D.K.Seth, J. - (1.) The order dated 3rd August, 1998 passed by the Additional Civil Judge, Senior Division, Badaun in O.S. No. 39 of 1992 has since been challenged. Mr. A. K. Srivastava, learned counsel for the petitioner contends that the said order cannot be sustained and is wholly outside the jurisdiction of the learned Civil Judge and, therefore, he had Invoked the jurisdiction under Article 227 of this Court. According to him, by the said order the learned Civil Judge had transferred the records of the said suit to the Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 situated at Jabalpur, Madhya Pradesh. it is contended by Mr. Srivastava that even if the same is taken to be an order of transfer within the meaning of Section 24 of the Code of Civil Procedure in that event, the learned Civil Judge could not have transferred the case beyond the territorial jurisdiction conferred on him. Even if it was exercised by the learned District Judge, the same could not have been transferred beyond the jurisdiction of the district. Therefore, the order is wholly without jurisdiction. Secondly, he contends that under the 1993 Act, the Tribunal possesses Jurisdiction in respect of matters in which debt exceeds Ten lakh rupees. in the present case, though the bank had sought to recover a sum of Fourteen lakh rupees and odd. in defence, the defendant-petitioner had contended that he had paid thirteen lakhs and is liable to pay only a sum of one lakh rupees. Therefore, he has raised a preliminary objection as to the valuation of the suit. According to him, unless the valuation determined. It cannot be possible to ascertain as to whether the matter would be cognizable by the Tribunal on account of its value exceeding Ten lakh rupees. According to Mr. Srivastava, there is a distinction between the valuation for the Court-fees and Jurisdiction and a distinction with regard to the valuation regarding the debt rendering the matter cognizable by the Tribunal under the 1993 Act. in order to transmit the records, the Court is bound to ascertain the value of the suit, without which it cannot be transmitted. Therefore, the Court had exercised its jurisdiction Illegally and irregularly and therefore, the order cannot be sustained. On these two grounds. Mr. Srivastava had contended that the order should be set aside and the valuation should be determined first before embarking upon deciding as to whether the Court had jurisdiction or not. He further contends that even if the Court comes to a decision, it has no jurisdiction in that event, it can only return the plaint. Since the Tribunal is at Madhya Pradesh outside the territorial jurisdiction of the learned. Civil Judge, he could not transfer the case outside his territorial Jurisdiction. Mr. Srivastava had also contended that in the agreement by which the loan was obtained, its jurisdiction was confined to Badaun since the bank was situated at Badaun and the defendant transacted his business at Badaun. Therefore, by reason of the agreement between the plaintiff and the defendants as well as by reason of cause of action, the Court at Badaun has jurisdiction solely and in no other Court. Therefore, this suit could not be transferred to the Tribunal at Jabalpur. Therefore, the order cannot be sustained.
(2.) Mr. K. L. Grover, learned counsel for the plaintiff - opposite parties on the other hand contends that by reason of Section 34 of 1993 Act. the question of Jurisdiction being confined to Badaun cannot be sustained. He further contends that by reason of Section 31, the records are to be transmitted to the Tribunal as soon it is constituted. Since there is a overriding effect of the Act. the question of transmission is to be determined conclusively on the basis of provision contained in 1993 Act. According to him, by reason of Section 31 the suits pending before any Court under sub-section (4) of Section 1 of the said Act shall stand transferred on the date of the constitution of the Tribunal and the Courts before which the suit is pending shall transmit the records to the Tribunal. It is not a transfer. It is only a transmission of the records. Since the transfer is by virtue of an enactment of the said Act having overriding effect. It was a statutory transfer by operation of law. It was not a common transfer as is understood within the meaning of Section 24 of the Code of Civil Procedure. As such the contention of Mr. Srivastava cannot be sustained. He then contends that the valuation is to be determined on the basis of the debt as mentioned in sub-section (4) of Section 1 read with Section 2 clause (9) by which the debt has since been defined. According to him, the question is to be determined on the basis of pleading that has been made out in the plaint. The defence cannot be gone into. He further contends that the question of determining the value does not arise since all suits which come within the meaning of sub-section (4) of Section 1, are automatically transferred on the constitution of the Tribunal on the date of its constitution. It is only a question of transmission. By reason thereof, the civil court had lost Its jurisdiction and it was not open to it even to determine the preliminary issue. Then again, the question of valuation with regard to court-fees and jurisdiction is the valuation of the suit Itself. It is question of jurisdiction and as such, the valuation relating to court-fees shall be the valuation for the jurisdiction. The difference that has been sought to be drawn by Mr. Srivastava, according to Mr. Grover, is untenable. Since the valuation is outside the purview of the revisional Jurisdiction of the District Judge, it is amenable to Section 115 of the Code of Civil Procedure and as such Article 227 cannot be invoked. The petitioner can convert this petition into one under Section 115 of the Code of Civil Procedure since in the meantime, the limitation has set in and such application shall be barred by limitation.
(3.) I have heard both the counsel at length.;