IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 22861 of 1999
1. INDIAN BANK
... Petitioner
Vs
1. EKM DIST.MOTOR TRANSPORT CO-OP.SOCIETY
... Respondent
For Petitioner :SRI.E.SUBRAMANI
For Respondent :SRI.C.S.MANILAL
The Hon'ble MR. Justice K.K.DENESAN
Dated : 23/12/2005
O R D E R
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O.P. No. 22861 OF 1999 V@@
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Dated this the 23rd December, 2005@@
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.PL 55
.SP 2
((HDR 0
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.HE 1
Whether a suit or other proceeding filed by a
bank or financial institution as defined in the Recovery
of Debts Due to Banks and Financial Institutions Act,
1993 (for short the Act) and pending adjudication before
the Registrar of Co-operative Societies under the Kerala
Co-operative Societies Act, 1969 (hereinafter referred to
as the Societies Act) would stand automatically
transferred to the Recovery Tribunal constituted under
the Act? If not, dismissal of the suit by the Registrar,
instead of returning the same for presentation before the
Tribunal, is not improper resulting in miscarriage of
justice? These are the questions for consideration in
this Original Petition filed in the backdrop of the
following facts.
2. Petitioner is a nationalised bank and
respondent No. 1 is a co-operative society registered
under the Societies Act. According to the petitioner,
respondent No. 1 borrowed a certain sum of money from
the petitioner-bank, respondent No. 2 executed
agreements of guarantees in favour of the petitioner,
agreeing among other, to repay the amount found due from
the 1st respondent and an amount of Rs.76,10,357/- became
due in the account of the 1st respondent as it stood on
6-6-1996. Since respondents 1 and 2 failed to repay the
amount despite notices issued, petitioner filed
Arbitration Case No. 258 of 1996 on 7-6-1996 before the
Joint Registrar of Co-operative Societies, Ernakulam
under Section 69 of the Societies Act. Respondent No. 3
as per proceedings dated 18-7-1996 directed th 4th
reespondent- Asst. Registrar of Co-operative Societies
(hereinafter referred to as the Arbitrator) to hear and
dispose of ARC No. 258 of 1996.
3. The Debts Recovery Tribunal (for short,
Tribunal) having jurisdiction to entertain and try the
above suit was established with effect from 4-11-1996.
Noticing the bar of jurisdiction under the Act, the
Arbitrator held that it ceased to have jurisdiction to
try and decide the dispute involved in ARC No. 258/96
with effect from 4-11-1996 and that the Tribunal is the
competent authority to resolve the dispute. Petitioner
requested the Arbitrator to transfer the case to the
Tribunal or to return the plaint for presentation before
the Tribunal. The Arbitrator, however, held that he has
no power to transfer the case to the Tribunal under the
Act or under the Societies Act. According to the
Arbitrator, Section 31 of the Act provides for transfer
of cases pending before the Courts only and the
Arbitrator under Section 69 of the Societies Act being
not a court, the only course open to it was to dismiss
the case. Accordingly, A.R.C. No. 258 of 1996 was
dismissed as per Ext. P4 order dated 21-7-1999 with
liberty to the petitioner to file a suit before the
Tribunal at Chennai. Feeling aggrieved, petitioner filed
this O.P. to quash Ext. P4 order to the extent the 4th
respondent has dismissed A.R.C. No. 258 of 1996 and to
direct the 4th respondent to transfer the above
arbitration case to the Tribunal under the Act or in the
alternative to return the arbitration case to the
petitioner for proper presentation before the appropriate
forum, within a time to be granted by the 4th respondent.
4. The arbitration case was filed on 7-6-1996
under Section 69 of the Societies Act. The 1st
respondent is a co-operative society registered under the
Societies Act. Hence, as matters stood then, the
Arbitrator under the Societies Act alone had the
jurisdiction to adjudicate and resolve the dispute
between the petitioner and the first respondent. Section
100 of the Societies Act says that no civil or revenue
court shall have jurisdiction in respect of any matter
for which provision is made in the said Act. The plaint
submitted by the petitioner was taken on file by the
Arbitrator as A.R.C. No. 258 of 1996 and was posted for
hearing on 23-4-1997, 14-5-1997 and 21-6-1997.
