P.K Saraswat And Etc. v. Union Of India And Others

1. All these four cases can be disposed of by a common Judgment.

2. In Writ Petition No. 142 of 1998, the petitioner P.K Saraswat has inter alia made the following prayers:—

(a) for quashing the order dated 15-5-1998 passed by the Learned District Judge (East and North) at Gangtok in Civil Suit No. 15 of 1997 whereby the District Judge ordered that the suit stood transferred to the Debts Recovery Tribunal at Guwahati (in short the “Recovery Tribunal, Guwahati”) at “Tapoban” H.C.B Road, Uzan Bazar, Zorpukhuripar, Guwahati-781001 under the provisions of the Section 31 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (in short the said Recovery Act).

(b) declaration that the district Judge (East and North) at Gangtok had no power of authority to transfer this Civil Suit and the order dated 15-5-1998 passed in the Civil Suit No. 15 of 1997 is without jurisdiction.

(c) that the extension of the said Recovery Act is ultra vires, illegal, bad in law and against the provisions of the Constitution.

(d) writ direction in the nature of Certiorari or mandamus that the Union of India through Secretary, Finance Department, respondent No. 1 or each of the respondent not to act under the said Recovery Act and the declaration that the said Recovery Act cannot be implemented and extended in the State of Sikkim because of its peculiar nature and protection guaranteed by the Constitution of India.

3. In Writ Petition No. 208 of 1998 the petitioner Shri T.P Sharma has inter alia made prayers for quashing the order dated 27-4-1998 of the District Judge (East and North) at Gangtok in Civil Suit No. 41 of 1994 and other prayers made in the Writ Petition No. 142 of 1998 and in this Writ Petition are more or less similar.

4. In Writ Petition No. 424 of 1998 the petitioners Ravi Pradhan and Karma P. Thakapa have inter alia made the following prayers:—

(a) for quashing the notification dated 5-12-1997 being Annexure P-1 to the writ petition whereby the Central Government notified change in the area of jurisdiction of the Recovery Tribunal, Guwahati with effect from 5th December, 1997 from the area of jurisdiction mentioned in column 3 to the area of jurisdiction mentioned in column 4 of the table incorporated in the notification in pursuance whereof the Debts Recovery Tribunal, Guwahati may exercise jurisdiction over Sikkim and entertain and decide the applications coming under the purview of the said Recovery Act. A copy of the Notification dated 5-12-1997 is extracted below:—

“F. No. 1(8)/97-DRT

Government of India

department of Economic Affairs

(Banking Division)

New Delhi, dated 5th Dec., 1997.

NOTIFICATION

G.S.R (E) In exercise of the powers conferred by Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993), the Central Government hereby notifies change in the area of jurisdiction of the Debts Recovery Tribunal, Guwahati w.e.f 5th Dec. 1997 (AN) from the area of jurisdiction mentioned in column 3 to the area of jurisdiction mentioned in column 4 in the Table below:—

Serial Number Place at which Tribunal is established Area of Jurisdiction presently covered Area of Jurisdiction which will be covered 1. “Tapoban” H.C.B Road, Uzanbazar Zber Pukhuri, Ward No. 24, Holding No. 76A, Guwahati-781001 State of Assam, Meghalaya, Manipur, Mizoram, Tripura, Arunachal Pradesh, Nagaland States of Assam, Meghalaya, Manipur, Mizoram, Tripura, Arunachal Pradesh, Nagaland and Sikkim Sd/- (DRS CHAUDHARY) Joint Secretary to the Government of India”

(b) for issuance of declaration that the District Judge (South and West), Gangtok has no power and authority to transfer the Civil Suit No. 11 of 1998 to the Recovery Tribunal, Guwahati. Originally the said Civil Suit was filed before the District Judge (East and North) being Civil Suit No. 4 of 1994 and the same has been numbered as Civil Suit No. 11 of 1998 in the Court of the District Judge (South and West) on transfer under orders of this Court.

(c) other prayers made in Writ Petition No. 142 of 1998, 208 of 1998 and in this writ petition are more or less similar.

5. In Writ Petition No. 452 of 1998, the petitioners Denzong Rubber Industries Private Limited and D.D Mundra have inter alia challenged the order dated 6-5-1998 passed in Civil Suit No. 20 of 1995 by the District Judge (East and North) at Gangtok whereby the District Judge (East and North) ordered that the aforesaid suit stood transferred to the recovery tribunal, Guwahati under the provisions of the Section 31 of the said recovery Act.

