TATIA, J. - (1.) AT the request of learned counsel for the parties, this appeal is finally heard and decided.
(2.) THE appellant has challenged the order dated 22. 2. 2005 which was passed while considering the application under Order 2 Rule 2 (2) CPC and the trial Court held that the civil suit for recovery of debt filed by the appellant bank is not triable by the Civil Court and it can be entertained only by Debt Recovery Tribunal (for short `the Tribunal') constituted under Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short `the Act of 1993' ). Brief facts of the case are that the plaintiff/appellant bank filed a suit for return of goods which were delivered to the defendant/respondent transporter against which some financial benefits were availed by M/s. Derby Textiles Ltd. and who did not pay the amount to the appellant bank. The appellant also prayed that the money decree, in alternate, of Rs. 43,09,144/- be passed. The suit was filed on 8. 12. 2000. The respondent submitted written statement on 9. 7. 2001 before the civil Court wherein the respondent took an objection about the civil court's jurisdiction in entertaining the suit of the financial institutions like the appellant. It appears that an issue about the question of jurisdiction was framed by the trial court, as submitted by learned counsel for the respondent, but that issue has not been decided by the trial Court. Be it as it may be. The respondent submitted an application under Order 2 Rule (2) read with Section 151 CPC. Respondent in the application under Order 2 Rule 2 CPC submitted that the appellant submitted a petition under Section 19 of the Act of 1993 against M/s. Derby Textiles Ltd. & Ors. wherein the appellant claimed decree of Rs. 10,61,19,303/- including the amount of Rs. 40,40,375. 85 P. with interest. According to the respondent, the amount of Rs. 40,40,375. 85p. is the same amount which has been claimed by the appellant in the present civil suit filed before the civil Court. The Tribunal by its order dated 20. 1. 2004 allowed the appellant's petition under Section 19 of the Act of 1993 against M/s. Derby Textiles Ltd. and other defendants- Nand Kishore, Badri Narayan and Sita Ram for total amount of Rs. 10,61,19,303/ -. It is also submitted by the respondent in its application that even a certificate for recovery of said decretal amount has also been issued by the Tribunal in favour of the appellant. Since the relief which could have been claimed by the appellant against respondent in the earlier petition of the appellant under Section 19 of the Act of 1993 and has not been claimed, therefore, the plaintiff's/appellant's present suit was not maintainable as it was barred by the provisions of Order 2 Rule 2 (2) CPC. While considering the said application filed under Order 2 Rule 2 (2) CPC, the Court below reached to the conclusion that the suit filed by the appellant is not maintainable in civil court in view of the bar created by section 18 of the Act of 1993, therefore, the civil Court neither can entertain the suit nor can proceed with the suit and consequently, cannot decide the application filed under Order 2 Rule 2 (2)CPC filed by the respondent. The Trial Court by order dated 27. 2. 2005 ordered for return of the plaint to the appellant bank for presentation in the proper court/tribunal, obviously, Debt Recovery Tribunal, Jaipur. The trial Court directed both the parties to appear before the Tribunal on 18. 3. 2005. Learned counsel for the respondent pointed out that since the appellant did not submit any application which could have been filed under Order 7 Rule 10a (2), therefore, the trial Court could not have fixed the date for appearance of the parties in the transferee court. The respondent, therefore, submitted a review petition before the court below for deleting the direction by which the respondent was directed to appear before the Tribunal. According to learned counsel for the respondent, that application was allowed and direction issued to the respondent to appear before the Tribunal on 18. 3. 2005 was recalled and set aside. Learned counsel for the appellant bank submits that since there was a court's direction to take back the plaint and present it before the Tribunal, obviously before 18. 3. 2005, which was the date kept by the Court even after allowing the review application of the respondent for appearance of the appellant alone before the Tribunal, therefore the appellant took the plaint and presented it before the Tribunal alongwith the court fees stamps which the appellant submitted before the civil Court. According to learned counsel for the appellant, the Tribunal before registering the petition under Section 19 of the Act of 1993 on the ground of non-compliance of furnishing the requisite fees by demand draft or postal order as required by Rule 7 of the Debt Recovery Tribunal (Procedure) Rules, 1993 (for short `the Rules of 1993') by order dated 27. 5. 2005 held that the plaint returned by the civil Court cannot be presented as such in the Tribunal nor the Court fees stamp can be given credit against the fees payable in the petition filed under the Act of 1993. The reason for not giving credit of the Court fees paid by the appellant in civil suit was that as per Rule 7 of the Rules of 1993, the fees on debt recovery petition under Section 19 of the Act of 1993 only can be paid through crossed Demand Drafts or Indian Postal Order in favour of the Registrar of the Tribunal. In view of the above, the Registrar of the Tribunal passed the order to return the plaint to the appellant with a liberty to present the petition under the provisions of the Act of 1993 by following the procedure prescribed for presenting the petition under Section 19 of the Act of 1993.
(3.) THE appellant thereafter preferred this appeal to challenge the order of the civil Court dated 27. 5. 2005. According to learned counsel for the appellant, now the appellant bank, after obtaining the legal opinion, is also of the view that the appellant could have filed the petition under Section 19 of the Act of 1993 and they earlier under wrong legal opinion bonafidely filed civil suit. It is also submitted in view of the above, the appellant may be permitted to file the petition under Section 19 of the Act of 1993 in place of submitting the plaint itself in Tribunal because of the reason that the appellant complied with the order of the Civil Court dated 22. 2. 2005 and presented the returned plaint in the Tribunal within the time provided by the order of the civil Court, but the Registrar of the Tribunal by order dated 27. 5. 2005 returned the plaint and court fees stamps to the appellant. Learned counsel for the respondent vehemently submitted that the appellant itself withdraw the plaint from the civil court pursuant to the order dated 22. 2. 2005 and presented it before the Tribunal and thereafter, the Tribunal passed the order that the plaint, as such, cannot be accepted by the Tribunal and the Tribunal directed the appellant to take back the plaint for presentation in proper form. In view of the above, this appeal is not maintainable and further the appellant took the plaint from the civil court on 3. 3. 2005 and presented the plaint before the Tribunal on 18. 3. 2005 and the Tribunal passed the order to return the plaint to the appellant on 27. 3. 2005 and according to learned counsel for the respondent, in fact, the plaint has already been returned to the appellant on 1. 6. 2005 and since 1. 6. 2005, the plaint is lying with the appellant and the plaint is not in any civil court or even in Tribunal. Therefore, no order now can be passed in a case in which the plaint has been given back to the plaintiff. ;