Thereafter, there was no posting due to the absence of
the 1st defendant. Petitioner and the 2nd defendant in
the arbitration case were present on the dates of posting
of the case. While so, it was brought to the notice of
the Arbitrator that the provisions of the Act have been
made applicable to the State of Kerala by constituting
appropriate tribunal with effect from November, 4, 1996,
the appointed day under Section 2(c) of the Act. Though
the petitioner requested that the arbitration case may be
transferred to the Tribunal, the Arbitrator did not take
any decision for quite some time. Since the matter was
kept pending, petitioner filed O.P. No. 16186/1999
before this Court. O.P. No. 16186 of 1999 was disposed
of directing the Arbitrator to take appropriate decision
within a time frame. It was thereafter, Ext. P4 order
was passed on 21-7-1999 and the same was communicated to
the petitoner as per Ext. P3 letter dated 27-7-1999.
5. Shri. S. Easwaran, learned counsel for the
petitoner raised, mainly, two contentions. (1) For the
purpose of transfer of pending suits and other
proceedings to the Tribunal having jurisdiction, Section
31 of the Act shall be so construed as to include within
its purview, not only suits and proceedings pending
before courts but also those pending before other
authorities as on the date of establishment of the Act
and (2) The Arbitrator ought not to have dismissed A.R.C.
No. 258 of 1996 on the ground of ouster of jurisdiction,
but returned the plaint for presentation before the
appropriate forum, even assuming that the case could not
have been transferred to the Tribunal constituted under
the Act.
6. Per contra, it was submitted on behalf of the
respondents that the Arbitrator ceased to have
jurisdiction to decide the case in the light of Sections
17 and 18 of the Act and in the absence of any specific
provision in the Act to transfer the cases pending before
other authorities like the Arbitrator or to return the
plaint to the plaintiff for presentation before the
appropriate forum, the only course open to it was to
dismiss the case.
7. The Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 (51/93) came into force
on 24-6-1993. Section 3 of the Act deals with
establishment of Tribunals. Section 2(c) of the Act
speaks about `appointed day’. As far as this case is
concerned the appointed day is 4-11-1996. The subject
matter of ARC No. 258 of 1996 comes within the purview
of the Act. On and from 4-11-1996 the Tribunal having
territorial jurisdiction over this State is the competent
forum to adjudicate and decide the dispute between the
petitioner on the one hand and respondents 1 and 2 on the
other. Section 17 of the Act mandates that on and from
the appointed day Tribunal alone will have the
jurisdiction, powers and authority to entertain and
decide applications from the banks and financial
institutions for recovery of debts due to such banks and
financial institutions. Section 18 of the Act which
deals with bar of jurisdiction reads as follows:
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.SP 1
“18. Bar of Jurisdiction.–On
and from the appointed day, no court or
other authority shall have, or be
entitled to exercise, any jurisdiction,
powers or authority (except the Supreme
Court, and a High Court exercising
jurisdiction under articles 226 and 227
of the Constitution) in relation to the
matters specified in Section 17.”
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.SP 2
Parliament in its wisdom incorporated Section 31 of the
Act to provide for transfer of pending cases to the
appropriate Tribunals. Section 31 of the Act reads as
follows:
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.SP 1
“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 where on 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.
(2) Where any suit or other
proceeding stands transferred from any
court to a Tribunal under sub-section
(1),–
(a) the court shall, as soon as
may be after such transfer, forward the
records of such suit or other proceeding
to the Tribunal; and
(b) the Tribunal may, on receipt
of such records, proceed to deal with
such suit or other proceeding, so far as
may be, in the same manner as in the case
of an application made under section 19
from the stage which was reached before
such transfer or from any earlier stage
as the Tribunal, may deem fit.”
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.SP 2
8. A plain reading of Sections 17 and 18 of the
Act shows that ouster of jurisdiction as well as bar of
jurisdiction brought into force by the Act applies to
courts as well as other authorities. But provision for
transfer of pending cases is made only in respect of
suits and other proceedings before courts. It is for
this reason respondents took up the contention that the
arbitration case which was pending before the Arbitrator
on the appointed day cannot be transferred to the
Tribunal.
9. Is it that the Legislature did consciously
omit the words `other authorities’ in Section 31 of the
Act or is it only an inadvertent or accidental omission?
In other words is it a case of casus omissus?
