- (1.) When the matter was taken up a preliminary objection was raised by Sri Satish Chaturvedi, learned counsel for the bank that the writ petition is not maintainable as an appeal lies under Section 20 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993, hereinafter referred to as 'the Act'. In order to determine the question a brief reference to the facts of the case may be made. A suit for recovery of money was filed by the State Bank of India against the petitioner. The suit was decreed ex parte by the judgment and decree dated 27-5-1994. An application for setting aside the ex parte decree was filed by the petitioner in the Civil Court, which was pending and was registered as Misc. Case No. 9 of 1996. The decree was put to execution in the Civil Court on 30-5-1995. The execution proceedings as well as the proceedings under Order 9, Rule 13, C.P.C. were transferred to the Debts Recovery Tribunal. The Debts Recovery Tribunal by its order dated 13-6-2000 rejected the application under Order 9, Rule 13, C.P.C. This order and the Ex pate Decree are under challenge in the present writ petition.
(2.) On the issue of maintainability, the first contention of the learned counsel for the petitioner Sri W. H. Khan is that under terms of Section 31. The proceedings under Order 9, Rule 13, C.P.C. could not have been transferred to the Debts Recovery Tribunal. Section 31(1) of the Act 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."
(3.) Sri Khan relies upon a decision of the Patna High Court in 1999 (1) Bank CLR 614, Arbind Kumar v. State Bank of India. In that case it was held that the words 'or other proceedings' occurring in Section 31 are not wide enough to include Misc. Case for setting aside the ex parte decree but refer to proceedings before other authorities, such as proceedings in the nature of certificate proceedings under the relevant State Public Demands Recovery Act before the Certificate Officer if such proceedings are at the instance of the Bank or other Financial Institution, within the meaning of the Act concerned, and these too would stand transferred to the Tribunal. A Division Bench of the Patna High Court in 2001 (1) Bank CLR 240, M/s. Ram Laxman Glass (P.) Ltd. v. State of Bihar has overruled the decision in Arbind Kumar supra. It was held that the words 'other proceeding' have to be given wider meaning and the miscellaneous case filed for restoration of the suit or for setting aside the ex parte decree passed in the suit are deemed to be included in other proceedings. The Division Bench relied upon Allahabad Bank v. Canara Bank, 2000 (4) SCC 406 : (AIR 2000 SC 1535) where the Apex Court held that the adjudication of the liability and recovery of amount by execution of the certificate respectively are within the exclusive jurisdiction of the Tribunal and no Civil Court or Company Court has power to entertain suit or proceeding with regard to it. This question has also been examined in the context of an application under Order 9, Rule 9, C.P.C. by this Court by Hon'ble S. Harkauli, J. in Smt. Nirmala Devi v. Debt Recovery Tribunal in Civil Misc. Writ Petition No. 16600 of 2002, in which it was held that the words other proceeding include proceedings under Order 9, Rule 9, C.P.C.;