A law which in effect wants to exclude judicial review is violative of the basic features of Constitution. The stake before the tribunal is high (above Rs. 10 lakhs), the enquiry is summary in nature and in such a situation there must be proper checks, otherwise things may go off track. Tribunalisation must adhere to the principle of fairness and an attempt to attain the goal of justice. It must not appear to be a farcical one or made to appear to scald the skin of the borrowers. By providing one Appellate Tribunal throughout the whole country in Bombay the right of appeal has almost been made an illusory one, a forum which cannot be reached easily and cheaply certainly no forum for remedy. Further judicial review not only includes interpretation of law but also review of judicial decision. A decision of the Appellate Tribunal arising from a case of Guwahati Tribunal cannot be judicially reviewed by this court because of lack of territorial jurisdiction. Therefore merely providing for judicial review but making it impossible also will make the Act void. Further in some cases it has been highlighted that they are secured creditors having the first charge in the property mortgaged/hypothecated. Banks also know it inasmuch as there are agreements to that effect. These financial institutions (Assam Financial Corporation for example) shall lose this right if the banks are allowed to recover the money through the machinery of this Act. They will not be able to enforce their right before the Tribunal, they are similarly situated, but their cases have not been taken into consideration as such also this Act suffers from the vice of discrimination. It was urged on behalf of the respondents that they will have their right before the civil court or under Section 31 of the State Financial Corporations Act. But the problem will be, the cream will be taken away by the banks through this Act leaving nothing to these persons. Banks in their wisdom advanced money knowing full well

the earlier liabilities of the borrowers on the property and now if they are allowed to ignore such a state taking recourse to the Act, that will amount to putting a premium on the wrong state of things, that cannot be purpose and object of law.

136. I have already looked at Section 17 of the Act and I have already pointed out that Section 17(1) of the Act gives power to the Tribunal to receive applications only from banks and financial institutions. It does not take care of the other parties, i.e., defendant. The defendant is not in a position to file any application and this is nothing but discriminatory and violative of Article 14 of the Constitution. Some argument was made that the amount of court fee is to be deposited before the Appellate Tribunal is 75 per cent. of the amount of debt so due which is on a higher side. I am not inclined to accept this argument inasmuch as this has been done to achieve speedy recovery of the loan/dues.

137. Let us come to Chapter V of the Act and Section 25 of the Act. Section 25 is mode of recovery of debts giving drastic wide powers to the Recovery Officer. Section 28 provides other modes of recovery. Section 28(2) is quoted below :

'If any amount is due from any person to the defendant, the Recovery Officer may require such person to deduct from the said amount, the amount of debt due from the defendant under this Act and such person shall comply with any such requisition and shall pay the sum so deducted to the credit of the Recovery Officer.'

138. That gives a drastic power to the Recovery Officer to ask the third person who owes the money to pay that money to the Recovery Officer. But there is no provision how the Recovery Officer shall come to the conclusion that such a third person stranger owes money to/or on account of the defendant. Section 28(3) and (4) provides as follows :

'(3)(i) The Recovery Officer may at any time or from time to time by notice in writing, require any person from whom money is due or may be come due to the defendant or to any person who holds or may subsequently hold money for or on account of the defendant, to pay to the Recovery Officer either forthwith upon the money becoming due or being held or within the time specified in the notice (not being before the money becomes due or is held) so much of the money as is sufficient to pay the amount of debt due from the defendant or the whole of the money when it is equal to or less than that amount.

(ii) A notice under this sub-section maybe issued to any person who holds or may subsequently hold any money for or on account of the defendant jointly with any other person and for the purposes of this sub-section, the shares of the joint holders in such amount shall be presumed, until the contrary is proved, to be equal.

(iii) A copy of the notice shall be forwarded to the defendant at his last address known to the Recovery Officer and in the case of a joint holders at their last addresses known to the Recovery Officer.

(iv) Save as otherwise provided in this sub-section, every person to whom a notice is issued under this sub-section shall be bound to comply with such notice, and, in particular, where any such notice is issued to a post office, bank, financial institution or an insurer, it shall not be necessary for any pass book, deposit receipt, policy or any other document to be produced for the purpose of any entry, endorsement or the like to be made before the payment is made notwithstanding any rule, practice or requirement to the contrary.

(v) Any claim respecting any property in relation to which a notice under this sub-section has been issued arising after the date of the notice shall be void as against any demand contained in the notice.

(vi) Where a person to whom a notice under this sub-section is sent objects to it by a statement on oath that the sum demanded or the part thereof is not due to the defendant or that he does not hold any money for or on account of the defendant, then, nothing contained in this sub-section shall be deemed to require such person to pay any such sum or part thereof, as the case may be, but if it is discovered that such statement was false in any material particular, such person shall be personally liable to the Recovery Officer to the extent of his own liability to the defendant on the date of the notice, or to the extent of the defendant's liability for any sum due under this Act, whichever is less.

(vii) The Recovery Officer may, at any time or from time to time, amend or revoke any notice under this sub-section or extend the time for making any payment in pursuance of such notice.

(viii) The Recovery Officer shall grant a receipt for any amount paid in compliance with a notice issued under this sub-section and the person so paying shall be fully discharged from his liability to the defendant to the extent of the amount so paid.

(ix) Any person discharging any liability to the defendant after the receipt of a notice under this sub-section shall be personally liable to the Recovery-Officer to the extent of his own liability to the defendant so discharged or to the extent of the defendant's liability for any debt due under this Act, whichever is less.

(x) If the person to whom a notice under this sub-section is sent fails to make payment in pursuance thereof to the Recovery Officer, he shall be deemed to be a defendant in default in respect of the amount specified in the notice and further proceedings may be taken against him for the realisation of the amount as if it were a debt due from him, in the manner provided in Sections 25, 26, and 27 and the notice shall have the same effect as an attachment of a debt by the Recovery Officer in exercise of his powers under Section 25.

(4) The Recovery Officer may apply to the court in whose custody there is money belonging to the defendant for payment to him of the entire amount of such money, or if it is more than the amount of debt due, an amount sufficient to discharge the amount of debt so due.'

139. This will show that this drastic power has been given to the Recovery Officer. On the basis of this a person who is not a party to the earlier proceeding may be harassed by the Recovery Officer. Further it appears from Section 28 that the Recovery Officer is not under the control of the Presiding Officer. The Recovery Officer exercises even independent judicial power but even he is not a judicial officer with proper qualification/expertise and as such there is a mini tribunal within the main tribunal itself. The Recovery Officer has been given the drastic power in Sections 25 and 28 without any guideline control and supervisor. That cannot be done as that will create a chaotic situation. Further no qualification has been laid down regarding the Recovery Officer though the Recovery Officer is exercising judicial power.

140. Mr. P.N. Choudhury, learned Central Government Standing Counsel, produces before me certain documents to show that the qualification regarding the Recovery Officer has been laid down. The notes by Registrar does not make a rule to prescribe qualification.

141. If we look at the Act, a third party may be asked to pay the money, even if that third party was not a party in the earlier proceedings. It is the Recovery Officer who is to find out whether that third party is to give money to the defendant and that aspect of the matter is to be decided by the Recovery Officer and that also will be a judicial proceeding and it is not understood how a Recovery Officer without any judicial power can give declaration/decide with regard to that. In view of all these matters, I also find that Sections 25 and 28 of the Act to be arbitrary, unreasonable one and that is struck down.

142. Next we come to Section 31. Section 31 is with regard to transfer of pending cases. It can be stated that the cases which relate to recovery of debts due to banks and financial institutions may be transferred to the Tribunal, but how a decree passed by the civil court can be transferred to the Tribunal for execution. A decree of the civil court is to be executed by the civil court alone and that cannot be executed by any other forum and having realised the difficulty, now in the amendment proposed it was stated that in lieu of that decree a certificate will be issued for the amount of decree by the Presiding Officer and it is that certificate which will be executed. But that amendment was kept in the stage of the Bill itself and the Bill was never introduced. Section 31 takes away the power of the civil court to have a hearing whether the suits are liable to be transferred. Hereunder the jurisdiction of this court suits/proceedings have been transferred under an administrative circular (quoted later) of the High Court.

That also is arbitrary and unreasonable. By an administrative order judicial power has been curtailed. Otherwise also the section is arbitrary and unreasonable as will be shown below :

In this connection, Mr. K. Agarwal, learned counsel makes submission as follows :

C. R. No. 54 of 1998,--Money suit No. 1 of 1997 was instituted by UCO Bank, Tinsukia in the Court of Assistant District Judge, Tinsukia claiming the following reliefs :

(a) decree for the sum of Rs. 29,88,262.07.

(b) for future interest at 19.25 per cent. per annum with quarterly rest from December 1, 1996, till realisation of the decretal amount.

(c) enforcement of hypothecation of assets and articles described below, by attachment and sale thereof for the realisation of decretal amount with interest thereon.

(d) a declaration of the bank's charge on the hypothecated assets and articles.

(e) in case the sale proceeds of the hypothecated property be insufficient to satisfy the amount payable to the plaintiff with interest, etc., as aforesaid the liberty be granted to plaintiff to recover the balance amount from the defendant as personal decree against the defendants.

(f) appointment of receiver.

(g) cost of the suit.

(h) any other relief to which the plaintiff is found to be entitled under the law of equity and justice.

143. As will be seen from the plaint, prayer Nos. (c), (d), (f) cannot be granted by the Debt Recovery Tribunal. It is beyond the jurisdiction of the Tribunal and even that suit was transferred to the Tribunal without applying mind to that aspect of the matter. A bare reading of the plaint it will be seen that there are certain declarations sought for and those declarations can be given only by the civil court. The Tribunal cannot give such declarations and even then on receipt of the file on transfer, the Tribunal proceeded with the matter in spite of objection being raised by the defendant.

C. R. No. 363 of 1995.--There was a Title Suit being TS 28/88 instituted by the United Bank of India in the court of the Assistant District Judge at Golaghat and the prayers are as follows:

(a) decree for Rs. 29,83,836.21 jointly and severally against defendants Nos. 1 to 4.

(b) interest at 18 per cent. per annum from the 6th day of August, 1988 and interest of judgment up to realisation at 18 per cent. per annum.

(c) decree for sale and realisation of dues from mortgaged properties mentioned in Schedule A with liberty to the plaintiff to appropriate the net sale proceeds thereof in protanto satisfaction of the plaintiff's claim thereon.

(d) That it be declared that defendant No. 1 is a joint Hindu family business firm under the Mitakshara Hindu law and that defendants Nos. 2, 3 and 4 are joint owners of the said firm G.S. Bajaj and Co.

(e) That it be declared that there was no conveyance or transfer or sale of the business and stock of the properties of the joint family business, G.S. Bajaj and Co. carried on in the name of defendant No. 2 in favour of defendants Nos. 2, 3 and 4 who have succeeded to the joint Hindu family business, defendant No. 1 in equal shares by succession under Hindu law.

(f) That it be declared that defendant No. 4 is the karta and manager of the joint Hindu family business defendant No. 1.

(g) That it be declared that 4B. 1K. 7Ls of land shown in schedule C(i) and 19B. 1K. 18Ls of land shown in schedule C(iii) are the joint family properties of defendants Nos. 2, 3 and 4 and each of the defendants Nos. 2, 3 and 4 have a one-third share in the said lands and the said lands were acquired in the name of defendant No. 4 out of the income from the joint family business and properties of the late Gonpatrai Agarwalla and thereafter from the joint family business carried on by defendants Nos. 2, 3 and 4.

(h) Costs of suit and costs incurred for notices, typing cost of plaints and typing' cost of copies of plaint as provided under Order 20-A, Rule 1, under the Civil Procedure Code.

(i) Receiver.

(j) Further or other reliefs as the plaintiffs are entitled to in law and in equity.

144. Even that suit was transferred to the Tribunal though from the bare perusal of the prayers quoted above it will be seen that prayer Nos. (d), (e), (f) and (g) are beyond the power of the Tribunal as a Tribunal cannot act as sought for in the suit. In spite of it that suit was transferred. What will be the effect of the final order by the Tribunal that will be taken care of at a later point of time. In that suit there also an Execution Case No. 2 of 1995 and that execution proceedings has been transferred to the Tribunal. The same is the position in the other cases also.

145. Section 31 is quoted below :

'31. Transfer of pending cases.--(1) Every suit or other proceeding pending before any court immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen after such establishment, within the jurisdiction of such Tribunal shall stand transferred on that date to such Tribunal :

Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before any court.

(2) Where any suit or other proceeding's stands transferred from any court to a Tribunal under Sub-section (1),--

(a) the court shall, as soon as may be after such transfer, forward the records of such suit or other proceeding's to the Tribunal ; and

(b) the Tribunal may, on receipt of such records, proceed to deal with such suit or other proceeding, so far as may be in the same manner as in the case of an application made under Section 19 from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit.'

146. From Sub-section (1) of Section 31 quoted above it is seen that the suit or proceeding the cause of action whereon it is based is such that it would have been if it had arisen after such establishment within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal. This is nothing but destruction of some rights which may be available to a particular person. Even the bank in that process may suffer because if a decree is transferred at the stage of execution, the bank itself will suffer and not the borrowers because after the transfer, Section 31(2)(b) gives the power to the Tribunal to proceed in the matter as in the case of applications under Section 19, the Tribunal may start a de novo trial which is against the settled principle of law. In view of that matter, I find that even Section 31 also requires modification and it cannot be allowed to stand in the shape and manner as is existing in the statute. As a matter of fact, this aspect of the matter also was taken into consideration at the time of introduction of the Bill for amendment.