10. The Act was brought into force with the
object of removing the difficulties experienced by banks
and other financial institutions in recovering the loans
as also the enforcement of securities charged with them.
Legislature took cognizance of the fact that the
procedure which existed prior to the commencement of the
Act had blocked a significant portion of the funds of the
aforesaid institutions in unproductive assets, the value
of which deteriorates with the passage of time.
Parliament felt the need to work out a suitable mechanism
through which the dues to the banks and financial
institutions could be realised without delay since the
blocking of huge amount of public money in litigation
prevented proper utilisation and recycling of the funds
for the developlment of the country. Prior to the
establishment of the Act, banks and financial
institutions used to seek reliefs from the civil courts
or other authorities set up under special enactment. The
other authorities constituted under various enactments
were invested with the power to adjudicate the issues and
to decree the suit. Most of these enactments contained
express provisions ousting the jurisdiction of the civil
courts to entertain such suits. As per Section 17 of the
Act, not only the civil courts but also the other
authorities would cease to be the forum having
jurisdiction to try and dispose of matters coming within
the jurisdiction of the Tribunal. Bar of jurisdiction
applies to specified categories of suits and proceedings,
pending not only before the civil courts but also other
authorities on the appointed day. These aspects strongly
raise the question whether the Legislature which treated
suits and other proceedings before the courts and other
authorities alike for the purpose of ouster of
jurisdiction and bar of jurisdiction, did intend to treat
dissimilarly suits and proceedings before the other
authorities for the purpose of transfer of cases? There
appears hardly any valid reason or rationale for such
dissimilar treatment by excluding other authorities from
the purview of automatic transfer of cases. No purpose
also could be seen for such dissimilar treatment.
Therefore, it is possible to infer that it could be a
case of legislative omission; an omission which is
inadvertant or accidental and unintentional. Provisions
in the statute treating equals as unequals and violating
Article 14 of the Constitution of India are liable to be
struck down as ultravires. It is well settled that as
far as possible, Courts adopt a construction which would
bring the legislation intravires the Constitution and
avoid, as far as legally permissible, its striking down
as unconstitutional. It is equally well settled that
when provisions of the enactment do not embrace the true
intention of the legislature, it produces results which
are contrary to the object and purpose of the enactment.
It is contended on behalf of the petitioner that Section
31 of the Act presents a case of this nature. Is it,
however, proper for this Court, to supply words to the
statutory provision which is the function of the
Legislature?
11. A catena of judicial pronouncements can be
cited to contend for the position that courts shall not
readily infer casus omissus or supply the omission, for,
courts are expected to find out the intention of the
legislature by interpreting the language of the statutes.
To counter the above school of thought, learned counsel
for the petitioner placed reliance on a long line of
judicial pronouncements, foreign as well as Indian, to
canvass for the proposition that courts must adopt a
realistic approach in construing or interpreting
statutory provisions and need not hesitate to supply
words, if need be, so as to prevent patent injustice
resulting from inadvertant and unintentional omissions in
the provisions of the statute. The following passage
extracted from Maxwell on the Interpretation of Statutes,
Twelfth Edition throws light in this direction:
.SP 1
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“Where the language of a statute, in
its ordinary meaning and grammatical
construction, leads to a manifest
contradiction of the apparent purpose of the
enactment, or to some inconvenience or
absurdity which can hardly have been
intended, a construction may be put upon it
which modifies the meaning of the words and
even the structure of the sentence. This may
be done by departing from the rules of
grammar, by giving an unusual meaning to
particular words, or by rejecting them
altogether, on the ground that the
legislature could not possibly have intended
what its words signify, and that the
modifications made are mere corrections of
careless language and really give the true
meaning. Where the main object and intention
of a statute are clear, it must not be
reduced to a nullity by the draftman’s
unskilfulness or ignorance of the law, except
in a case of necessity, or the absolute
intractability of the language used. Lord
Reid has said that he prefers to see a
mistake on the part of the draftsman in doing
his revision rather than a deliberate attempt
to introduce an irrational rule: “the canons
of construction are not so rigid as to
prevent a realistic solution.””
