PRATAP CH DEY Vs. ALLAHABAD BANK
HIGH COURT OF CALCUTTA
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(1.)As a common question of law arose in these applications under Article 227 of the Constitution, I decided to take up the hearing of these applications analogously and these applications are now being disposed of by this common judgment.
(2.)The question of law that needs to be decided in these applications under Article 227 of the Constitution is formulated below :Whether the Tribunal constituted under the Debts (Due to Bank and Financial Institutions) Act, 1993 (hereinafter referred to as the 'said Act of 1993') shall decide an issue of jurisdiction as a preliminary issue of law by exercising power conferred on the Civil Courts under Order 14, Rule 2 of the Code of Civil Procedure first before deciding the other issues or it shall decide such issue along with other issues at the time of final disposal of the proceedings.
(3.)For the purpose of deciding the foresaid question, the facts which would be relevant for coming to a proper decision are enumerated below :-- By the introduction of the said Act of 1993 some of the suits which were filed in the civil Court or in the original side of this Court were transferred to the tribunal commonly known as debt recovery tribunal and in some of the cases applications under Section 19 of the said Act of 1993 have been made for recovery of money and for other declaration. In the plaint of some of the suits which have been subsequently transferred to Debt Recovery Tribunal; the bank has claimed declaration of charge over the asset and properties mentioned in the plaint, sale of the same and also, a decree under Order 34, Rule 4 of the Code of Civil Procedure. The Bank has also claimed to be the holder of equitable mortgage in respect of the immoveable properties as mentioned in the plaint. According to the petitioners who are the loanee, the suits that have been filed are mortgage suits relating to mortgage of immoveable property and also some moveables. Applications were filed by the loanee before the Bank Recovery Tribunal praying for return of the plaint on the ground that the Bank Recovery Tribunal had no jurisdiction to entertain a mortgage suit and till such decision was made on the aforesaid applications further proceedings before the Bank Recovery Tribunal shall remain stayed. On the aforesaid applications the Bank Recovery Tribunal has passed orders directing trial the jurisdictional point shall be decided along with the main issues raised in the proceeding. Against these types of orders the petitioners who are the loanees before the Bank Recovery Tribunal have come up to this Court under Article 227 of the Constitution. Before I take up the question raised as quoted herein above for decision a preliminary objection raised on behalf of the respective Banks may be considered
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