147. An argument was advanced that Section 34 which shows that the Act will have overriding 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. That argument has also force inasmuch, as that has abridged the right to remedy of a person. The right of a person can be curtailed, but the right to remedy cannot be curtailed inasmuch as every wrong must have a remedy. The same argument was made with regard to Section 36. Section 36 is with regard to power to make rules. It is not necessary to discuss that aspect of the matter in this particular case in view of the position made earlier by me.

148. Mr. D.K. Misra, learned counsel makes an argument that this Act is violative of Article 371A of the Constitution of India which gives certain directions to the State of Nagaland. In Nagaland where the judiciary was separated from the executive recently, the administration of justice is provided by a set of rules namely Rules for Administration of Justice in Nagaland, 1937. This is an existing law and it continues to apply in Nagaland by virtue of Article 372 of the Constitution. It was held in Ratan Singh's case : 1967CriLJ265 , that the 1937 Rules survived the repeal of the Scheduled

Districts Act, 1874 and continues to apply in the State of Nagaland. Article 371A provides for no Act of Parliament in respect of religious or social practices of the Nagas ; Naga customary law and procedure ; administration of civil and criminal justice involving decisions according to Naga customary law ; ownership and transfer of land and its resources, unless the Legislative Assembly of Nagaland so decides by a resolution.

149. Rule 32 of the Rules of 1937 provides that houses, etc., may not be attached, sold or transferred in execution of a decree unless they themselves are subject-matter of the suit. It further provides that land may be sold or temporarily transferred when custom admits of individual right in it being recognised. In the impugned Act, the Recovery Officer has the power to recover debts by attaching the selling immovable properties whether they are subject-matter of the suit or not under the Second Schedule to the Income-tax Act, 1961. The Recovery Officer is neither the authority nor can he be vested with the power to decide the customary practice of Nagas unless the State Legislature agrees to have the customary matters adjudicated by the said Recovery Officer. The impugned Act is accordingly hit by Article 371A of the Constitution and its application in Nagaland is specifically barred. It may be stated herein that the Transfer of Property Act does not apply in Nagaland and even the spirit also does not apply. Under the Naga custom there is no arrest and detention for not paying' debts as provided in Rule 33 of the Rules. That argument also has force. In this connection Mr. P.N. Choudhury, learned Central Government Standing Counsel and Mr. B. Kalita, learned counsel for SBI, place reliance on a judgment in State Bank of India v. T. Murry Aluminium Conductors Cable Industries (dated November 18, 1998 passed by the learned single judge in Civil Reference No. 1(K) of 1998). That was a reference made by the learned Assistant to Deputy Commissioner at Dimapur in Money Suit No. 12 of 1997 and that reference was made under Section 113 read with Order 46 of the Civil Procedure Code. It may be stated that in Nagaland the Civil Procedure Code does not apply, but only the spirit applies. The learned judge in para. 2 of the judgment found that the reference itself was due to a misreading of the provisions of Order 46. The lower court found that in view of the specific provisions contained in Article 371A of the Constitution, the Act is not applicable in the State of Nagaland. The learned single judge of this court in para. 5 quoted Article 371A of the Constitution and in para. 6 the learned judge held as follows :

'At the same time, the mortgage, if any, offered by the parties, it is purely contractual obligations and has got nothing to do with the transfer of land and its resources. Such mortgage is an act of individual and executed in terms of contractual obligations and has got nothing to do with the transfer ownership and transfer of land and its resources.'

150. This observation in para. 6 of the judgment is merely an obiter inasmuch as that was not the subject-matter before the learned judge and the learned judge having found that the reference itself is incompetent had no necessity to decide that aspect of the matter. This judgment is not binding on me and does not answer the question posed.

151. The next question is that as I have indicated above this is merely an obiter and was not a matter in issue, the learned judge did not consider that Transfer of Property Act is not applicable in Nagaland and what will be position of mortgagor and mortgagee in such a situation, that aspect of the matter was not considered. So, I hold that this Act cannot apply to Nagaland in view of Article 371A of the Constitution.

152. Accordingly, I hold as follows :

(i) that there was legislative competence to enact the Act ;

(ii) that argument advanced that there was no justification to give undue advantage to the banks and financial institutions before the Tribunal leaving the defendant at a disadvantage cannot be accepted and the Act in totality is not violative of Article 14 of the Constitution. But as it has abrogated/negated the power of judicial review it has violated the basic feature of the Constitution as such void as a whole.

(iii) But I find as indicated above that the following sections of the impugned Act are liable to be struck down :

(a) Section 17 of the Act regarding jurisdiction, power and authority of the Tribunal inasmuch as it violates Article 14 and is arbitrary, unreasonable and violates the equality clause.

(b) Appointment of Recovery Officer and the modes for recovery of debts under Sections 25, 28, (2) and (3), (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x) and (4) as being arbitrary, unreasonable without any guidelines, control, etc., and a person exercising judicial power without due authorisation by the statute even giving the power of arrest, etc.

(c) Section 31 with regard to transfer of suits/proceedings and Section 34(1) which gives overriding effect as that may destroy/wipe out even a decree obtained by the defendant in a counter-claim in the civil court. Even for execution of such a decree he will have to knock at the doors of the Tribunal and it is doubtful whether the Tribunal will have the jurisdiction to execute such a decree as it can take up matters only when banks/financial institutions are the applicants. But even such matters have been transferred to the Tribunal by virtue of the administrative order in exercise of power under Section 31 of the Act.

(d) Section 35 of the Act is quoted below :

'35. Power to remove difficulties.--(1) If any difficulty arises in giving' effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette make such provisions, not inconsistent

with the provisions of this Act, as appear to it to be necessary or expedient for removing' the difficulty :

Provided that no such order shall be made after the expiry of the period of three years from the date of commencement of this Act.

(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.'

Comments : This section empowers the Central Government to remove any difficulty which arises in giving effect to the provisions of this Act, during a period of three years from the date of commencement thereof, i.e., till June 23, 1996.

Section 35 of the Act cannot improve the same as the Central Government now cannot do anything in the matter as already three years have elapsed from the date of commencement of the Act.

(e) The Act does not apply to Nagaland in view of Article 371A of the Constitution.

(f) In consequence the amount paid for/deposited by applicants under Sub-section (1) by way of bank draft in lieu of or as the court shall be refunded to the applicants as the matter cannot be tried by the Tribunal.

(g) This decision will be prospective in nature, things which have assumed finality shall not be disturbed, and necessary consequential orders have been passed below in each case.

153. The next question which arises is if these sections are to be struck down whether the other sections are sufficient to carry the purpose of the Act. Sections 25 and 28 regarding the modes of recovery are struck down because of the lack of qualification on the part of the Recovery Officer, the whole Act itself will be an illusory one. But I make it clear that this will be only prospective inasmuch as things already happened and the cases which are at the recovery stage, that can be proceeded with and in consequence I pass separate order with regard to each and every civil rule.

C. R. No. 2251 of 1998--This civil rule has been filed by two borrowers and arose out of T. S. No. 32 of 1990. The Tribunal shall send back the records of this case to the Court of the learned Civil Judge, Senior Division at Dibrugarh to try the suit in accordance with law as early as possible. In view of the aforesaid judgment, the learned Civil Judge shall dispose of the suit as it is a suit of 1990 keeping in view the observation made in the judgment with regard to the delay caused by the civil court in the disposal of the matters.

C. R. No. 1931 of 1998.--This was with regard to a suit being, M. S. No. 48 of 1994 before the learned Assistant to the Deputy Commissioner (J) at Dimapur, Nagaland. The case was transferred to the Tribunal under Section 31. The case now shall be sent back to the learned Assistant to the Deputy Commissioner (J) Dimapur to decide the matter in accordance with law as early as possible.

C. R. No. 935 of 1998.--This is with regard to T. S. No. 78 of 1992 in the court of the Assistant District Judge at Dibrugarh. That case now shall be sent back to the learned District Judge at Dibrugarh to dispose of the matter in accordance with law as early as possible.

C. R. No. 517 of 1998.--This is with regard to T. S. No. 51 of 1994 in the court of the learned Assistant District Judge at Tinsukia. The record shall be sent back to the learned Civil Judge, Senior Division at Tinsukia to dispose of the matter.

C. R. No. 1385 of 1998.--This is with regard to O. A. No. 09 of 1997 filed by the Central Bank of India, Bijoy Nagar Branch, District Kamrup for recovery of an amount due to it. Now this petition shall be returned back to the plaintiff-petitioner, i.e., Central Bank of India, to be filed before the appropriate court for recovery of the amount. It is also made clear that the period of limitation will not run for the period spent bona fide for pursuing the matter before the Tribunal in connection with this case.

C. R. No. 540 of 1998.--This is with regard to T. S. No. 29 of 1995 in the court of the Assistant District Judge, Tinsukia (now Civil Judge, Senior Division). The suit was transferred to the Tribunal under Section 31 of the Act and was registered as O. A. No. 79 of 1997. That suit now shall be sent back to the learned Civil Judge, Senior Division at Tinsukia for disposal.

C. R. No. 34 of 1998.--This arose out of an application filed by UCO Bank for recovery of an amount of Rs. 15,51,326.42 with interest and for attachment and sale of properties. It was registered as O. A. No. 198 of 1997. The application now shall be returned back to the bank to be filed before the appropriate court with necessary application for exclusion of time spent bona fide for pursuing the case before the Tribunal as well as before this court.

C. R. No. 814 of 1998.--There was a money suit being M.S. No. 25 of 1995 before the learned Assistant District Judge, Jorhat by UCO Bank, Jorhat Branch, Jorhat and that was transferred to the Tribunal wherein it was registered as O. A. No. 192 of 1997. Record of the suit now shall be sent back to the learned Civil Judge Senior Division at Jorhat to try the suit in accordance with law.

C. R. No. 1316 of 1998.--This is with regard to a suit fifed by Central Bank of India being T. S. No. 6 of 1989 in the court of the Assistant District Judge at Guwahati and that suit was transferred to the Tribunal wherein it was registered as O. A. No. 112 of 1997. The suit now shall be sent back to the learned Civil Judge, Senior Division at Guwahati to dispose of the matter in accordance with law as early as possible.

C. R. No. 1588 of 1998--This arises out of a proceeding being O. A. No. 173 of 1997 filed by the Bank of India, Hem Baruah Rd., Kamarpatty, Fancy Bazar, Guwahati 1. In view of the decision the suit now shall be returned

back to the bank to be filed before the proper court and the bank shall be entitled to exclusion of time spent bona fide for pursuing the matter before the Tribunal as well as before this court.

C. R. No. 1194 of 1998.--This arises out of the suit being T. S. No. 43 of 1985 filed by the United Bank of India for realisation of its dues and it was transferred to the Tribunal under Section 31 wherein it was registered as O. A. No. 149 of 1997. The suit now shall be returned back to the learned Civil Judge Senior Division No. 1 at Guwahati and the learned Civil Judge shall dispose of the matter as early as possible preferably within a period of one year from the receipt of the record as it is a suit of 1985. He shall not grant any more adjournment inasmuch as already 15 years has elapsed and for this delay, Parliament had to enact the law creating the Tribunal.

C. R. No. 920 of 1998.--This is with regard to T. S. No. 214 of 1990 before the learned Assistant District Judge No. 1 at Guwahati filed by the State Bank of India for realisation of an amount of Rs. 37,76,358.11. and that was transferred to the Tribunal where it was registered as O. A. No. 18 of 1998. The suit now shall be returned back to the court of Civil Judge, Senior Division at Guwahati to dispose of the matter in accordance with law.

C. R. No. 453 of 1998.--This arises out of the suit being T. S. No. 43 of 1988 in the court of the learned Assistant District Judge, Jorhat (now Civil Judge, Senior Division) for realisation of an amount of Rs. 29,40,471.47. and the suit was dismissed for default and an application was pending for restoration of the suit under Order 9, Rule 4 of the Civil Procedure Code being Miscellaneous (J) No. 156 of 1995. It was at this stage that the case was transferred to the Tribunal. This case now shall go back to the learned Civil Judge, Senior Division at Jorhat who will decide the application filed under Order 9, Rule 4 of the Civil Procedure Code. It may be mentioned herein that in an application filed under Order 9, Rule 4 there is no necessity to issue notice to the defendant inasmuch as the defendant cannot object to the restoration of the suit. The suit shall be restored to file by the learned civil judge and thereafter he shall proceed with the matter in accordance with law.