6. The grounds taken in the writ petition Nos. 142 of 1998, writ petition No. 208 of 1998 and writ petition No. 452 of 1998 and prayers made are more or less similar. In writ Petition No. 142 of 1998, the Branch Manager, State Bank of India, Gangtok Branch the respondent No. 4 filed a civil suit being civil suit No. 15 of 1997 before the learned District Judge, East and North for recovery of Rs. 15,50,991.61 p. from the petitioner and others and vide order dated 15-5-1998, the learned District Judge (East and North) passed an order to the effect that the said suit stood transferred to the recovery tribunal, Guwahati under provisions of Section 31 of the said recovery Act. In writ petition No. 208 of 1998, the State Bank of India, Gangtok Branch, the respondent No. 4 filed a Civil Suit being civil suit No. 41 of 1994 before the learned District Judge, East and North for recovery of Rs. 1,14,74,678.40 and vide order dated 27-4-1998 the District Judge (East and North) passed an order that the suit stood transferred under provisions of Section 31 of the said recovery Act to the Recovery Tribunal, Guwahati.

7. In writ petition No. 452 of 1998 the respondent No. 4 State Bank of India, Gangtok Branch filed a civil suit being civil suit No. 20 of 1995 against the petitioner for recovery of Rs. 36,55,532.48 p. and other reliefs and vide order dated 6-5-1998 the learned District Judge, East and North passed an order to the effect that the suit stood transferred under provisions of Section 31 of the Recovery Act to the Recovery Tribunal at Guwahati.

8. The grounds taken in writ petition Nos. 142 of 1998, 208 of 1998 and 424 of 1998 are as follows:—

(a) orders of the learned District Judge, East and North by which the Civil suits stood transferred to Recovery Tribunal, Guwahati are bad in law as well as in facts. Section 31 of the said recovery Act does not empower the District Judge and the District Judge has no jurisdiction to transfer a suit from one State to another State. The District Judge not being superior to the Tribunal established under sub-section (1) of Section 3 of the said Recovery Act, he cannot transfer the cases to the Tribunal.

(b) that the State of Sikkim has its own Companies Act viz., Registration of Companies Act, 1961 and State Bank of India being a public financial institution within the meaning of Section 4-A of the Companies Act, 1956 as defined in Section 2(h) of the said Recovery Act and Companies Act 1956 not having been extended and enforced in Sikkim; the State Bank of India is not entitled to file Civil Suit in Sikkim.

(c) the enforcement of the said Recovery Act is illegal and ultra vires as justice is not available at the door steps in Sikkim and petitioner has to go all the way to Guwahati to attend the cases taking his life at risk as Assam is itself a disturbed area.

(d) shifting of jurisdiction from Sikkim to Guwahati is arbitrary. The action of the Central Government in bringing Sikkim within the jurisdiction of Recovery Tribunal, Guwahati is ultra vires and the same is violative of Article 39-A of the Constitution of India.

(e) the said Recovery Act being inconsistent in many respects to the provisions of Sikkim Debt Law, 1910 and other laws relating to recovery of money protected under Articles 371 F(k), the Act encroaches a wide and unfettered ambit of Article 371F(k) guaranteed by the Constitution of India.

(f) that the petitioner could not raise the point of non-joinder of necessary party because of the fact that the order was passed by the learned District Judge that the case stood transferred to Recovery Tribunal, Guwahati on the very first day when the petitioner put his appearance.

(g) action of the Central Government in taking away the jurisdiction of Gangtok Court to Recovery Tribunal at Guwahati is violative of the rights guaranteed under Article 14 and 16 of the Constitution of India in as much as the litigants residing at Sikkim will have to travel all difficult areas and the action of the respondents taking away the jurisdiction from Sikkim to Guwahati is directly depriving petitioner from participating in the proceedings.

9. In the writ petition No. 424 of 1998 the petitioner has sought for quashing of the Notification being F. No. 1(8)/97-DRT dated 5th December, 1997 issued in exercise of the powers conferred by Section 3 of the said Recovery Act, whereby the Debts Recovery Tribunal, Guwahati shall also cover the jurisdiction of Sikkim so far as cases under the said Recovery Act. It is submitted by Mr. B. Sharma appearing for the petitioners that in view of the decision in S.P Sampath Kumar v. Union of India reported in AIR 1987 SC 386 a Circuit Bench of the said recovery Tribunal has to be constituted in the State of Sikkim. Other grounds taken in the writ petitions are more or less similar to the grounds taken in writ petition Nos. 142 of 1998, 208 of 1998 and 452 of 1998.

10. Mr. Moulik, appearing for the State Bank of India respondent No. 4 relied upon the decision in Dr. Dr. Subramaniam Swamy v. Ramakrishna Hegde . reported in AIR 1990 SC 113 and argued that the cardinal principle for the exercise of power under Section 24 or 25 of the Code of Civil Procedure is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the petitioner.

11. Section 31 of the said recovery Act is very clear. Every suit or other proceeding pending before establishment of a Tribunal or if it had arisen after such establishment, within the jurisdiction of such Tribunal shall stand transferred on that date to such Tribunal. Section 31 of the said Act reads as follows:—

“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 of proceeding, the cause of action whereon it is based in 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 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 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 nevo as the Tribunal may deem fit.”

