Purnima Bathla vs Uttarakhand Gramin Bank And Others

Sharad Kumar Sharma, J

This First Appeal has been preferred by the plaintiff against the dismissal of the Suit, whereby the Court of Additional Civil Judge (Senior Division), Rudrapur, District Udham Singh Nagar had dismissed the Original Suit No. 118 of 2017, Smt. Purnima Bathla v. Uttarakhand Gramin Bank & Others, while deciding the suit on preliminary issue, which was raised by the respondent/Bank by filing of an application Paper No. 28 Ga invoking the provisions contained under Order 7 Rule 11(d) of CPC.

This Appeal has been filed along with a Delay Condonation Application No. 6184 of 2019, with a delay of 85 days seeking its condonation. Since the respondent has already put in appearance and the defendant/respondent does not oppose the condonation of delay, hence the Delay Condonation Application would stand allowed and the delay which has chanced in filing the first appeal would stand condoned.

While hearing this appeal at an admission stage and looking to the circumstances which are legally involved in the present First Appeal, this Court is of the view that it's a fit case where the provisions of Order 41 Rule 11 of the Code of Civil Procedure, deserves to be invoked wherein the First Appellate Court may without issuing notices to the other side to address the Appeal on merits can dismiss the same without admitting it. The provisions of Order 41 Rule 11 of CPC is quoted hereunder:-

'11. Power to dismiss appeal without sending notice to Lower Courts

(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

[(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub -rule (1), it shall deliver a judgement, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgement.]

A very short controversy, which falls out in disputed over here in the instant case is that the respondent/bank had initiated the proceedings for recovery as against the loan advances, which was extended on 23.09.2017 to the tune of Rs. 5,60,000/- and out of it for the recovery of the balance amount to the tune of Rs. 4,19,106/-, the respondent/bank had resorted to the proceedings under Section 13(2) to be read with Section 13(4) and 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002). However, the notice under Section 13(2) was issued as back as on 21.06.2017 and the notice under Section 13(4) was issued on 09.11.2017.

The appellant had instituted the suit as against the proceedings which have been drawn as a consequence of the issuance of the said notice to the appellant under Section 13(2) and action under Section 13(4) of SARFAESI Act, 2002.

At the very initial stage, the defendant Nos. 1 and 2 had filed an application Paper No. 28 Ga invoking the provisions contained under Order 7 Rule 11(d) of the Code of Civil Procedure and had prayed for that the suit may be dismissed on the ground of the bar created by the statute, it has specifically created a bar in filing of suit under Section 34 of the SARFAESI Act, 2002 which is quoted hereunder:-

"34. Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)."

That as against the resorting to the proceedings under the Act, the Civil Court will not have any jurisdiction to entertain any suit or proceedings in any matter, which the Debt Recovery Tribunal or the Appellate Tribunal is empowered to exercise their powers under the Act of 2002. Meaning thereby the provisions contained under Section 34 specifically even creates the bar on the entertainment of Suit, what to say about adjudicating it on any other issues, which involves an interpretation to the notice issued under Section 13(2) read with Section 13(4) of the SARFAESI Act, 2002.

This Appeal since involves an exclusive determination of a legal issue regarding the bar of maintainability of the proceedings of the suit in view of the statutory bar created by Section 34 of the SARFAESI Act, on account of which the Suit of the plaintiff/appellant had been dismissed, this Court is of the view that this First Appeal deserves to be dismissed by invoking the provisions contained under Order 41 Rule 11 of the Code of Civil Procedure.

As far as the implications flowing from Section 34 of the SARFAESI Act, 2002 is concerned, it cannot be disputed that as against the proceedings which are drawn under Section 13 of the SARFAESI Act, 2002 or under any other provisions contained therein, the jurisdiction of the Civil Court had been absolutely barred under Section 34 of the SARFAESI Act, 2002 it even restrains the entertainment of any Suit or proceedings, what to say about the trial of it. In such an eventuality, where the implications of Section 34 is not in dispute between the parties and further when it is not disputed that the proceedings which were put to question before the learned trial Court were emanating from the provisions contained under Section 13 of the SARFAESI Act, 2002, in such an eventuality, Order 41 Rule 11 of CPC will come into play where the learned Appellate Court, while considering the matter when the Court comes to a conclusion that the Appeal deserves to be dismissed, since it has no merit based upon a bar, which is created by law. Hence, at the stage of admission itself, the Rule, contained under Order 41 Rule 11 of CPC will apply before the Appeal is admitted for its hearing.

This Court, while considering the implications of Order 41 Rule 11 of CPC was conscious of the fact that the judicial discretion provided under Order 41 Rule 11 of CPC, ought to be utilised sparingly, but it could be taken into consideration that in exceptional cases, where the admission of an appeal or hearing of an appeal at a later stage, after its admission would ultimately result into its dismissal due to a bar created by law on the maintainability of the Suit itself, the provisions of Order 41 Rule 11 of CPC could be applied by the learned Appellate Court. This is more important from the view point that as far as the instant First Appeal is concerned, there is no serious question of facts, which is required to be considered or controverted by the parties and hence in the light of the ratio as laid down by the Hon'ble Apex Court as reported in AIR 1973 SC 218, Umakant Vishnu Junnarkar v. Pramilabai and others the Appeal arising out of a triable issue should not be dismissed summarily.

"9. We felt that in the particular circumstances of this case it was not necessary to consider the larger question raised by Mr. Bal that in no circumstances can a High Court dismiss a first appeal summarily without reasons.