C. R. No. 247 of 1998.--This arises out of the suit being T. S. No. 20 of 1996 in the court of Learned Assistant District Judge at Tinsukia. Some money was taken on loan from the financial institution and as the borrower failed to repay the money the industry was taken over by the financial institution and now the financial corporation who is the owner of the unit and this was done after due notice to the defendants. Respondent No. 2 having approached the State Bank of India (R-1) for certain loan, the said bank sanctioned an amount of Rs. 27.75 lakhs by way of cash credit accommodation. As respondent No. 2 proposed to offer as security the same and

identical property which it had already mortgaged to the petitioner by way of equitable mortgage, the petitioner corporation retained its first charge over the mortgaged property. As respondent No. 2 obtained the loan from SBI (R-1) by mortgaging and hypothecating the properties which were already mortgaged and hypothecated to the Corporation. In order to remove all possible doubts a tripartite agreement was arrived at amongst the petitioner, respondent No. 1 and respondent No. 2 on November 23, 1993. The SBI has filed the above T. S. No. 20 of 1996, for realisation of their outstanding dues against respondents Nos. 2 to 9 and prayed for attachment and sale of the properties described in Schedules A to F of the plaint. It may be stated that these properties as mentioned in Schedules A to F is subject to the first charge of the petitioner-Corporation against their liabilities amounting to Rs. 80.49,131 as on September 30, 1996, and the Corporation has already been taken over the property. The same amount was received by the industry by way of transport subsidy and AIDC and SBI at this stage approached this court for a direction that the money may not be disbursed by the AIDC to the industry and this court passed an order in Civil Revision No. 190 of 1997 praying for attachment of the aforesaid transport subsidy and this court remanded the matter to the learned trial court, inter alia, directing that the trial court shall pass necessary order under Order 38, Rule 1 of the Civil Procedure Code to ensure that the money said to have been deposited in the name of AIDC be not allowed to be withdrawn by the defendants till finally the matter regarding the attachment before judgment is disposed of. In the meantime the unit which was taken over by the AFC has been sold and an amount of Rs. 45.10 lakhs was realised from the sale of the property, but even then another Rs. 34 lakhs is to be received by the AFC. Ultimately the matter was transferred to the Tribunal wherein this matter is pending. In order not to cause injustice to anybody I direct that the money which have been deposited that money shall be paid to the AFC and the balance amount shall be handed over to the SBI and the SBI shall keep it in a separate account till disposal of the suit. The suit shall be returned back to the learned Civil Judge, Senior Division to decide the matter. The order of payment regarding Rs. 93 lakhs and odd was made by the Tribunal before the case is transferred.

C. R. No. 588 of 1998.--This arises out of the suit filed by the SBI being T. S. No. 38 of 1992 in the court of the Assistant District Judge, Tinsukia for recovery of an amount of Rs. 16,31,296.17. The suit was transferred to the Tribunal wherein it was registered as O. A. No. 74 of 1997. That record of the case shall now be sent back to the 'Learned Civil Judge, Senior Division, Tinsukia to dispose of the matter in accordance with law.

C. R. No. 534 of 1998.--This arises out of O. A. No. 180 of 1997 filed by United Bank of India, Tinsukia Branch, Tinsukia. That record of the case

shall now be returned back to the bank so that it may be filed before the appropriate court. The time spent for pursuing the matter before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation. The suit shall be disposed of by the Learned Civil Judge as early as possible.

C. R. No. 167 of 1998.--This is with regard to O. A. No. 34 of 1997 filed before the Tribunal by UCO Bank, Sonari Branch, Sonari, Sibsagar for realisation of some amount. That case, i.e., O. A. No. 34 of 1997 shall be returned to the bank to be filed before the appropriate court. The time spent for pursuing the matter before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

C R. No. 2179 of 1998.--A suit was filed by the SBI being T. S. (Mort.) No. 10 of 1994 in the court of Assistant District Judge (Court No. 1) Agartala, West Tripura for realisation of an amount of Rs. 34,32,769.73. Record of the suit shall be sent back to the Assistant District Judge (Court No. 1), Agartala West Tripura for disposal of the case.

C. R. No. 864 of 1998.--A suit was filed being T. S. No. 51 of 1995 in the court of Assistant District Judge No. 1 at Guwahati (now Civil Judge, Senior Division No. 1) for realisation of an amount of 11,74,381.43. That suit was transferred to the Tribunal wherein it was registered as O. A. No. 8 of 1998. Record of the suit shall be returned back to the Civil Judge, Senior Division at Guwahati for disposal of the suit in accordance with law.

C. R. No. 47 of 1998.--T. S. No. 54 of 1993 was filed by Purbanchal Bank Limited (now Central Bank of India) in the court of Assistant District Judge No. 1 at Guwahati for realisation of an amount of Rs. 13,47,635.85. That was transferred to the Tribunal wherein it was registered as O. A. No. 205 of 1997. Record of the suit shall be sent back to the Learned Civil Judge, Senior Division, Guwahati for disposal.

C. R. No. 1386 of 1998.--A suit being T. S. No. 24 of 1996 before the Learned Assistant District Judge, Jorhat for realisation of an amount of Rs. 41,44,464 and that suit was transferred to the Tribunal wherein it was registered as O. A. No. 144 of 1997. How that matter shall be returned back to the Learned Civil Judge, Senior Division, Jorhat for disposal.

C. R. No. 1984 of 1998.--This application has been filed by New India Assurance Co. Ltd. A suit was filed being T. S. No. 4 of 1994 before the Learned Assistant District Judge No. 1 at Guwahati wherein this petitioner was the defendant and that suit was transferred to the Tribunal and that was registered as O. A. No. 21 of 1998. In view of the decision as indicated above, the record of the suit shall now be returned back to the learned Civil Judge, Senior Division for disposal. It is made clear that even before this court the following respondents did not appear-

(i) M/s. Super Finance Co. (R-3).

(ii) Hariram Agarwal (R-4).

(iii) Narendra Kumar Agarwal (R-5).

(iv) Bijoy Kumar Agarwal (R-6).

(v) Anil Kumar Agarwal (R-7).

154. The suit in the trial court proceeded ex parte as against them and that position will continue as against them and there is no necessity to issue notice to them and the suit will proceed from that stage at which it was transferred to the Tribunal.

C. R. No. 1985 of 1998.--A suit being T. S. No. 224 of 1993 was filed before the learned Assistant District Judge, No. 1 at Guwahati and that was transferred to the Tribunal wherein it was registered as O. A. No. 127 of 1997. The record of the suit shall now be transferred to the Civil Judge, Senior Division for disposal. It is made clear that even before this court respondents Nos. 3, 4, 5, 6 and 7 did not appear and there is no necessity to issue notice on them. The suit in the trial court proceeded ex parte as against them and that position will continue as against them and the suit shall proceed from that stage at which it was transferred to the Tribunal. C R. No. 1986 of 1998.--A suit being T. S. No. 219 of 1993 was filed before the learned Assistant District Judge No. 1 at Guwahati and that was transferred to the Tribunal wherein it was registered as O. A. No. 43 of 1997. The record of the suit shall now be returned back to the learned Civil Judge, Senior Division for disposal. It is made clear that even before this court respondents Nos. 3, 4, 5, 6 and 7 did not appear and there is no necessity to issue notice on them. The suit in the trial court proceeded ex parte as against them and that position will continue as against them and the suit shall proceed from that stage at which it was transferred to the Tribunal.

C. R. No. 347 of 1998.--A suit being MS 33 of 88 was filed by UCO Bank for realisation of an amount of Rs. 16,73,549.81. The most unfortunate part of this case is that the suit is pending since 1988 before the civil court for filing WS on behalf of respondents Nos. 2 and 5 showing how the civil court is responsible for causing delay in the disposal of the matter. It is now understood how a suit should be kept pending for five years for filing written statement. Be that as it may, at this stage this matter was transferred to the Tribunal wherein it was registered as O. A. No. 224 of 1997. The suit now shall be returned back to the learned Civil Judge, Senior Division at Dibrugarh and he shall decide this suit within a period of one year as more than 12 years have elapsed from the date of filing of the suit.

C. R. No. 2391 of 1998.--O. A. No. 50 of 1998 was filed by SBI for realisation of an amount of Rs. 1,05,37,890.42. The application now shall be returned to the bank, i.e., State Bank of India, Dimapur Bazar Branch, Dhobinala Road, Dimapur, Nagaland to be filed before the appropriate

court, i.e., before the learned Assistant to Additional Deputy Commissioner (J) at Dimapur, Nagaland. It is needless to say that the period spent for pursuing the matter before the Tribunal as well as before this court shall stand excluded for the purpose of computation of the period of limitation. Learned Assistant to Additional Deputy Commissioner (J) shall dispose of the matter as early as possible.

C. R. No. 779 of 1998.--This is with regard to M. S. No. 255 of 1993 filed by the Bank before the learned Assistant District Judge No. 1 (now Civil Judge, Senior Division No. 1) Kamrup, Guwahati for recovery of the dues amounting to Rs. 17 lakhs and odd. That suit was transferred to the Tribunal where it was registered as O. A. No. 132 of 1997. The record of the case shall be sent back to the learned Civil Judge, Senior Division, Guwahati, to dispose of the matter as early as possible.

C. R. No. 130 of 1998.--A suit was filed by the Punjab National Bank being M. S. No. 146 of 1989 for realisation of Rs. 33,65,853.31 with interest and cost before the learned Assistant District Judge No. 1 at Guwahati and it was transferred to the Tribunal where it was registered as O. A. No. 20 of 1998. The record of money suit shall be returned to the learned Civil Judge Senior Division at Guwahati to dispose of the matter in accordance with law as early as possible.

Civil Rule No. 3069 of 1998.--This matter arises out of a suit being Title Suit No. 77 of 1996 for realisation of an amount of Rs. 32.00 lakhs approximately in the Court of Civil Judge (Senior Division) No. 1 at Guwahati. The suit was transferred to the Tribunal by virtue of Section 31 of the Act wherein it was registered as O. A. No. 9 of 1998. The record of T. S. No. 77 of 1996 shall be sent back to the Civil Judge (Senior Division) No. 1 at Guwahati to proceed with the matter in accordance with law. It is needless to say that the civil court mentioned above shall dispose of the matter at the earliest.

155. This disposes of the matter.

Civil Rule No. 2178 of 1998.--This matter arises out of a money suit filed by the Allahabad Bank being Money Suit No. 37 of 1996 in the Court of Civil Judge (Senior Division) No. 1, West Tripura, Agartala for realisation of an amount of Rs. 16 lakhs approximately. The suit was transferred to the Tribunal by virtue of Section 31 of the Act wherein it was registered as O. A. No. 237 of 1997. The Tribunal shall send back the records of the money suit to the court of Civil Judge (Senior Division) No. 1, West Tripura, Agartala to proceed with the matter in accordance with law. The civil court mentioned above shall dispose of the matter at the earliest.

156. This disposes of the matter.

Civil Rule No. 2705 of 1998.--This matter arises out of a suit filed by the U.C.O. Bank being Title Suit No. 56 of 1988 in the Court of the Assistant District Judge, Tinsukia now Civil Judge (Senior Division), Tinsukia for

recovery of an amount of Rs. more than one crore approximately. That suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 54 of 1998. The suit now shall be transferred by the Tribunal to the Assistant District Judge, Tinsukia now Civil Judge (Senior Division), Tinsukia and the civil court at Tinsukia mentioned above shall dispose of the matter within a period of one year from the date of receipt of the record without further delaying the matter as almost 12 years have elapsed from the date of filing of the suit.

157. This disposes of the matter.

Civil Rule No. 970 of 1998.--This matter arises out of a suit filed by the Canara Bank, Guwahati being Title Suit No. 36 of 1994 in the Court of the Assistant District Judge, Kamrup. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 123 of 1997. The suit now shall be transferred to the Assistant District Judge, Kamrup, Guwahati now Civil Judge (Senior Division) Kamrup at Guwahati and the Civil Judge (Senior Division), Kamrup at Guwahati shall dispose of the matter as early as possible.

158. This disposes of the matter.

Civil Rule No. 532 of 1998.--This application arises out of a suit filed by the Indian Bank being Title Suit No. 21 of 1997 in the Court of Civil Judge (Senior Division), Dibrugarh praying for decree for declaration and enforcement of charge and recovery of loan of Rs. 33.00 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 216 of 1997. The suit now shall be transferred to the Court of Civil Judge (Senior Division), Dibrugarh and the Civil Judge (Senior Division), Dibrugarh shall dispose of the matter as early as possible in accordance with law.

159. This disposes of the matter.

Civil Rule No. 1342 of 1998.--An amount involved in this suit is about one crore forty nine lakhs and an original application was filed being O. A. No. 182 of 1997 before the Tribunal by H.U.D.C. Ltd. (HUDCO). The application now shall be returned to the HUDCO for being presented before the appropriate court. It is needless to say that the period spent before the Tribunal as well as before this court shall be excluded for computing the period of limitation. The civil court on receipt of the application along with the plaint which may be filed shall proceed with the matter in accordance with law and dispose of the matter as early as possible as huge amount of money is involved in it.

160. This disposes of the matter.

Civil Rule No. 372 of 1998.--This matter arises out of a suit filed by the State Bank of India, Guwahati Branch being Title Suit No. 11 of 1995 for realisation of an amount of Rs. 23 lakhs approx. That suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as

O. A. No. 200 of 1997. The suit now shall stand transferred to the court of the Civil Judge (Senior Division) No. 1 at Guwahati for disposal of the matter in accordance with law. The Civil Judge (Senior Division) No. 1 at Guwahati shall dispose of the matter as early as possible.

161. This disposes of the matter.

Civil Rule No. 536 of 1998.--This application arises out of a suit being Money Suit No. 22 of 1992 filed by the UCO Bank in the court of the Assistant District Judge, Sibsagar for recovery of an amount of Rs. 50 lakhs approx. The matter was transferred to Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 39 of 1997. The suit now shall be transferred to the Court below, i.e., Civil Judge (Senior Division) at Sibsagar for disposal. As more than eight years have elapsed from the date of filing the suit, the civil court mentioned above is directed to dispose of the matter as early as possible preferably within a period of 18 months from the date of receipt of the records.