12. The said Recovery Act is a special Act and the said Act has been enacted to provide for the establishment of Tribunals for expeditious adjudication and recovery of debts to banks and financial institutions and for matters connected therewith or incidental thereto. Specific provision for transfer of pending cases has been made in Section 31 of the said recovery Act and, therefore, provision of Code of Civil Procedure for transfer of suit has provided in Section 24 of CPC will not apply. It is not a case that the District Judge has transferred the case before the said Tribunal. All pending suits or proceedings filed by the banks and financial institutions for recovery of debts of rupees ten lakhs or more before any Court in Sikkim shall stand transferred to a Tribunal for expeditious adjudication and by virtue of the notification dated 5-12-1997 cases pending in any Court in Sikkim, shall stand transferred under Section 31 of recovery Act by operation of Section 31 of the said Act. It is not the District Judge who has transferred that suit but the suit shall stand transferred by operation of law made by the Parliament.

13. Mr. Sharma argued that the State of Sikkim has its own Companies Act and State Bank of India being governed by the Companies Act, 1956 is not entitled to file civil suit against the petitioner and others in view of clauses (h) of Section 2 of the said Recovery Act where financial institution is defined as follows:—

“2. (h) “financial institution” means—

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

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

While giving a meaning to the words public financial institutions, reference has been made to Section 4(a) of the Companies Act, 1956 and therefore there is no conflict with the Sikkim Registration of Companies Act, 1961. Though it is doubtful as to whether Sikkim Registration of Companies Act, 1961 can be said to be a law on Companies in strict sense of term, this point will be resolved in an appropriate case. It is well-settled that the Court should not decide as to the legality, validity or the vires of any law and strike it down unless it is absolutely necessary for the disposal of the case before it and the case cannot be disposed without deciding that question. The power of the Courts to strike down any illegal or invalid or ultra vires law is not disputed; but what is disputed is the propriety of doing so without compelling necessity. It may be good to have a giant's power, but it would not always be good to use it as a giant and it cannot be taken to be the settled law that the Court should not strike down a law merely for the pleasure of legal research.

14. So far as the conflict of Sikkim Debt Law and other laws within the said Recovery Act, the Division Bench of this Court in the case of Bhanu Bhakta Lamichaney v. Tek Chand Agarwal reported in AIR 1985 Sikkim 1 observed that the Sikkim Darbar Gazette started being published from 1949-1950 only and, therefore, there could be no occasion for publication of Sikkim Debts Laws, 1910 therein. Not that, no publication, no law, but that publicity is and should be the hallmark of all legislative process. Sikkim Debt Law, 1910 has now been published in Sikkim Code and this observation is no longer available.

15. Sub-section (2) of Section 1 of the said Recovery Act shows that it extends to the whole of India except the State of Jammu and Kashmir and, therefore, it has its application in the State of Sikkim. With the extension and enforcement of any Central Act, all corresponding Sikkim Laws shall stand impliedly repealed. This said Recovery Act, is a Central Act. With the extension and enforcement of any Central Act corresponding law would be deemed to have been over borne, overthrown and impliedly repealed by the extension and enforcement of the said Recovery Act and such Act is to be validly enforced without express repealment of corresponding Sikkim Law. Therefore, Sikkim Debt Law and any other law on Recovery of Debts stand automatically repealed with the extension of the said Recovery Act, if such laws are corresponding to the Recovery Act.

16. The petitioners have rightly pointed out that it will cause undue hardship to the petitioners to appear before the said Recovery Tribunal, Guwahati for various reasons as indicated in the petition. Dislocation of roads between Gangtok and Siliguri between June and September every year is a regular affair. There were unfortunate incidents such as blasting of bombs on the railway line and other law and order problems in Assam are likely to prevent the people of Sikkim from going there. Weather of Guwahati also will not suit for the people of hilly Sikkim having cold weather throughout the year. I would, therefore, direct the Secretary, Ministry of finance, Banking division, Government of India to set up a Circuit Bench of the Tribunal at Gangtok capital of Sikkim as expeditiously as possible.

17. All these four cases are old cases and will have to be disposed of by the Recovery Tribunal Guwahati. It shall be open to the petitioner to raise the points canvassed in the writ petitions before the said Tribunal and if canvassed the Tribunal shall dispose of the points in accordance with law.

18. The District Judge (East and North) Gangtok is directed to transmit the records of Civil Suit Nos. 15 of 1991, 41 of 1994, 20 of 1995, if not already sent, to the Debts Recovery Tribunal, Guwahati, “Tapoban”, H.C.B Road, Uzan Bazar, Zorpukhuripar, Guwahati-781001 within a week from the date of receipt of this order.

19. The District Judge (South and West) is directed to pass orders under the provisions of Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 in Civil Suit No. 11 of 1998 within ten days from the date of receipt of the order and shall transmit the records of Civil Suit No. 11 of 1998 to the Debts Recovery Tribunal, Guwahati immediately.

20. There is no merit in the writ petition Nos. 142 of 1998, 208 of 1998, 424 of 1998 and 452 of 1998 and therefore dismissed. There will be no order as to costs.

Petition dismissed.