It is enough to state that, as pointed out by this Court in Mahadev Tukaram vitale and Ors. v. Smt. Sugandha and Anr. an appeal raising triable issues should not be summarily dismissed. Though a fairly large volume of evidence, oral and documentary, had been led by the parties, it was mentioned to us, particularly by the learned Counsel for the appellant, that he proposes to rely only on very few items of evidence on record. We also felt that both sides were anxious that a very early and should be given to this litigation and that the matter should be disposed of by this Court itself on merits."

Meaning thereby, the summary dismissal of an appeal under Order 41 Rule 11 of CPC is not barred under law, more particularly, in the present circumstances of the case, which entails pure determination of a question of law about the maintainability of the Suit itself.

Considering the ratio as propounded by the Allahabad High Court as reported in 2005 (60) ALR 7, Moti Lal v. Bhagwan Das in its paras 11, 12 and 13 has held as under:-

"11. There can be no dispute that the present day situation demands that every possible effort should be made to reduce arrears of litigation. There can also be no dispute that irresponsible, frivolous and mala fide litigation must be weeded out at the earliest. In the case of T. Arivandandam v. T.V. Satyapal reported in, AIR 1977 SC 2421 : 1978 ARC 213 the Supreme Court laid down that an activist Judge is the answer to irresponsible litigation, which must be 'nipped in the bud'. To quote:

"We have not the slightest hesitation in considering the petitioner for the gross abuse of the process of the Court repeatedly and unrepentantly restored to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searching under Order X C.P.C. An activist judge is the answer to irresponsible law suits. The trial Court would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage."

In keeping with the above principle of law we are of the considered opinion that Order XLI, Rule 11 C.P.C. for the appellate Court has been enacted for the same purpose and object as Order VII, Rule 11 C.P.C. is for the trial Court. The only difference being that Order VII, Rule 11 can be invoked at any stage, i.e. even after summons have been issued and the defendant enters appearance; while Order XLI, Rule 11 cannot be utilised after issuing notice.

A regular first appeal from a decree filed under Section 96 C.P.C. is also subject to Order XLI, Rule 11 C.P.C. Therefore, we have no hesitation in holding that even an appeal under Section 96 C.P.C. must be heard and carefully scrutinized by the appellate Court at the threshold stage of Order XLI, Rule 11 C.P.C. and it is the duty of every appellate Court to dismiss even after regular first appeal under Section 96 CPC at the stage of Order XLI, Rule 11, if it has no merit and does not deserve admission. The only rider in such an event would be that the appellate Court will have to record its reasons with regard to such of the grounds taken in the memo of appeal as have been pressed during arguments. We appreciate that this dismissal may not be possible in an appeal where the question of appreciation of evidence is involved and the record of the trial Court is not available before the appellate Court. But even in such situations, at least where the appellate Court is located in the same district as the trial Court, the trial Court's record should be summoned for the hearing under Order XLI, Rule 11 C.P.C. Before the 1999 amendment in C.P.C. (enforced w.e.f 1.7.2002), Order XLI, Rule 11 contained the words "after sending for the record if it (appellate Court) thinks fit so to do". After the said amendment, these words are not found in Order XLI, Rule 11, but we are of the opinion that this does not preclude the calling for the record as there is no prohibition either expressly or by necessary implication. Procedure is hand-maid to justice. In matters of procedure, what is not prohibited expressly or by necessary implication, is permissible if it advances the cause of justice.

Order XLI, Rule 11 C.P.C. is a mandatory provision of the Code of Civil Procedure. No alleged convention or practice can be permitted to over-ride the Statute. Accepting the appellant's submission would amount to holding that Order XLI, Rule 11 does not apply to appeals filed under Section 96 CPC."

This Court has considered and heard the counsel for the parties and after having determined the rival contentions of the parties, and in particular the finding which has been recorded by the learned trial Court pertaining to the maintainability of the Suit on account of the bar created by Section 34 itself, this Court is of the view that the admission of an appeal at this stage would be a futile exercise for future, when the inception of the proceedings itself was barred by law. Hence, this Court is of the confirmed opinion that this is a fit case, where the Court should exercise its powers under Order 41 Rule 11 of CPC of dismissal of the Appeal in limine.

The Hon'ble Apex Court in its judgement as reported in AIR 1972 SC 1932, Mahadev Tukaram Vetale and others v. Smt. Sugandha and another in its para 4 has held as under:-

"4. We have heard arguments from the counsel for the parties. In our opinion the appeal did raise triable issues. It may be noted that Dadu was literate but the will does not bear his signature. It purports to bear only his thumb impression. The reason given for not signing the will was that Dadu on the date he executed the will was quite old and therefore his hands were shaking and consequently he could not sign the document. As Dadu is not proved to have put his thumb impression for any other document it was difficult for the first defendant to prove that the thumb impression in question was not his thumb impression. On the date the will was executed Dadu was admittedly more than 80 years old. Six witnesses are said to have attested the will. Out of them only two have been examined. One of the witnesses is Dr. Vaze. We have gone through his evidence. After going through his evidence, as well as examining the other circumstances of the case we think this is a case which the High Court should not have dismissed summarily. We will not be justified in deciding any of the contentions urged at the bar at this stage. They have to be gone into by the appellate court."

Accordingly, the Appeal is dismissed.

However, having said so, the dismissal of the First Appeal or the Suit in question as a consequence thereto would not create an obstacle, as far as the appellant is concerned in invoking any other statutory remedy, which is available to her in accordance with law.

Thus the First Appeal against the impugned judgement and decree dated 14.11.2018 is dismissed, while exercising provisions of Order 41 Rule 11 to be read with Section 34 of SARFAESI Act, 2002. However, there would be no order as to cost.