INDIAN BANK Vs. NARASIMHAN ASHOK SRINIVASAN
DEBTS RECOVERY APPELLATE TRIBUNAL
Narasimhan Ashok Srinivasan and Ors.
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K. Gnanaprakasam, J. -
(1.) THE appellant Indian Bank, Singapore Branch, had filed a suit before the Court at Singapore and after filing of the suit, principal borrowers namely the company became insolvent and by operation of law, the said suit came to be discontinued and the company having been declared as insolvent, the appellant Bank had filed a claim before the Official Liquidator and their claim was accepted. That, thereafter, the appellant had some information that the guarantors are having some properties in India, and they would be able to satisfy the debt due to the appellant, filed the OA before the DRT 2 at Chennai and the said OA came to be dismissed by order dated 8.6.2005. Aggrieved by the same this appeal has been filed.
I have heard the learned Advocate for the appellant and the respondents.
(2.) THE fact that the appellant had already taken out the recovery proceedings by filing a suit before the Singapore Court, is not in dispute. After the legal action taken before the Singapore Court, the first defendant company went into liquidation and it was declared as insolvent, is also not in dispute. Pursuant to the same, the appellant also filed a claim petition. After having exhausted all the remedies available under law, the appellant had chosen to file the OA before the DRT, which was dismissed on two grounds:
(i) The DRT has no jurisdiction to entertain the suit; and
(ii) The claim is barred by time.
The learned Advocate for the appellant was able to impress upon this Tribunal that filing of a suit before the DRT, is not precluded under Section 10, CPC, as the explanation to Section 10, CPC states, "the pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action." Each word in "this explanation carries full of meaning. The pendency of a suit in a foreign Court, will not preclude the Courts in India from trying a suit even if it is founded on the same cause of action. The plain reading of this explanation would make it abundantly clear that the suit filed by the appellant herein before the Indian Court is not only maintainable but the Court in India also entitled to try the suit even if it is filed on the same cause of action. The maintainability of the suit and the trial of the suit on the same cause of action are subject to the pendency of the suit in foreign Court. But, in this case, the suit filed by the appellant before the foreign Court, though not heard and disposed of, it had reached the finality by operation of law. There is no pendency of the suit. That therefore, the appellant is precluded from prosecuting the suit before the Indian Court on the same cause of action, as his action is hit by the principles of res judicata as provided under Section 11, CPC. The situation would have been different, if the appellant had got the suit returned from the foreign Court for want of jurisdiction or on any other ground and presented before the Indian Court and that suit would be taken on file by the Indian Court having jurisdiction, in which case, the time taken by the party for prosecuting the suit before another Court amounts to bonafide and that time will be excluded and the appellant would be entitled to the benefit of Section 14 of the Indian Limitation Act. But the situation in the present case is altogether different and hence the suit is also barred by time. As such, the suit brought by the appellant before the Indian Court proceeded more particularly before DRT, is not sustainable.
(3.) THE learned Advocate for the appellate is trying to explain the issue by relying upon the case of Rameshwarlal v. Municipal Council, Tonk and Ors. , wherein the Hon'ble Supreme Court was of the view that, "Normally for application of Section 14, the Court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in the Civil Court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting the proceeding before the High Court and this Court, obviously pursued diligently and bonafide, needs to be excluded." The facts and circumstances of that case are totally different and, therefore, that decision is not applicable to the case on hand.;
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