162. This disposes of the matter.

Civil Rule No. 766 of 1998.--This matter arises out of an original application being O. A. No. 238 of 1997 before the Tribunal for recovery of rupees one crore two lakhs approx. The application now shall be returned to the Indian Overseas Bank to be filed before the proper court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

163. This disposes of the writ application.

Civil Rule No. 1196 of 1998.--This application arises out of a suit being Title Suit No. 11 of 1994 filed by the Central Bank of India in the Court of Assistant District Judge, Dibrugarh now Civil Judge (Senior Division) for recovery of Rs. 13 lakhs approx. The matter was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 27 of 1997. The records now shall be sent back to the Civil Judge (Senior Division) Dibrugarh for disposal. As it is a suit of 1994 the Civil Judge (Senior Division), Dibrugarh shall dispose of the matter as early as possible preferably within a period of 18 months from the date of receipt of the records.

164. This disposes of the writ application.

Civil Rule No. 36 of 1998.--This application arises out of an original application being O. A. No. 199 of 1997 filed by the UCO Bank for recovery of an amount of Rs. 17 lakhs approx. The application now shall be returned to the bank to be filed before the proper court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

165. This disposes of the writ application.

Civil Rule No. 54 of 1998.--This application arises out of a suit being Money Suit No. 1 of 1997 which was filed in the Court of Assistant District

Judge, Tinsukia, now Civil Judge, Senior Division, Tinsukia, for recovery of an amount of Rs. 30 lakhs approx. The suit was transferred to the Tribunal under Section 21 of the Act wherein it was registered as O. A. No. 77 of 1997. The suit now shall stand transferred to the Civil Judge (Senior Division) Tinsukia for disposal of the matter in accordance with law and as early as possible preferably within a period of two years from the date of receipt of the records.

166. This disposes of writ application.

Civil Rule No. 868 of 1998.--This matter arises out of suit being Title Suit No. 2 of 1994 filed by the Central Bank of India before the learned Assistant District Judge, Dibrugarh now Civil Judge, Senior Division, Dibrugarh. It was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 94 of 1997. The suit now shall stand transferred to the Civil Judge, Senior Division at Dibrugarh for disposal of the same in accordance with law. As it is the suit of 1994, the learned Civil Judge, Dibrugarh shall dispose of this matter within a period of two years from the date of receipt of the records.

This disposes of the writ application.

167. Civil Rule No. 220 of 1998.--This matter arises out of an original application filed by the UCO Bank being O. A. No. 2 of 1997 for realisation of an amount of Rs. 44 lakhs approx. The application now shall be returned to the bank to be presented before the proper court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

168. This disposes of the writ application.

Civil Rule No. 62 of 1998.-- This matter arises out of a suit filed by the Indian Bank being T. S. No. 89 of 1989 before the Assistant District Judge, Dibrugarh now the court of Civil Judge (Senior Division), Dibrugarh for realisation of an amount of Rs. 92 lakhs approx. The suit shall now be transferred by the Tribunal to the Civil Judge (Senior Division), Dibrugarh for disposal in accordance with law. As it is a suit of 1989, this shall be disposed of by the Civil Judge, Senior Division, Dibrugarh within a period of one month.

169. This disposes of the writ application.

Civil Rule No. 640 of 1998.--This matter arises out of an original application being O. A. No. 120 of 1997 filed by the Union Bank of India for realisation of an amount of rupees more than 10 lakhs. The original application now shall be returned to the bank for being presented before the proper court. It is needless to say that the time spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

170. This disposes of the writ application.

Civil Rule No. 1594 of 1998.--This matter arises out of a suit being Money Suit No. 16 of 1991 filed by the State Bank of India in the Court of Assistant to Deputy Commissioner, Karbianglong, Diphu for realisation of an amount of Rs. 44 lakhs, approx. The suit was transferred to the Tribunal under Section 31 of the Act and the High Court circular wherein it was registered as O. A. No. 32 of 1998. The records now shall stand transferred to the Assistant to D.C. Karbianglong to dispose of the matter in accordance with law. As it is a suit of 1991 it is necessary that the suit should be disposed of as early as possible preferably within a period of one year from the date of receipt of the records.

171. This disposes of the writ application.

Civil Rule No. 2155.--This matter arises out of a suit filed by the United Bank of India being Title Suit No. 121 of 1993 for realisation of an amount of Rs. 14.00 lakhs approx. in the court of the Civil Judge (Senior Division) No. 1 Cachar at Silchar. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 68 of 1997. Now the suit shall go back to the Civil Judge (Senior Division) No. 1 Cachar at Silchar for disposal in accordance with law as early as possible preferably within a period of two years from the date of receipt of the records.

Civil Rule No. 1195 of 1998.--This matter arises out of a suit filed by the United Bank of India being Title Suit No. 43 of 1985 in the court of Learned Assistant District Judge No. 1 at Nagaon for realisation of an amount of Rs. 21.00 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as Original Application No. 150 of 1997. The suit now shall go back to the learned Civil Judge (Senior Division) No. 1 at Nagaon for disposal in accordance with law. This matter shall be disposed of within a period of six months from the date of receipt of the record as more than 15 years have elapsed. It is needless to say that no unnecessary adjournment shall be given by the court to the borrower who has enjoyed the benefit of this amount for such a long period. If no written statement is filed after one chance being given by the court to the defendant, the matter may be proceeded ex parte by the court and the suit shall be disposed of in accordance with law.

172. This disposes of the writ application.

Civil Rule No. 572 of 1998.--This matter arises out of a suit being Title Suit No. 107 of 1995 filed by the Punjab and National Bank in the court of Assistant District Judge No. 1 at Guwahati for recovery of an amount of rupees three crore six lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as Original Application No. 106 of 1997. The suit now shall go back to the court of Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law. As the suit is of more than six years the civil court shall dispose of the matter within a period of 10 years from the date of receipt of this record.

173. This disposes of the writ application.

Civil Rule No. 1313 of 1998.--This matter arises out of a suit being Title Suit No. 186 of 1992 filed by the State Bank of India in the court of Assistant District Judge No. 1 at Guwahati for recovery of an amount of Rs. 25 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 152 of 1997. The suit shall now go back to the learned Civil Judge, Senior Division No. 1 at Guwahati for disposal in accordance with law. The suit shall be disposed of within a period of 18 months from the date of receipt of the record.

174. This disposes of the writ application.

Civil Rule No. 1042 of 1998.--This matter arises out of a suit filed by the United Commercial Bank being Title Suit No. 19 of 1996 in the Court of Civil Judge, Senior Division No. 1, Mangaldoi for recovery of an amount of Rs. 7 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 65 of 1997. The suit shall now go back to the civil court (Senior Division) No. 1 at Mangaldoi for disposal in accordance with law. As the suit is of 1997 the Civil Judge (Senior Division) No. 1 at Mangaldoi shall try to dispose of the matter as early as possible.

175. This disposes of the writ application.

Civil Rule No. 2328 of 1998.--This matter arises out of a suit being Title Suit No. 16 of 1992 in the court of Assistant District Judge at Dhubri for realisation of Rs. 34 lakhs approx. The suit was transferred to the Tribunal wherein it was registered as O. A. No. 78 of 1997. The suit shall now go back to the Civil Judge (Senior Division) at Dhubri for disposal in accordance with law as early as possible.

176. This disposes of the writ application.

Civil Rule No. 401 of 1998.--This matter arises out of a suit filed by the Punjab National Bank being Title Suit No. 19 of 1990 before the Civil Judge, Senior Division, Dibrugarh, for recovery of an amount of Rs. 60 lakhs approx. The suit was transferred to the Tribunal wherein it was registered as O. A. No. 213 of 1993. The suit now shall go back to the learned Civil Judge, Senior Division at Dibrugarh for disposal in accordance with law. As the suit is of more than 10 years the Learned Civil Judge, Senior Division at Dibrugarh shall dispose of the matter as early as possible.

177. This disposes of the matter.

Civil Rule No. 1367 of 1998.--This matter arises out of a suit being Title Suit No. 279 of 1988 in the court of Assistant District Judge No. 1 at Guwahati for recovery of an amount of rupees about 12 lakhs approx. It was transferred to the Tribunal under Section 31 of the Act wherein it was registered as Original Application No. 19 of 1997. The suit now shall go back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law. As it is a suit of 1988 the learned Civil Judge (Senior Division) No. 1 at Guwahati shall dispose of the matter within a period of

eight months from the date of receipt of this record without causing unnecessary delay and if necessary by taking day-to-day hearing.

178. This disposes of the matter.

Civil Rule No. 1358 of 1998.--This matter arises out of a suit filed by the Bank of Baroda being Title Suit No. 12 of 1994 in the court of learned Assistant District Judge at Tezpur now Civil Judge (Senior Division) at Tezpur for recovery of an amount of Rs. 22 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 61 of 1997. The suit now shall go to the Civil Judge (Senior Division) at Tezpur for disposal in accordance with rule. The disposal shall be made within a period of two years from the date of receipt of the records.

179. This disposes of the writ application.

Civil Rule No. 3227 of l998.--This matter arises out of an original application being O. A. No. 86 of 1997 filed by the United Bank of India. The application now shall be returned to the bank to be presented before the proper court in the form of plaint. It is needless to say that the time spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the limitation.

180. This disposes of the writ application.

Civil Rule No. 149 of 1998.--This matter arises out of an original application being O. A. No. 28 of 1997 filed by the State Bank of India for realisation of an amount of Rs. 10,27,869. The original amount was Rs. 8 lakhs. The original application now shall be returned to the bank to be presented before the proper court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of limitation.

181. This disposes of the writ application.

Civil Rule No. 279 of 1998.--This application arises out of a suit being Title Suit No. 69 of 1985 filed in court of Assistant District Judge, Dibrugarh for recovery an amount of Rs. 93 lakhs approx. and that suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 218 of 1997. The suit now shall be sent back to the Civil Judge (Senior Division) at Dibrugarh for disposal. As the suit is of 1985 the matter shall be disposed of within a period of six months from the date of receipt of this record. The learned civil court (Senior Division) shall keep watch and monitor the progress of the suit from time to time so that he may dispose of the matter within a period fixed by this court. Further, the Civil Judge, Senior Division shall take day to-day hearing of the matter and shall not adjourn the matter any further.

182. This disposes of the writ application.

Civil Rule No. 567 of 1998.--This matter arises out of an original application being O. A. No. 1 of 1997 filed by the State Bank of India for recovery of sum of Rs. 27 lakhs approx. The original application now shall be returned to the bank along with the relevant documents to be presented before the proper court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of limitation.

183. This disposes of the writ application.

Civil Rule No. 1999 of 1998.--This matter arises out of a suit being Title Suit No. 13 of 1994 filed by the State Bank of India in the court of Assistant District Judge, Karimganj now Civil Judge (Senior Division) Karimganj for recovery of an amount of Rs. 26 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 56 of 1997. The suit now shall be sent back to the civil court mentioned above and the civil court shall dispose of the matter as early as possible.

184. This disposes of the writ application.

Civil Rule No. 2000 of 1998.--This matter arises out of suit being Title Suit No. 11 of 1994 filed by the State Bank of India in the court of Assistant District Judge, Karimganj now Civil Judge (Senior Division) Karimganj for realisation of a sum of Rs. 83 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 57 of 1997. The suit now shall be transferred to the Civil Judge (Senior Division) Karimganj for disposal. As it is a suit of 1994 and involves a huge amount the Civil Judge (Senior Division), Karimganj shall dispose of this matter within a period of six months from the date of receipt of records without fail if necessary by giving day-to-day hearing of the matter. The Civil Judge (Senior Division) shall monitor the progress of the suit for disposal.

185. This disposes of the writ application.

Civil Rule No. 4777 of 1998.--This matter arises out of a suit filed by the State Bank of India being Title Suit No. 41 of 1994 in the court of Assistant District Judge at Gty. for recovery of sum of Rs. 44 lakhs approx. The suit was transferred to the Tribunal wherein it was registered as O. A. No. 193 of 1997. The Tribunal shall send back the suit to the civil court (senior division) at Guwahati for disposal of the same. The civil court (senior division) shall dispose of the matter as early as possible.

186. This disposes of the writ application.

Civil Rule No. 3647 of 1998.--This matter arises out of a suit filed by the State Bank of India being Title Suit No. 38 of 1996 in the court of Assistant District Judge No. 1 now civil court (senior division) No. 1 at Guwahati for realisation of an amount of Rs. 15 lakhs approx. The suit was transferred to the Tribunal wherein it was registered as O. A. No. 110 of 1997. The suit now shall be sent back to the civil court (senior division) No. 1 at Guwahati for disposal in accordance with law.

187. This disposes of the writ application.

Civil Rule No. 4776 of 1998.--This matter arises out of a suit being Title Suit No. 189 of 1994 in the court of Assistant District Judge at Guwahati by the State Bank of India for realisation of an amount of Rs. 71 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 17 of 1998. The suit now shall be sent back to the civil court (Senior Division) at Guwahati for disposal in accordance with law. As it is a huge amount the learned civil court shall dispose of this matter within a period of two years from the date of receipt of this order.

