- (1.) 1. In between the respective parties the following suits were instituted in the High Court at Calcutta. MAH.B07100557.htm
(2.) Excepting in one suit the respective written statements were filed in the other suits. According to the petitioners, those suits were awaiting for final disposal. Various interim orders were passed in connection with those suits by the High Court at Calcutta. By a notification dated 27th April, 1994 Debts Recovery Tribunal was established. Challenging the vires of the Act the present writ petition was moved along with the other prayers. Such vires was not only challenged in this High Court but for various High Courts as well as in the Supreme Court. Ultimately the Supreme Court held setting up the Debts Recovery Tribunal under the Recovery of Debts due to Banks and Financial Institutions Act, 1953 and Rules framed thereunder are intra vires. According to me, when such question has been declared as intra vires no other question can remain open for due consideration by this Court under Article 226 of the Constitution of India. Yet, Mr. S. N. Mukherjee. learned senior counsel appearing for the petitioners contended before this Court, while the matter was placed for hearing under the heading "old matters" or "old adjourned matters" or "for orders (old matters)", that mere declaration of the Act and Rules as ultra vires cannot give full answer of the Court in connection with the question of counter-claim made by the petitioners. Therefore, they are entitled to get such clarification within the four corners of the writ petition. Frankly speaking, I was reluctant in hearing the matter at the first instance but subsequently I became interested in hearing the point on that score. As to why I became interested those explanations are given hereunder.
(3.) Mr. Mukherjee contended before this court that the judgment and order of the Supreme Court is binding only on the point of vires alone. That does not necessarily mean if arguable points are yet open, the same cannot be agitated before the High Court in the pending writ petition. The points which are agitated before different High Courts and Supreme Court is that grossly the Recovery of Debts due to Bank and Financial nstitutions Act, 1993 and Rules framed thereunder are bias piece of legislation but apart from that a specific point as canvassed here is that there is an apparent vacuum about consideration of counter claim by the Tribunal. Firstly he has drawn my attention to Section 2G of the Act and gave meaning of the 'debt' therein: "debt" means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial Institution or by a consortium of banks or financial institutions during the course, of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application.;