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.SP 2
The illustrative cases that have been briefly dealt with
in page 229 of the same edition lend support to the
school of thought that courts will have occasionally and
for justifiable reasons, to fill omissions, though
rarely, in the statutory provisions attributable to
obvious oversights. In Tirath Singh v. Bachittar Singh@@
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& Others (AIR 1955 S.C. 830) the Supreme Court quoting@@
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the passage from Maxwell (supra) expressed the opinion
that it is a well established rule of interpretation. In
State of Madhya Pradesh v. M/s. Azad Bharat Finance Co.@@
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& another (AIR 1967 S.C. 276), interpreting Section 11@@
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of the Opium Act, 1878 (as applicable to M.P.), Supreme
Court referred to Tirath Singh’s case (supra) and stated
as follows:
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.SP 1
“According to Mr. Shroff, the truck would
have to be confiscated. It is well
recognised that if a statute leads to
absurdity, hardship or injustice, presumably
not intended, a construction may be put upon
it which modifies the meaning of the words,
and even the structure of the sentence.”
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.SP 2
Lord Denning in Seaford Court Estates, Ltd. v. Asher@@
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(1949 (2) All E.R. 155) expressed the view that the
principle laid down in Winchester Court Ltd. v. Miller@@
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((1944) 2 All E.R. 106) that
.SP 1
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“whenever a statute comes up for
consideration it must be remembered that
it is not within human powers to foresee
the manifold sets of facts which may
arise, and, even if it were, it is not
possible to provide for them in terms
free from all ambiguity. The English
language is not an instrument of
mathematical precision. Our literature
would be much the poorer if it were.
This is where the draftsmen of Acts of
Parliament have often been unfairly
criticised. A Judge, believing himself
to be fettered by the supposed rule that
he must look to the language and nothing
else, laments that the draftsmen have not
provided for this or that, or have been
guilty of some or other ambiguity. It
would certainly save the judges trouble
if Acts of Parliament were drafted with
divine prescience and perfect clarity.
In the absence of it, when a defect
appears, a judge cannot simply fold his
hands and blame the draftsman. He must
set to work on the constructive task of
finding the intention of Parliament, and
he must do this not only from the
language of the statute, but also from a
consideration of the social conditions
which gave rise to it and of the mischief
which it was passed to remedy, and then
he must supplement the written word so as
to give “force and life” to the intention
of the legislature”.
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.SP 2
Lord Denning then held:
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.SP 1
“………..put into homely metaphor it
is this: A judge should ask himself the
question how, if the makers of the Act
had themselves come across this ruck in
the texture of it, they would have
straightened it out? He must then do as
they would have done. A judge must not
alter the material of which the Act is
woven, but he can and should iron out the
creases.”
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.SP 2
12. In State of Bihar v. Dr. Asis Kumar@@
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Mukherjee {(1975) 2 SCR 894} a Bench of 3 Judges of the@@
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Supreme Court speaking through Krishna Iyer, J. referred
to the principle of statutory interpretation given by
Denning, L.J. candidly said that the rule of
interpretation adopted by the Supreme Court was by taking
cue from the observations made in Seaford Court Estates
Limited (supra).
13. In this context it is only proper to refer
to another three member bench decision of the Apex Court
decided in the same year, where Untwalia, J. speaking
for the Bench found favour with the rule of construction
that a statute may not be extended to meet a case for
which provision has clearly and undoubtedly not been
made. (See Dhoom Singh v. Prakash Chandra Sethi (AIR@@
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1975 SC 1012). The above view was taken by the Supreme
Court while construing the provisions of Sections 81, 82
and 117 of the Representation of the People Act, 1951.
Supreme Court repelled the right of an elector to
intervene and substantiate allegations of fraud and
collusion between the election petitioner and the
returned candidate even in a case where as a result of
the fraud and collusion between the election petitioner
and the returned candidate the High Court was
fraudulently misled to act under Section 86(1) of the
Representation of the People Act. In the opinion of the
Supreme Court if there be any necessity of avoiding any
such situation it is for the legislature to intervene and
make clear and express provision of law for the purpose.