188. This disposes of the writ application.

Civil Rule No. 5371 of 1998.--This writ application arises out of an original application being O. A. No. 93 of 1998 by the State Bank of India for recovery of an amount of Rs. 37 lakhs. The application now shall be returned to the bank to be presented before the proper court. It is needless to say that the period spent before this court as well as before the Tribunal shall stand excluded for computing the period of limitation.

189. This disposes of the writ application.

Civil Rule No. 3520 of 1998.--This matter arises out of a suit being Title Suit No. 52 of 1990 filed by the Allahabad Bank for recovery of an amount of Rs. 14 lakhs. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 166 of 1997. The suit now shall go back to the Civil Judge (Senior Division) Dibrugarh to dispose of the matter as early as possible as it is a suit of 1990.

190. This disposes of the writ application.

Civil Rule No. 4610 of 1998.--This writ application arises out of a suit filed by the State Bank of India, Tinsukia Branch being Money Suit No. 133 of 1986 in the court of Assistant District Judge, Tinsukia for realisation of sum of Rs. 34 lakhs approx. The suit was pending for a period of 11 years but nothing happened and ultimately, the suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 75 of 1997. The suit now shall go back to the court as indicated, i.e., now civil court (Senior Division) at Tinsukia and the civil court (Senior Division) Tinsukia shall dispose of the matter within a period of eight months from the date of receipt of the record as it is a suit pending since 1986 and the Learned District Judge, Tinsukia shall monitor the progress of the suit. The court shall take day-to-day hearing of the matter and no adjournment shall be given by the court.

191. This disposes of the writ application.

Civil Rule No. 4012 of 1998.--This writ application arises out of an original application being O. A. No. 242 of 1997 by the Bank of Baroda for realisation of an amount of Rs. 11 lakhs approx. The application now shall be returned to the bank to be presented before the proper court in the

shape of plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

192. This disposes of the writ application.

Civil Rule No. 4900 of 1998.--This writ application arises out of a suit being Title Suit No. 266 of 1994 filed by the Union Bank of India in the court of Assistant District Judge No. 1 at Guwahati, now Civil Judge (Senior Division) No. 1 at Guwahati for recovery of an amount of Rs. 82 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as Original Application No. 135 of 1997. The suit now shall be sent back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal as early as possible. The suit shall be disposed of within a period of one year from the date of receipt of the records.

193. This disposes of the writ application.

Civil Rule No. 4914 of 1998.--This matter arises out of a suit being Money Suit No. 168 of 1995 filed by the Canara Bank in the court of learned Civil Judge (Senior Division) No. 1 at Gauhati. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 104 of 1997. The suit now shall be sent back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law as early as possible preferably within a period of two years.

194. This disposes of the writ application.

Civil Rule No. 4644 of 1998.--This application arises out of a suit being Title Suit No. 213 of 1995 filed by the State Bank of India in the court of Civil Judge (Senior Division) No. 1 at Guwahati for recovery of an amount of Rs. 11 lakhs approx. The suit was transferred to the Tribunal wherein it was registered as Original Application No. 162 of 1997. The Tribunal now shall send the suit to the Civil Judge (Senior Division) No. 1 at Guwahati and the civil judge shall dispose of the matter as early as possible in accordance with law.

195. This disposes of the writ application.

Civil Rule No. 4167 of 1998.--This application arises out of a suit filed by the State Bank of India being Title Suit No. 84 of 1996 in the court of Civil Judge (Senior Division) No. 1 at Guwahati for realisation of an amount of rupees one crore one lakh approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 163 of 1997. The suit now shall be sent back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

196. This disposes of the writ application.

Civil Rule No. 4052 of 1998.--This application arises out of an original application being O. A. No. 67 of 1998 filed by the Allahabad Bank for realisation of a sum of Rs. two crore forty lakhs approx. The O. A. now shall be returned to the bank for being presented before the proper court in the

shape of plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

197. This disposes of the writ application.

Civil Rule No. 3568 of 1998--This application arises out of a suit filed by the State Bank of India being Title Suit No. 3 of 1997 in the court of Learned Civil Judge (Senior Division) No. 1 for realisation of a sum of Rs. 83 lakhs. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 203 of 1997. The suit now shall be sent back to the civil court (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

198. This disposes of the writ application.

Civil Rule No. 530 of 1998.--This application arises out of a suit filed by the United Bank of India being Title Suit No. 63 of 1989 in the court of learned Assistant District Judge of Tinsukia for realisation of a sum of Rs. 15 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 88 of 1997. The suit now shall be sent back by the Tribunal to the civil court, i.e., Civil Judge (Senior Division) Tinsukia for disposal in accordance with law.

199. This disposes of the writ application.

Civil Rule No. 348 of 1998.--This application arises out of a suit filed by the UCO Bank being Money Suit No. 32 of 1988 for recovery of a sum of Rs. 14 lakhs in the Court of Assistant District Judge, Dibrugarh and it was transferred to the Tribunal under Section 31 of the Act wherein it was registered as Original Application No. 223 of 1997 before the Tribunal. The record now shall be sent to the Civil Judge (Senior Division) at Dibrugarh for disposal in accordance with law.

200. This disposes of the writ application.

Civil Rule No. 42 of 1998.--This writ application arises out of a suit filed by the Indian Bank being Title Suit No. 14 of 1992 in the Court of Assistant District Judge at Tinsukia for recovery of an amount of Rs. 23 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as Original Application No. 83 of 1997. The suit now shall be sent back to the Civil Judge (Senior Division) at Tinsukia for disposal in accordance with law.

201. This disposes of the writ application.

Civil Rule No. 63 of 1998.--This writ application arises out of a suit filed by the Indian Bank being Title Suit No. 25 of 1989 in the Court of Assistant District Judge at Dibrugarh. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as Original Application No. 208 of 1997. The suit now shall be sent back to the Civil Judge, Senior Division at Dibrugarh to dispose of the matter in accordance with law. The suit shall be disposed of within a period of eight months from the date of receipt of the record.

202. This disposes of the writ application.

Civil Rule No. 1370 of 1998.--This application arises out of a suit filed by the Central Bank of India being Title Suit No. 3 of 1996 in the court of Assistant District Judge at Dibrugarh for recovery of an amount of Rs. 14 lakhs. The suit was transferred to the Tribunal wherein it was registered as O. A. No. 164 of 1997. The suit now shall be sent back to the Civil Judge (Senior Division) at Dibrugarh for disposal and the same shall be disposed of in accordance with law.

203. This disposes of the writ application.

Civil Rule No. 2217 of 1998.--This application arises out of a suit being Title Suit No. 133 of 1996 filed in the court of Assistant District Judge No. 1 at Kamrup, Guwahati for recovery of an amount of Rs. 45 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 47 of 1998. The suit was shall stand transferred to the civil court (Senior Division) No. 1 at Kamrup, Guwahati for disposal in accordance with law.

204. This disposes of the writ application.

Civil Rule No. 1058 of 1998.--This application arises out of an original application filed by the State Bank of India, Dibrugarh Branch, Dibrugarh for recovery of an amount of Rs. 41 lakhs approx. The application now shall be returned to the bank for being presented before the proper court in the shape of plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

205. This disposes of the writ application.

Civil Rule No. 1716 of 1998.--This application arises out of a suit being Title Suit No. 40 of 1995 filed by the Bank of Baroda for recovery of an amount of Rs. 16 lakhs in the court of Assistant District Judge No. 1, Guwahati now Civil Judge, Senior Division No. 1, Guwahati. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 13 of 1998. The matter now shall be sent back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

206. This disposes of the writ application.

Civil Rule No. 374 of 1998.--This matter arises out of an original application being O. A. No. 113 of 1997 for recovery of a sum of Rs. 29 lakhs. The O. A. now shall be returned to the bank for being presented in the proper court in the shape of plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

207. This disposes of the writ application.

Civil Rule No. 1280 of 1998.--This matter arises out of an original application being O. A. No. 55 of 1997 filed by the United Commercial Bank for

recovery a sum of an amount of Rs. 15 lakhs approx. The application now shall be returned to the bank for being presented before the proper court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

208. This disposes of the writ application.

Civil Rule No. 1380 of 1998.--This matter arises out of an original application filed by the U.C.O. Bank being O. A. No. 32 of 1997. Already, the matter has been decided by the Tribunal and a certificate has been issued being' dated March 3, 1998 for recovery of sum of amount of Rs. 69 lakhs approx. As the matter has already been decided by the Tribunal, the question is that whether the Tribunal can execute that certificate. I have found that the Act is the valid principle of legislation and further I have found that the Tribunal has the authority to decide the matter subject to other limitation as prescribed in the matter. Here in this particular case already certificate has been issued and as such this writ application cannot create topsy turvy situation by setting aside the decree and as a matter of fact, there was no argument whatsoever regarding the nullity of decree as it has been passed by a body whose existence was valid. The question is now what can be done for recovery of the amount. Section 7(2) of the Act provides that the recovery Officer and other officers and employees of a Tribunal shall discharge their functions under the general superintendence of the Presiding Officer. I have found that there is no guidelines in Section 28 for proper recovery of the amount. Be that as it may, the Presiding Officer shall give necessary guidelines for recovery of the amount and in doing so, he shall bear in mind the power of the civil court and the Recovery Officer shall recover the amount under proper guidelines of the Presiding Officer. In Debts Recovery Tribunal Regulations of Practice, 1997 Chapter XII provides for judgment and issue of certificate. Chapter XV provides for execution, and Regulation 72 provides as follows :

'72. If the amount mentioned in the notice (as per the certificate) is not paid by the defaulter within the time specified or within such further time as the Recovery Officer may grant in his discretion, the Recovery Officer shall proceed to realise the amount by one or more of the following modes :

(a) by attachment and sale of the defaulter's movable property ;

(b) by attachment and sale of the defaulter's immovable property ;

(d) by appointing a receiver for the management of the defaulter's movable and immovable properties.'

209. No doubt, Recovery Officer not being the Judicial Officer, he cannot pass this order. This order must be passed by the Tribunal and the Tribunal can do so in view of the decision of the apex court stated above inasmuch as apex court pointed out that in order to implement the provisions of the Act, the Tribunal can adopt any procedure which is far, just and proper. Accordingly, the Presiding Officer of the Tribunal shall execute the certificate by adhering to the principle of natural justice and fairness and if necessary by looking to the provisions of the Civil Procedure Code for execution of the amount. Accordingly, this writ application shall stand disposed of in terms of the above order. Necessary judicial mind shall be applied in the matter by the Presiding Officer and after passing necessary order only shall consider and give direction to the Recovery Officer to recover the amount by adopting same principle as was done by the civil court.

210. This disposes of the writ application.

Civil Rule No. 426 of 1998.--This matter arises out of a suit being Title Suit No. 6 of 1988. The suit was decreed and thereafter an execution proceeding was filed being Title Execution Case No. 3/9 and at that stage the matter was transferred to the Tribunal under Section 31 of the Act and after that according to the Debts Recovery Tribunal Regulations of Practice, 1997 in exercise of the power under Rules 51 and 52 of the Practice, 1997 the notice was issued. Regulations 51 and 52 provides as follows :

'Regulation 51.--If the application is for execution of a decree or order passed by any civil court or otherwise, the Presiding Officer on being satisfied that the debt under the civil court's decree is legally recoverable shall issue the notice to the defaulter requiring the defaulter to show cause as to why the reliefs prayed for should not be granted.'

'Regulation 52.--On hearing the defaulter the Presiding Officer when satisfied that the objections raised for to the execution of a decree are untenable in law, he shall forthwith issue a certificate in the prescribed form and shall forward it to the Recovery Officer for its execution.'

211. Thereafter, the Tribunal issued a notice and the matter, was pending before the Tribunal from June 27, 1997 till January 6, 1998. After making the plea by the judgment debtor, this decree was passed in the civil court on admission as is evident from the pleading itself. Thereafter, a plea was taken before the executing court that the decree cannot proceed as there was no compliance with Order 21, Rule 22. Order 21, Rule 22 of the Civil Procedure Code is merely directory and Order 21, Rule 22(2) itself provides that the court can proceed with the execution even without issuing notice. It was on that plea that the execution was stalled by the judgment debtor and even he was successful in stalling the execution before the Tribunal. The pleading is so vague that even there was no name of the court which passed the decree. I am not in a position to send back the matter to the proper court for execution in the absence of any such pleading. In that view of the matter I dismiss this writ application and direct that the Tribunal itself shall execute the decree as no injustice shall be caused to the

decree holder in this matter and the decree was passed on the basis of admission and even he appeared before the Tribunal and took time and the Tribunal gave him opportunity but in spite of that he did not do anything and thereafter he rushed to the court and obtained the stay order. This writ application is dismissed as indicated above because of the negligence, laches and recklessness of the parties. This writ court is a court of equity and the court finds that the parties has not come to the court with clean hands.

