Bank of India vs Ashok and Others

S.B. Sakrikar, J.

The applicants/decree-holders have directed this Revision against the order dated 2-11-2001 as also order dated 7-12-2001 passed by the IIIrd Additional District Judge, Indore in Civil Misc. Case No. 198/2001. During the course of argument, the learned counsel for the applicants restricted his arguments only with regard to the order passed by the Court below dated 7-12-2001 and does not press this Revision against the order dated 2-11-2001. By order dated 7-12-2001 the learned Court below held that the application filed before the said Court under Order 9 Rule 13 of the CPC is within its competence, even after the recovery proceedings in connection with the ex parte decree passed by the said Court is pending before the Debt Relief Tribunal, instituted under the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 (for short ''the Act'').

It is not in dispute that before coming into force of the aforesaid Act, a suit was filed by the respondent-Bank against the non-applicant Nos. 2 to 4 before the Court below for recovery of Rs. 54,43,242.12. The said suit was decreed ex parte against the present non-applicants Nos. 2 to 4. After the passing of the ex parte decree, Act of 1993 came into force. As such an execution was filed by the respondent-Bank before the Debt Relief Tribunal constituted under the said Act, as the valuation of the execution was exceeding Rs. 10 lacs. Subsequently, the applicant also filed application before the Trial Court for setting aside the ex parte decree passed in Civil Suit No. 47-A/96 under the provisions of Order 9 Rule 13 of the CPC. An objection was raised on behalf of the applicant-Bank, that as recovery proceedings against the ex parte decree passed in favour of the Bank are pending before the Debt Relief Tribunal, the Civil Court (Trial Court) does not have any jurisdiction to entertain the application filed under Order 9 Rule 13, CPC.

Reliance is placed on the decision of Hon''ble the Patna High Court reported in the case of National Rubber Industries and Anr. v. State Bank of India and Anr. (Company Cases 2001, Vol. 15, p. 498) and the decision of Madras High Court reported in the case of M. Vasanthalaxmi and Anr. v. Indian Bank and Ors. (Company Cases 2001, Vol. 106, p. 360). Learned counsel for the applicant contended that in view of the provisions of Section 31 of the said Act, the jurisdiction of the Civil Court is ousted for any miscellaneous proceedings pending before the Civil Court after coming into force of the Debt Relief Tribunal.

I have carefully considered the submissions of the learned counsel for the applicant and perused the decisions of Hon''ble the Madras and Patna High Courts as also the provisions of Section 31 of the said Act and Order 9 Rule 13, CPC. Order 9 Rule 13, CPC clearly gives jurisdiction to hear an application for setting aside the decree passed ex parte, to the Court, which passed the decree. In this case, it is not disputed, that the application for setting aside the ex parte decreed under Order 9 Rule 13, CPC was filed on behalf of the respondents before the Civil Court, which passed the ex parte decree in favour of the Bank. As such, in view of the aforesaid provisions, the jurisdiction lay with the Civil Court (Trial Court), which passed the ex parte decree in favour of the applicant-Bank.

On considering the provisions of Section 31 of the said Act, as also the law laid down by Hon''ble the Patna High Court in case of National Rubber Industries (supra) and Hon''ble the Madras High Court in the case of M. Vasanthalaxmi (supra), in my considered opinion, the proceedings under Order 9 Rule 13, CPC are considered to be continuation of the proceedings of the original suit. Section 31 of the said Act says that such proceedings, if arise out of the suit or any proceedings instituted prior to coming into force of the Act, 1993 are within the competence of the Civil Court, "then'' even after coming into force of the Act, remain triable by the Civil Court and the provisions of Section 31 of the said Act can not be applied.

In view of the above, it can be safely held that the suit as filed by the applicant-Bank in view of the valuation of the suit was within the jurisdiction of the Civil Court even after coming into force of the Act, 1993. As such, miscellaneous proceedings i.e., proceedings under Order 9 Rule 13, CPC are maintainable before the said Court, even if execution of the decree passed ex parte in favour of the Bank is pending before the Debt Relief Tribunal. Consequently, I do not find any merit or substance in this Revision requiring interference in view of the provisions of Section 115 of the Code of Civil Procedure. As such, I decline its admission and dismiss the same summarily without notice to the other side.