14. Omissions in a statute, cannot, as a general
rule be supplied by construction, is a well accepted rule
of interpretation. It is ture that this general
principle is not without exception. Since the primary
purpose of construction is to ascertain the intention of
the Legislature, such intention should be given effect,
even if it necessitates the supplying of omissions,
provided, of course, that this effectuates the
legislative intention. There are decisions indicating a
trend in this direction as well. Since the primary
source of legislative intend is the language of the
statute, judicial thinking leans more in favour of the
former school of thought. The following passage quoted
below from Crawford’s Interpretation of Laws, (Page 271,
1989 Reprint) would give a clear idea about the view
expressed by Courts in regard to casus omissus:
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.SP 1
“Obviously the reason back of the
rule of casus omissus is found in the
principle that if the court attempts to
supply that which the legislature has
omitted, there is considerable danger
that it may invade the legislative field.
It is not easy to determine whether the
omission was intentional or not. And
even where it was inadvertent, an attempt
to supply the omission, by including the
omitted case, generally would operate to
add to the statute a meaning not intended
by the legislature, for, how can it be
said that the lawmakers intended to
include something omitted?”
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.SP 2
It is, of course, pertinent to note that the above
passage concludes as follows:
……………L…….T…….T…….T…….T…….J
.SP 1
“It would seem that the only time the
omitted case might be included within the
statute’s operation, would be when the
legislature intended to include it, but
actually failed to use language which
would, on its face, cover the omitted
case. The inclusion would then be
justified, if from the various intrinsic
and extrinsic aids, the intent of the
legislature to incorporate the omitted
case, could be ascertained with a
reasonable degree of certainty.”
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.SP 2
15. Supreme Court had occasion to consider the
relevance of the above rule of construction in
Commissioner of Income Tax, Central Calcutta v. National@@
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Taj Traders (AIR 1980 S.C 485) wherein it is held, vide@@
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paragraphg 10 of the judgment, that two principles of
construction — one relating to casus omissus and the
other in regard to reading the statute as a whole appear
to be well settled. Quoting from Maxwell on
Interpretation of Statutes (12 Edn.) at page 33, Supreme
Court highlighted the importance of the two rules of
interpretation. (1) Omissions not to be inferred and (2)
a statute is to be read as a whole. In the latter half
of the same paragraph the following is stated:
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.SP 1
“In other words, under the first
principle a casus omissus cannot be
supplied by the Court except in the case
of clear necessity and when reason for it
is found in the four corners of the
statute itself but at the same time a
casus omissus should not be readily
inferred and for that purpose all the
parts of a statute or section must be
construed together and every clause of a
section should be construed with
reference to the context and other
clauses thereof so that the construction
to be put on a particular provision makes
a consistent enactment of the whole
statute. This would be more so if
literal construction of a particular
clause leads to manifestly absurd or
anomalous results which could not have
been intended by the Legislature. “An
intention to produce an unreasonable
result”, said Danckwerts L.J. in
Artemiou v. Procopiou ((1966) 1 QB 878),
“is not to be imputed to a statute if
there is some other construction
available”. Where to apply words
literally would “defeat the obvious
intention of the legislation and produce
a wholly unreasonable result” we must “do
some violence to the words” and so
achieve that obvious intention and
produce a rational construction. (Per
Lord Reid in Luke v. I.R.C., 1963 AC 557
where at p. 577 he also observed: “this
is not a new problem, though our standard
of drafting is such that it rarely
emerges”.
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.SP 2
In B. Prabhakar Rao v. State of Andhra Pradesh (AIR@@
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1986 S.C. 210) the Apex Court held that legislations to
remedy wrongs ought not to exclude from their purview
persons, a few of the wronged, unless the situation and
the circumstances make the redressal of the wrong, in
their case, either impossible or so detrimental to the
public interest that the mischief of the remedy outweighs
the mischief sought to be remedied. One of the arguments
raised before the Supreme Court in the above case was
that it was not open to the court to give retrospectivity
to a legislation to which the lelgislature plainly and
expressly refused to give retrospectivity. While dealing
with that contention, the Supreme Court stated, inter
alia, as follows:
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.SP 1
“We must further remember, quite apart
from any question of retrospectivity,
that, unlike in the United Kingdom here
in India we have a written Constitution
which confers justiciable fundamental
rights and so the very refusal to make an
Act retrospetive or the non-application
of the Act with reference to a date or to
an event that took place before the
enactment may, by itself, create an
impermissible classification justifying
the striking down of the
non-retroactivity or non-application
clause, as offending the fundamental
right to equality before the law and the
equal protection of the laws.”