212. This disposes of the writ application.

Civil Rule No. 1480 of 1998.--This writ application arises out of a suit filed by the Bank of Baroda being Money Suit No. 48(T) of 1996 in the Court of Assistant to Deputy Commissioner, Shillong for recovery of sum of Rs. 11,26,240. That case was transferred to the Tribunal under Section 31 of the Act read with a circular issued by this High Court on the administrative side on April 27, 1997. That circular reads as follows :

'In view of the establishment of the Debt Recovery Tribunal of Guwahati having its jurisdiction over all the 7 (seven) State of North-East Region, all the concerned subordinate civil courts under the administrative control of the Hon'ble Gauhati High Court, Guwahati are hereby directed to transfer the bank or financial institution cases of the value of rupees 10 (ten) lakhs and above pending in their courts which are triable exclusively by the aforesaid Tribunal only.

The circular may be treated as MOST URGENT and receipt of which be acknowledged.'

213. This circular itself has created trouble because only the civil court has to consider whether this matter is liable to be transferred or not under Section 31 of the Act. Further, as I have seen, this judgment has been passed in a most mechanical manner by taking resort to transfer and thereby giving chance to the party to argue a particular case. Accordingly, this matter shall now is sent back to the Learned Assistant District Judge, Shillong for disposal in accordance with law.

Civil Rule No. 3082 of 1998.--This writ application arises out of original application being O. A. No. 56 of 1998 filed by the U.C.O. Bank before the Tribunal for recovery of an amount of Rs. 24,30,792.75. The application now shall be returned to the bank to be filed before the appropriate court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

214. This disposes of the writ application.

Civil Rule No. 1027 of 1998.--This writ application arises out of an original application being O. A. No. 6 of 1997 filed by the Union Bank of India for recovery of sum of Rs. 17 lakhs approx. The record shall now be sent back to the bank for being presented before the appropriate court. It is

needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

215. This disposes of the writ application.

Civil Rule No. 403 of 1998.--This matter arises out of a suit filed by the State Bank of India being Title Suit No. 20 of 1996. The suit was filed in the court of Assistant District Judge, Tinsukia for realisation of a sum of Rs. 1,13,63,254.09. The suit was transferred under Section 31 of the Act before the Tribunal wherein it was registered as O. A. No. 73 of 1977. Now the matter shall be sent back to the Civil Judge (Senior Division) Tinsukia for disposal in accordance with law. As it is a case of huge amount, the court shall discharge the matter as early as possible preferably within a period of 2 (two) years from the date of receipt of the record.

216. This disposes of the writ application.

Civil Rule No. 578 of 1997.--This arises out of a suit filed by the United Bank of India being Title Suit (M) No. 16 of 1992. The suit was for recovery of sum of Rs. 34 lakhs. The writ petitioner herein was a proforma defendant before the Learned Assistant District Judge, Dhubri. The case was transferred to the Tribunal under Section 31 of the Act and as per High Court circular and the Tribunal on November 12, 1997 passed the following order :

'The applicant side is present. Defendants Nos. 2 and 3 are present. The summon to defendants Nos. 1 and 4 are returned unserved with note that defendant No. 1 'not known and defendant No. 4 left'. Take step for service of summon by paper publication under Order 5, Rule 20 of the Civil Procedure Code. Defendant No. 5 who appeared earlier but absent today. The learned counsel of applicant argues on injunction matter but defendant No. 5 is absent though they filed show cause.

Learned counsel for the applicant submits that defendant No. 5 though at the time of charging the immovable properties of defendant by equitable mortgage agreed to make it as second charge as AIDC (defendant No. 5) had first charge on the mortgaged property. The recital letter dated June 23, 1988 by A.I.D.C. submitted along with injunction petition very clearly show that defendant No. 5 undertook to see the interest of the applicant. The properties mortgaged by defendant No. 1 was valued at Rs. 99.43 lakhs by defendant No. 5 at the time of mortgage on June 23, 1989, but it is allowed that the defendant No. 5 is going to sell the said mortgaged property at Rs. 74 lakhs to defendant the claim of the applicant as second charge who with an expectation that the value of the land would be far more than the value fixed on June 23, 1989 and for the undertaking given by the AIDC (defendant No. 5) the loan was advanced to defendant No. 1 taking security of the immovable properties by creating the equitable mortgage as second charge. It is further alleged that AIDC without protecting the interest of the applicant has taken steps for selling' the said land at a very lower price which is against the interest of the applicant and too by violating their own assurance.

Any way defendant No. 5 has not turned up to argue the case though filed objection. That for ends of natural justice defendant No. 5 is restrained to sell out the said mortgaged land to any person till the hearing of this matter of injunction. Fix December 16, 1997 for hearing on injunction matter, service report.'

217. I do not find any justice to uphold this order inasmuch as this order will show that it does not serve the purpose of the bank or A.I.D.C. or others. Only the borrower is benefited by this order and he has enjoyed the property, though the amount of loan will be more than rupees two crores from the bank as well as from the A.I.D.C. The bank is trying to follow the policy of hard and fast. Accordingly, the order dated November 12, 1997, shall stand vacated and the AIDC may acquire the property as already agreed to sharing the money and leaving the balance for the bank. This writ application shall stand disposed of with the direction as given above with further directions that the records of T. S. No. 16 of 1992 shall be sent back to the Learned Assistant District Judge at Dhubri now Civil Judge (Senior Division), Dhubri. It is found in this particular case that the A.I.D.C. is absolutely careless, negligent and callous to recover its dues. Though the order dated November 12, 1997, passed by the Tribunal was stayed by this court long back, nothing has been done till today.

Civil Rule No. 414 of 1998.--This writ application arises out of an original application being O. A. No. 239 of 1997 filed by the United Commercial bank for recovery of a sum of Rs. 15 lakhs approx. That application shall be returned to the bank to be presented before the appropriate court in the shape of a plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

218. This disposes of the writ application.

Civil Rule No. 1268 of 1999.--This matter arises out of a suit being Title Suit No. 94 of 1996 filed in the court of Civil Judge (Senior Division) No. 1, Guwahati for recovery of an amount of Rs. 11 lakhs approx. The suit was transferred before the Tribunal under Section 31 of the Act as well as High Court circular quoted above wherein it was numbered as O. A. No. 109 of 1997. The Tribunal heard the matter and decided the same. Thereafter a certificate also has been issued for recovery of an amount of Rs. 11 lakhs. The judgment and order of the Tribunal is annexed as annexure I to the writ application. As the matter reached to that stage, I am not inclined to set it aside inasmuch as the finding of the Tribunal regarding service of notice is as follows :

'On the perusal of the record it is revealed that the title suit was filed on June 6, 1996 and was registered on the same day but D.C.F. of Rs. 11,020.90 was paid on July 2, 1996. The civil court issued summons through Nazarat as well as by registered post to defendant. The process through Nazarat was received with a report of the process server Sri Hiren Kalita, who gave his report by swearing that on August 23, 1996 he had been to the place of addressee where he found defendant on search and tendered the summons to him but he refused to accept the same saying' that he would pay the money of the plaintiff by amicable settlement. Therefore the process server served the summon by hanging it in the house of defendant. It is further seen that the summon by registered post was issued on July 31, 1996, and the postal receipt is attached with a hazira dated September 11, 1996, and A. D. card was returned to court after service. The defendant resides at Chanakya Path, G. S. Road, Guwahati, but he did not care to obey the direction of the court. The order for proceeding ex parte had to be given by civil court. The Tribunal after receiving the record perused the earlier actions by the civil court and decided to proceed from the stage which was in the civil court.'

219. It is seen that the borrower did not appear before the civil court only to cause delay. Accordingly, the recovery proceeding shall be initiated by the Presiding Officer and the Recovery Officer shall release the amount under the control and guidance of the Presiding Officer as indicated in the judgment. Accordingly, this writ application shall stand dismissed.

220. This disposes of the writ application.

Civil Rule No. 281 of 1998.--This writ application arises out of a suit being Title Suit No. 75 of 1985 in the Court of Assistant District Judge at Dibrugarh now Civil Judge (Senior Division) Dibrugarh filed by the United Bank of India for recovery of a sum of Rs. 14 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act as well as High Court circular quoted above wherein it was registered as O. A. No. 217 of 1997. The record now shall be sent back by the Tribunal to the Learned Civil Judge (Senior Division) at Dibrugarh for disposal in accordance with law. It is needless to say that as it is a suit of 1985 the civil court shall dispose of the suit within a period of six months from the date of receipt of the record. The Learned District Judge, Dibrugarh shall monitor the progress of the suit.

221. This disposes of the writ application.

Civil Rule No. 1858 of 1998.--This writ application arises out of a suit being Title Suit No. 201 of 1993 filed by the UCO Bank in the court of Assistant District Judge No. 1 at Guwahati now Civil Judge (Senior Division) No. 1 at Guwahati for recovery of a sum of amount of Rs. 92 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification quoted above wherein it was

registered as O. A. No. 22 of 1998. The suit now shall be sent back to the civil court (Senior Division) No. 1 at Guwahati by the Tribunal to dispose of the matter in accordance with law. As it involves a huge amount this shall be disposed of as early as possible preferably within a period of two years from the date of receipt of the record.

222. This disposes of the writ application.

Civil Rule No. 430 of 1998.--This writ application arises out of a suit being Title Suit No. 4 of 1992 filed by the State Bank of India for recovery of a sum of Rs. 38 lakhs in the court of Assistant District Judge No. 1, Guwahati now Civil Judge (Senior Division) No. 1 at Guwahati. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 44 of 1997. The suit now shall be sent back to the civil court (Senior Division) No. 1 at Guwahati for disposal in accordance with law within a period of 18 months from the date of receipt of the record.

223. This disposes of the writ application.

Civil Rule No. 2270 of 1998.--This writ application arises out of a suit filed by the Central Bank of India being Title Suit No. 10 of 1995 in the court of Assistant District Judge at Tezpur for recovery of Rs. 21 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 62 of 1997. The Tribunal shall now send back the record to the Civil Court (Senior Division) at Tezpur for disposal in accordance with rule as early as possible.

224. This disposes of the writ application.

Civil Rule No. 1902 of 1998.--This writ application arises out of a suit being Title Suit No. 80 of 1995 filed by the Central Bank of India in the court of Assistant District Judge No. 2 at Guwahati now Civil Judge (Senior Division) No. 2, Guwahati for recovery of a sum of Rs. 17 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as 117 of 1997. The suit now shall be transferred to the civil court (Senior Division) No. 2 at Guwahati for disposal as early as possible in accordance with law.

225. This disposes of the writ application.

Civil Rule No. 548 of 1998.--This writ application arises out of a suit filed by the U.B.I, being Title Suit No. 11 of 1993 in the court of Assistant District Judge at Golaghat, for recovery of a sum of Rs. 60 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as Original Application No. 25 of 1997. The suit now shall be sent back to the civil court (Senior Division) at Golaghat for disposal in accordance with law.

226. This disposes of the writ application.

Civil Rule No. 1521 of 1998.--This writ application arises out of a suit filed by the Bank of Baroda being Title Suit No. 42 of 1996 for recovery of a sum of Rs. 22 lakhs approx, in the court of Civil Judge (Senior Division) No. 1(K) at Guwahati. The suit was transferred under Section 31 of the Act read with High Court notification to the Tribunal wherein it was registered as Original Application No. 99 of 1997. The suit now shall be sent back by the Tribunal before the Civil Judge (Senior Division) No. 1(K) at Guwahati for disposal in accordance with law.

227. This disposes of the writ application.

Civil Rule No. 2238 of 1998.--This writ application arises out of original application being O. A. No. 43 of 1998 for recovery of sum of Rs. 12 lakhs approx. The O. A. now shall be returned to the bank for being presented before the appropriate court in the shape of plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

228. This disposes of the writ application.

Civil Rule No. 207 of 1998.--This writ application arises out of a suit being Title Suit No. 132 of 1989 filed by the Punjab National Bank for realisation of an amount of Rs. 16 lakhs. The defendant appeared therein and filed a written statement. The suit was filed in the court of Learned Assistant District Judge No. 1 which was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 116 of 97. The suit now shall be transferred to the civil court, (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

229. This disposes of the writ application.

Civil Rule No. 493 of 1998.--This writ application arises out of an original application being O. A. No. 41 of 1997 for realisation of Rs. 12 lakhs approx. The application now shall be returned to the bank to be filed before the appropriate court in the shape of plaint. The period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

230. This disposes of the writ application.

Civil Rule No. 2516 of 1998.--This writ application arises out of a suit being Title Suit No. 176 of 1993 filed by the State Bank of India for recovery of a sum of Rs. one crore in the Court of Learned Civil Judge (Senior Division) No. 1 at Guwahati. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification quoted above. The suit now shall be transferred to the civil court as indicated above for disposal as early as possible preferably within a period of 18 months as it is a matter of 1993.

231. This disposes of the writ application.

Civil Rule No. 1274 of 1998.--This writ application arises out of a suit being Title Suit No. 184 of 1994 in the court of Assistant District Judge No. 1 at Guwahati now Civil Judge (Senior Division) No. 1 at Guwahati filed by the Federal Bank of India for recovery of a sum of Rs. 11 lakhs approx. This suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 42 of 1997. The application now be sent to the civil court mentioned above for disposal as early as possible.

232. This disposes of the writ application.

Civil Rule No. 109 of 1998.--This writ application arises out of a suit being Title Suit No. 29 of 1975 filed in the court of Assistant District Judge, Dibrugarh by the Central Bank of India for realisation of sum of Rs. 12 lakhs approx. That suit was pending for all these 25 years and ultimately it was transferred to the Tribunal vide order dated May 28, 1997 and that order reads as follows :

'ORDER

The parties are steplessly absent. In view of the Hon'ble Gauhati High Court's Notification No. HC.VII-66/96/20 97-2143/A dated April 29, 1997, this suit is transmitted to the Court of the learned Debts Recovery Tribunal, Guwahati. Send the records forthwith. The parties will accordingly note.'

233. Thereafter, it was registered as O. A. No. 212 of 1997 before the Tribunal. This matter now shall be sent back to the civil court for disposal in accordance with law. As it is a suit of 1975, the civil court, i.e., Civil Judge (Senior Division) Dibrugarh shall dispose of the matter within a period of four months from the receipt of the record. The Learned District Judge, Dibrugarh is directed to monitor the progress of suit.

234. This disposes of the writ application.

Civil Rule No. 363 of 1998.--There was a decree in the civil court for an amount of Rs. 29 lakhs. An execution proceeding being Execution Proceeding No. 2 of 1995 was transferred to the Tribunal under Section 31 of the Act read with High Court notification quoted above. Before the Tribunal this case was registered as O. A. No. 171 of 1997 and by taking resort to Clauses 51 and 52 of the Practice of 1997 as quoted above, the certificate was issued by the Tribunal. Some modification was done to the decree by the Learned Tribunal but that was on the basis of the admitted position in the decree. While deciding the matter reliance was placed by the Tribunal in Risk Capital and Technology Finance Corporation Ltd. v. Harnath Singh Bapna : AIR1997Delhi239 . That case is not with regard to the execution of a decree but was a proceeding with regard to setting aside the ex parte decree and there the Delhi High Court by placing a reliance in Mariana v. Rt. Rev. Provost AIR 1941 Ran 305, and other case held that the proceeding to set aside the decree is itself a continuation

of the suit and it was in that view of the matter held that the Tribunal shall have the jurisdiction to decide the proceeding to set aside the ex parte decree. That now also is the decision of the apex court as quoted above. But in this case, the question is absolutely different. The question is that whether a decree passed by the civil court can be executed by any other authority, save and except, civil court in view of the contention of the Civil Procedure Code, Order 21, Rule 10 of the Civil Procedure Code is quoted below.

'10. Application for execution.--Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another court then to such court or to the proper officer thereof.'

235. This aspect of the matter came up for consideration before the apex court in Merla Ramanna v. Nallaparaju : [1955]2SCR938 , wherein the Supreme Court in paragraph 12 pointed out as follows ;

(a) 'It is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter thereof being transferred subsequently to the jurisdiction of another court.'

(b) The Supreme Court took note of the Full Bench decision of the Madras High Court in Ramier v. Muthu Krishna Ayyar AIR 1932 Mad 418, wherein the view was taken that 'in the absence of an order of transfer by the court which passed the decree, that court alone can entertain an application for execution and not the court to whose jurisdiction the subject-matter has been transferred.'

236. Of course, that question was not decided by the Supreme Court nor it was decided in the appropriate court. A decree of a civil court can be transferred only to a court and not to any Tribunal and if that is allowed that will be violative of both the Chapter as well as Order 21 of the Civil Procedure Code. The Supreme Court further pointed out that the subject-matter of the decree is transferred to a court, the order of transfer may be irregular but in spite of it that court will acquire the inherent jurisdiction and it will not be a total length of jurisdiction. But in this particular case the transfer being made to the Tribunal to execute the decree of the civil court, it cannot be done because of lack of jurisdiction. Further Clauses 51 and 52 of the Practice of 1997 quoted above cannot give jurisdiction to the Tribunal inasmuch as in the Act itself that power has not been given and certain rules or procedures cannot be made by the Tribunal as the Act does not provide but that is what appears to have been done in the Clauses 51 and 52 quoted above. On the strength of lack of these two powers, the Tribunal cannot ask to execute the decree of the civil court.

237. This also can be looked at from another angle as reported in Ranjit Chakravarty v. State of Assam, AIR 1981 Gauhati 1. A Letters patent appeal was pending before this court. A preliminary objection was taken that this appeal shall stand transferred to the Assam Administrative Tribunal by virtue of Section 9(3) of the A.A.T. Act, 1977. Section 9(3) is quoted below :

'(3) Notwithstanding anything contained in any law, all suits or other proceedings in respect of any matter over which the Tribunal has jurisdiction and which are pending before any civil court or other authority on the date of coming into force of this Act shall stand transferred to the Tribunal and the civil court or other authority before whom such a suit or proceeding is pending shall transfer all relevant and connected papers and records to the Tribunal and thereupon the Tribunal shall decide the suit and proceedings in the same manner as if they were appeals preferred under the provisions of this Act.'

238. This court after discussing the provisions of the Act and considering the question of the decree of a civil court in paragraph 8 has held as follows (page 3 of AIR 1981 Gauhati) :

'As a result of the foregoing discussions, we overrule the preliminary objection and hold that the appeal has not stood transferred to the Administrative Tribunal under Section 9(3) of the Act and that Division Bench is competent to dispose of the Letters Patent Appeal.'

239. Accordingly, this writ application is allowed and the order dated September 23, 1997, shall stand quashed and the certificate shall also stand quashed and the original decree of the civil court shall be transferred to the civil court, i.e., in the Court of Assistant District Judge, Golaghat now Civil Judge (Senior Division) Golaghat to execute the decree as early as possible as it arises out of a suit being Title Suit No. 28 of 1988.

240. This disposes of the writ application.

Civil Rule No. 1291 of 1998.--This writ application arises out of an Original Application being O. A. No. 9 of 1997 for recovery of sum of Rs. 13 lakhs approx. The application now shall be returned to the bank for being presented before the appropriate court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

241. This disposes of the writ application.

Civil Rule No. 2757 of 1998.--This matter arises out of suit being Money Suit No. 30 of 1996 filed by the State Bank of India in the court of Assistant to the Deputy Commissioner, Dimapur, Nagaland for realisation of sum of rupees one crore fifty three lakhs approx. That suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification, wherein it was registered as O. A. No. 188 of 1997. The record of the suit shall be transferred to the court as indicated above for disposal in accordance with law.

242. This disposes of the writ application.

Civil Rule No. 856 of 1998.--This civil rule arises out of a suit filed by the United Bank of India in the Court of Civil Judge (Junior Division) Sibsagar being Title Suit No. 11 of 1995 for realisation of sum of Rs. 16 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 187 of 1997. The record now shall be sent back to the Civil Judge (Junior Division) Sibsagar, to dispose of the matter in accordance with law.

243. This disposes of the writ application.

Civil Rule No. 937 of 1998.--This writ application arises out of a suit filed by the State Bank of India in the Court of Assistant District Judge, Dibrugarh being Title Suit No. 79 of 1992 for realisation of a sum of Rs. 38 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 207 of 97. The matter shall now go back to the Civil Judge, Senior Division, Dibrugarh for disposal in accordance with law.

244. This disposes of the writ application.

Civil Rule No. 575 of 1998.--This arises out of a suit being Title Suit No. 59 of 1994 in the Court of Assistant District Judge at Sibsagar for realisation of Rs. 63 lakhs by the Indian Bank. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 37 of 1997. The matter now shall go back to the civil court, i.e., in the court of Civil Judge (Senior Division) at Sibsagar for disposal in accordance with law.

245. This disposes of the writ application.

Civil Rule No. 1341 of 1998.--This matter arises out of an Original Application No. 183 of 1997 for realisation of sum of amount of Rs. 140.69 lakh's approx. The original application now shall be returned to the Housing Board for being presented before the appropriate court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

246. This disposes of the writ application.

Civil Rule No. 5211 of 1997.--This writ application arises out of suit being Title Suit No. 95 of 1985 filed by the Union Bank of India in the court of Assistant District Judge at Jorhat for realisation of a sum of Rs. 35 lakhs approx. That suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 151 of 1997. The record shall now be sent back to the Civil Judge (Senior Division) at Jorhat for disposal in accordance with law as early as possible. As it is a suit of 1985 the matter shall be disposed of within a period of six months and the District Judge shall monitor the progress of the suit.

247. This disposes of the writ application.

Civil Rule No. 5212 of 1997.--This writ application arises out of a suit being Title Suit No. 22 of 1989 filed by the Allahabad Bank in the Court of Learned Assistant District Judge No. 1 at Gauhati for realisation of a sum of Rs. 31 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 199 of 1997. The record now shall be sent back to the Civil Judge (Senior Division) No. 1 at Gauhati for disposal in accordance with law as early as possible within a period of two months from the date of receipt of the record.

248. This disposes of the writ application.

Civil Rule No. 306 of 1998.--This writ application arises out of an original application being O. A. No. 4 of 1997 filed by the State Bank of Bikaner and Jaipur for realisation of a sum of Rs. 11 lakhs approx. The application shall now be returned to the bank for being presented before the appropriate court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for being computed for the purpose of limitation.

249. This disposes of the writ application.

Civil Rule No. 1905 of 1998.--This writ application arises out of a suit being Suit No. 3468 of 1995 in the Bombay High Court (Original Jurisdiction) for realisation of a sum of rupees four crore fifty five lakhs approx. and it was transferred to the Tribunal wherein it was registered as O. A. No. 195 of 1997. The record now shall be sent back to the Bombay High Court in view of the decision arrived at above for disposal.

250. This disposes of the writ application.

Civil Rule No. 4392 of 1998.--This matter arises out of a suit filed by the Indian Bank being Title Suit No. 27 of 1995 in the court of Learned Assistant District Judge at Jorhat for realisation of a sum of Rs. 85 lakhs approx. The suit was transferred to the Tribunal wherein it was registered as O. A. No. 62 of 1998. The matter now shall go back to the court, i.e., Civil Judge (Senior Division) at Jorhat for disposal.

251. This disposes of the writ application.

Civil Rule No. 6278 of 1998.--This writ application arises out of an O. A. filed by the State Bank of India being Original Application No. 245 of 1997 for realisation of sum of Rs. 1,60,05,952.99 before the Tribunal. The application shall now be transferred to the bank for being presented before the appropriate court. The period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

252. This disposes of the writ application.

Civil Rule No. 6607 of 1908.--This matter arises out of suit being Title Suit No. 166 of 1996 filed by the Central Bank of India in the court of Civil Judge Senior Division No. 1, Guwahati for realisation of sum of Rs. 15 lakhs approx. The suit was transferred to the Tribunal under Section 31 of

the Act read with High Court notification as indicated above wherein it was registered as O. A. No. 48 of 1998. The record now shall be sent back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

253. This disposes of the writ application.

Civil Rule No. 5375 of 1998.--This writ application arises out of an original application being O. A. No. 55 of 1998 filed by the State Bank of India for realisation of sum of rupees two crore three lakhs approx. The application now shall be returned to the bank for being presented before the appropriate court. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

254. This disposes of the writ application.

Civil Rule No. 41198 of 1998.--This writ application arises out of an Original Application being O. A. No. 61 of 1998 filed by the Central Bank of India for realisation of dues. The application now shall be sent back to the bank for being presented before the appropriate court for disposal. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

255. This disposes of the writ application.

Civil Rule No. 4177 of 1998.--This arises out of an original application being O. A. No. 226 of 1997 filed by the State Bank of India for realisation of dues. This matter was originally filed in the Civil Judge (Senior Division) No. 1, Manipur. The application now shall be returned to the bank for being presented before the appropriate court in the shape of a plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

256. This disposes of the writ application.

Civil Rule No. 4157 of 1998.--This matter arises out of a suit filed by the Vijaya Bank being Title Suit No. 45 of 1996 in the court of Assistant District Judge, Jorhat for realisation of dues. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification quoted above wherein it was registered as O. A. No. 191 of 1997. The suit now shall be sent back to the Civil Judge (Senior Division) at Jorhat for disposal in accordance with law.

257. This disposes of the writ application.

Civil Rule No. 5953 of 1998.--This writ application arises out of an original application filed by the State Bank of India being O. A. No. 69 of 1998 for realisation of sum of Rs. 17 lakhs approx. The application now shall be returned to the bank for being presented before the appropriate court in the shape of plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for being computed for the purpose of limitation.

258. This disposes of the writ application.

Civil Rule No. 5996 of 1998.--This writ application arises out of an Original Application filed by the United Bank of India being O. A. No. 13 of 1997 before the Tribunal for realisation of dues. This matter has already been disposed of by the Tribunal vide order dated July 9, 1998 in O. A. No. 13 of 1997. In that view of the matter, the certificate now shall be executed for recovery of the amount involved in the matter according to the guidelines above in the aforesaid civil rule. There will be no bar for the Tribunal to recover this amount. This writ application shall stand rejected inasmuch as the petitioner has come to this court only after disposal of the matter by the Tribunal.

259. This disposes of the writ application.

Civil Rule No. 5997 of l998.--This matter also has been disposed of by the Tribunal vide order dated July 9, 1998 in O. A. No. 13 of 1997. In that view of the matter the Certificate Officer can recover the amount due under the guidance and supervision of the Presiding Officer as indicated above. Accordingly, this writ application shall stand rejected.

Civil Rule No. 5809 of 1998.--This writ application arises out of original application being O. A. No. 8 of 1997 filed by the United Commercial Bank for realisation sum of Rs. 26 lakhs approx. The application now shall be returned to the bank for being presented before the appropriate court in the shape of plaint. It is needless to say that the period spent before the Tribunal as well as before this court shall stand excluded for computing the period of limitation.

260. This disposes of the writ application.

Civil Rule No. 5176 of 1998.--This writ application arises out of a money suit filed in the court f Assistant District Judge No. 1, Kamrup at Guwahati for realisation of sum of Rs. 11,52,354. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 104 of 1997. The suit now shall be sent back to the court of Civil Judge, Senior Division No. 1 at Kamrup, Guwahati for disposal as early as possible. This disposes of the writ application.

Civil Rule No. 4959 of 1998.--This writ application arises out of a suit being Money Suit No. 140 of 1994 filed by the United Bank of India in the court of Civil Judge (Senior Division) No. 1, Guwahati for realisation of sum of Rs. 1,89,14,796.77. A decree was passed by the civil court and the decree was transferred to the Tribunal. It is submitted by Sri S. Dutta, Learned Advocate for the bank that already half of the amount has been recovered. Now this decree shall be sent back to the Civil Judge (Senior Division) No. 1 at Guwahati for execution for realisation of the balance amount.

261. This disposes of the writ application.

Civil Rule No. 5759 of 1998.-This writ application arises out of suit filed by the UCO Bank being Money Suit No. 170 of 1996 in the court of Civil Judge (Senior Division) No. 1 at Gauhati for realisation of Rs. 15 lakhs approx. That suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 38 of 1998. The matter now shall go back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

262. This disposes of the writ application.

263. Civil Rule No. 5640 of 1998.--This writ application arises out of a suit being Title Suit No. 74 of 1991 filed by the State Bank of India in the court of Learned Assistant District Judge No. 1, Guwahati for realisation of Rs. 15 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 70 of 1998. The suit now shall go back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

264. This disposes of the writ application.

Civil Rule No. 4611 of 1998.--This writ application arises out of a suit being Money Suit No. 74 of 1986 filed by the State Bank of India in the court of Assistant District Judge, Tinsukia for realisation of dues. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 87 of 1997. The record now shall be sent back to the Civil Judge (Senior Division), Tinsukia for disposal in accordance with law.

265. This disposes of the writ application.

W. P. (C) No. 2241 of 1999.--This writ application arises out of a suit being Title Suit No. 29 of 1994 filed by the State Bank of India in the court of Assistant District Judge, Sonitpur, Tezpur for realisation of amount due. The suit was transferred to the Tribunal under Section 31 of the Act wherein it was registered as O. A. No. 59 of 1997. The matter has already been decided by the Tribunal vide order dated March 9, 1999, and accordingly, by execution of the certificate the amount due shall be recovered inasmuch as the petitioner has appeared before the Tribunal and has taken all steps. Now we cannot set at naught the whole proceeding. This writ application shall stand rejected.

266. This disposes of the writ application.

Civil Rule No. 6309 of 1998.--This writ application arises out of an Original Application being O. A. No. 112 of 1998 filed by the United Bank of India for realisation of 15 lakhs. The application now shall be returned to the bank for being' presented before the appropriate court. It is needless to say that the time spent before the Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

267. This disposes of the writ application.

Civil Rule No. 1836 of 1998.--This writ application arises out of original application being O. A. No. 40 of 1998 filed by the State Bank of India for realisation of Rs. 31 lakhs approx. The application now shall be returned to the bank for being presented before the appropriate court. It is needless to say that the period spent before this Tribunal as well as before this court shall stand excluded for the purpose of computing the period of limitation.

268. This disposes of the writ application.

Civil Rule No. 1247 of 1998.--This writ application arises out of a suit filed by the State Bank of India being Title Suit No. 13 of 1990 in the court of Assistant District Judge at Tinsukia for realisation of sum of Rs. 11 lakhs. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 80 of 1997. The suit now shall be sent back to the Civil Judge (Senior Division) at Tinsukia for disposal in accordance with law.

269. This disposes of the writ application.

Civil Rule No. 4591 of 1998.--This writ application arises out of suit being Money Suit No. 60 of 1986 filed by the State Bank of India in the court of Assistant District Judge, Tinsukia for realisation of Rs. 18 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 84 of 1997. The suit now shall go back to the Civil Judge (Senior Division) at Tinsukia for disposal within a period of six months from the date of receipt of the record. The Learned District Judge, Tinsukia shall monitor the progress of the suit.

270. This disposes of the writ application.

W. P.(C) No. 3188 of 1999.-- This writ application was dismissed by this court vide order dated June 30, 1999. Thereafter an appeal being Writ Appeal No. 27 of 1999 was filed and vide order dated August 4, 1999, it was stated that this petition shall be entertained by this court only for consideration of the limited question regarding the vires of the Act and not for the purpose of challenging the award/decree of the Tribunal on other grounds, in respect of which the petitioner may, if so advised, file an appeal before the Appellate Tribunal. As I have taken the view that the decree or order passed by the Tribunal can be executed by the Tribunal by resorting to certificate proceeding under the guidance and supervision of the Presiding Officer as indicated in the earlier judgment. The order passed by the Tribunal on March 8, 1999 in O. A. No. 53 of 1997 arising out of T. S. No. 54 of 1996 shall hold the field and the Presiding Officer of Tribunal as indicated above shall execute the order and recover the amount.

271. The writ application is dismissed.

Civil Rule No. 1981 of 1998.--This writ application arises out of a suit being Money Suit No. 16 of 1991 filed by the State Bank of India in the

Court of Assistant to D.C., Karbi Anglong, Diphu for realisation of a sum of Rs. 44.00 lakhs. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 32 of 1998. The suit shall be sent back to the Learned Assistant to D. C., Karbi Anglong, Diphu for disposal in accordance with law.

272. This disposes of the writ application.

Civil Rule No. 2964 of 1998.--This writ application arises out of a suit being Title Suit No. 68 of 1995 filed by Central Bank of India in the Court of Assistant District Judge No. 1 at Guwahati now Civil Judge (Senior Division) No. 1 at Guwahati for realisation of sum of Rs. 62 lakhs. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 46 of 1998. The suit now shall be sent back in the court of Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

273. This disposes of the writ application.

Civil Rule No. 2511 of 1998-- This writ application arises out of a suit being Title Suit No. 17 of 1994 filed by the State Bank of India in the court of Learned District Judge at Kokrajhar (Now Civil Judge Senior Division) at Kokrajhar, for realisation of Rs. 28 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 146 of 1997. The suit now shall be sent back in the Court of Learned District Judge, Kokrajhar now Civil Judge (Senior Division) at Kokrajhar for disposal in accordance with law.

274. This disposes of the writ application.

Civil Rule No. 2282 of 1998.--This writ application arises out of a suit being Title Suit No. 12 of 1993 filed by the State Bank of India in the court of Learned Assistant District Judge, Jorhat for realisation of dues and that suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O. A. No. 138 of 1997. The suit now shall go to the Civil Judge (Senior Division) at Jorhat for disposal in accordance with law.

275. This disposes of the writ application.

Civil Rule No. 2109 of 1998.--This writ application arises out of a suit filed by the Union of India being Money Suit No. 133 of 1986 in the court of Learned Assistant District Judge No. 1 at Guwahati for realisation of Rs. 12 lakhs approx. The suit has already been decreed on August 19, 1994, and execution was pending being' Money Execution No. 5 of 1995 and that execution was transferred to the Tribunal under Section 31 of the Act read with High Court notification quoted above. The execution shall now go back in view of the decision taken above to the civil court for execution in accordance with law.

276. This disposes of the writ application.

Civil Rule No. 2945 of 1998.--This writ application arises out of a suit filed by the U.C.O, Bank for realisation of Rs. 67 lakhs in the court of Civil Judge, Agartala and that suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification quoted above wherein it was registered as O. A. No. 2 of 1998. The suit now shall stand transferred to the civil court mentioned above for disposal in accordance with law.

277. This disposes of the writ application.

Civil Rule No. 6093 of 1998.--This writ application arises out of a suit filed by the State Bank of India being Title Suit No. 108 of 1995 in the court of Learned Assistant District Judge No. 1 at Guwahati for realisation of Rs. 45 lakhs. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification quoted above wherein it was registered as O. A. No. 19 of 1998. The suit now shall go back to the Civil Judge (Senior Division) No. 1 at Guwahati for disposal in accordance with law.

278. This disposes of the writ application.

W. P.(C) No. 427 of 1999.--This writ application arises out of suit filed by the State Bank of India before the Additional Deputy Commissioner (Judicial) Dimapur being Money Suit No. 105 of 1991. The suit was decreed on March 21, 1993 for Rs. 39 lakhs. Against the said decree respondent No. 3 preferred an appeal before the Kohima Bench of this Hon'ble Court. The said appeal was registered as F. A. No. 9(K) of 1993. The High Court by order dated March 21, 1996, set aside the judgment and decree dated September 21, 1993, with regard to the rate of interest and directed the petitioner to pay the entire decretal amount with contractual rate of interest within six months and the lower court was directed to draw up a decree in terms of the observations and direction of the said order. The decree was drawn up on October 9, 1996. An application was filed for recovery of rupees one crore fifteen lakhs under the Act and that was registered as O. A. No. 78 of 1998 in the Tribunal. The original application shall be returned to the petitioner to be filed before the appropriate court for realisation of the amount. It is made clear that the decree passed by this court shall be executed by the court at Dimapur mentioned above as early as possible preferably within a period of six months from the date of receipt of the order.

279. This disposes of the writ application.

Civil Rule No. 402 of 1998.--This writ application arises out of a suit filed by the State Bank of India being Title Suit No. 33 of 1990 in the court of the Learned Assistant District Judge, at Dibrugarh for realisation of Rs. 36 lakhs approx. The suit was transferred to the Tribunal under Section 31 of the Act read with High Court notification wherein it was registered as O.A. No. 209 of 1997. The suit now shall be returned in the civil court, i.e., Civil Judge (Senior Division) at Dibrugarh for disposal in accordance with law.

280. This disposes of the writ application.

281. Before I part with the record I would like to add the following few lines :

(i) The role of the civil court to dispose of cases at the earliest is their primary duty and obligation. The stick should not be allowed to be used against them on this ground. The courts must bear in mind the old saying that justice delayed is justice denied. They should not allow their epitaph to be written in derogatory terms. The Bar also has a role to play in it. The Bar is not merely the mouthpiece of the clients/litigants, they have a more onerous duty/obligation to the system/institution. They should never allow litigation to be dragged, the gain because of delay in a particular case is temporary, but that gives a body blow to the institution and causes erosion of faith of the public in the institution.

(ii) Before striking down the Act I tried to save the Act by ironing out the creases, if possible, but the attempt was futile. I also tried if the Act can be saved by giving appropriate directions to the authority, that also was not possible, as the Act requires a total change in the hands of the Legislature to uphold its objects. The challenge was not for a mere single breach in the dam, but the challenge washed away the whole dam and it was beyond repair at the hand of this court. I kept in mind the hallowed principle that common laws cannot be an obstacle to the growth of a society and in interpreting a law or to test its constitutionality, it is not our duty to see whether it is offensive to our conscience or to good old common law, but whether it is offensive to the Constitution. Further where a common law and a statute differ, the common law gives place to the statute and an old statute gives place to a new one. In interpreting a statute one must also look to another aspect that the Legislature does not have the charter to enact a law which creates an impossible, impractical and an anomalous situation. If such a situation is found such law must be struck down on the anvil/touchstone of arbitrariness as it is the fundamental principle that arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces and one or the other must of necessity perish whenever they are brought in conflict. The rule of law will get a body blow if arbitrary power and procedure are allowed to survive and grow. In such a scenario the duty of the court is to strike down such arbitrary thing to maintain the balance in the society, leaving it to the Legislature to bring in new set of enactment and rules in its legislative wisdom.

282. Though this judgment was delivered in the open court on August 16, 1999, August 17, 1999, August 18, 1999 and August 20, 1999, it took time to correct and type out the judgment and this judgment has been signed by me on September 21, 1999. The delay is regretted.

Subject	;Banking
Court	Guwahati High Court
Decided On	Aug-20-1999
Case Number	Civil Rules Nos. 5211 and 5212 of 1997 and 34, 36, 42, 47, 54, 62, 63, 109, 130, 149, 167,
Judge	J.N. Sarma, J.
Acts	Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 17, 18, 25, 28 and 31; Constitution of India - Articles 14, 248, 323A, 323B and 371A; Code of Civil Procedure (CPC) ; Transfer of Property Act; Nagaland Administration of Justice Rules, 1937 - Rule 33
Appellant	Assam Leather Industry
Respondent	Union of India (Uoi) and ors.
Appellant Advocate	A. Ajitsaria, N. Dutta, S.S. Dey, M. Nath, M. Choudhary, B.B. Narzary, S. Chouhan, R. Bordoloi, A.C. Das, B.P. Kataky, B.W. Phira, D. Das, D.K. Kothari, H. Sharma, H.L. Mourya, K.P. Sarma, N. Choudhu
Respondent Advocate	S. Dutta, K.K. Dey, P.N. Choudhury, M. Mourya, M. Narayan, D.K. Bhatra, B. Kalita, D.K. Das, L. Talukdar, A. Parvez, G.A. Assam, S. Kejriwal, R. Choudhury, S.K. Medhi, M.J. Das, A.J. Das, P.C. Goswami

Assam Leather Industry Vs. Union of India (Uoi) and ors. - Court Judgment