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.SP 2
In State of Karnataka v. M/s. Hansa Corporation@@
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((1980)4 SCC 697) the Apex Court quoted with approval the
statement of law enunciated in Seaford Court Estates Ltd.
(supra) and held that
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.SP 1
“where one has to look at a section not
very well drafted but the object behind
the legislation and the purpose of
enacting the same is clearly discernible,
the court cannot hold its hand and blame
the draftsman and chart an easy course of
striking down the statute. In such a
situation the court should be guided by a
creative approach to ascertain what was
intended to be done by the legislature in
enacting the legislation and so construe
it as to give force and life to the
intention of the legislature.”
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.SP 2
16. It cannot, however, be forgotten that the
golden rule of interpretation of statute is that when the
language is explicit, its consequences are for the
legislature and not for the Court to consider. If it
appears to the court that words which ought to have been
there in the statutes have been omitted by the
legislature, it must be supposed that the omission was
intentional. Even if the omission is obvious, casus
omissus can in no cases be supplied by the process of
interpretation. The following passage from Craies on
Statute Law, VII Edition at Page 71 reflects the judicial
thinking that held the field in England in the 18th and
19th centuries:
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.SP 1
“In Jones v. Smart {(1785) 1 T.R. 44} the@@
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question was whether a doctor of physic in a
Scottish university was qualified to kill
game under 22 & 23 Car. 2, c. 25, which
enacted “that every person….. other than
the son of an esquire, or other person of
higher degree ….. is declared to be a
person by the law of this realm not allowed
to have any guns …. for taking game.”
Amongst other arguments for proving that a
Scottish doctor of physic was qualified, it
was contended that the legislature could not
have intended to exclude such a person. “Be
that as it may,” said Buller J. in his
judgment, “we are bound to take the Act of
Parliament as they have made it; a casus
omissus can in no case be supplied by a
court of law, for that would be to make
laws.” As a general rule, as Blackburn J.
pointed out in R. v. Cleworth, {(1864) 4 B@@
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& S. 927} if it appears that the class or
thing which it is sought to bring within the
Act (under consideration) was known to the
legislature at the time when the Act was
passed, and that class is omitted, “it must
be supposed to have been omitted
intentionally.” It makes no difference if it
appears that the omission on the part of the
legislature was a mere oversight, and that
without doubt the Act would have been drawn
otherwise had the attention of the
legislature been directed to the oversight
at the time the Act was under discussion.”
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.SP 2
Privy Council, in Kumar Kamalaranjan Roy v. Secretary of@@
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State (AIR 1938 P.C. 281 at page 283), while construing@@
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the provisions of Section 114 (1) and (3) of the Bengal
Tenancy Act, 1885, held as follows:
……………L…….T…….T…….T…….T…….T…J
.SP 1
“All these provisions seem quite inconsistent
with a shifting liability passing from the
certificate debtor to any new landlord to
whom the estate may pass. The fact seems to
be that the various Acts have provided for
all contingencies as to transmission and
devolution of the estate, but have not
provided for the special case in which the
patni estate is not transmitted or devolved,
but annulled and determined. It may be that
there is here a casus omissus, but if so,
that omission can only be supplied by statute
or statutory action. The Court cannot put
into the Act words which are not expressed,
and which cannot reasonably be implied on any
recognized principles of construction. That
would be a work of legislation, not of
construction, and outside the province of the
Court.”
……..L…….T…….T…….T…….T…….T…….T…….J
.SP 2
In Sm. Hira Devi v. District Board, Shahjahanpur (AIR@@
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1952 SC 362) the Apex Court held:
……………L…….T…….T…….T…….T…….T….J
.SP 1
“It was unfortunate that when the Legislature
came to amend the old s. 71 of the Act it
forgot to amend s. 90 in conformity with the
amendment of s. 71. But this lacuna cannot
be supplied by any such liberal construction
as the High Court sought to put upon the
expression “orders of any authority whose
sanction is necessary.” No doubt it is the
duty of the Court to try and harmonise the
various provisions of an Act passed by the
Legislature. But it is certainly not the duty
of the Court to stretch the words used by the
Legislature to fill in gaps or omissions in
the provisions of an Act.”
.SP 2
……..L…….T…….T…….T…….T…….T…….T…….J
This proposition has been found favour in Jeewanlal Ltd.@@
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v. Appellate Authority ((1984) 4 SCC 356), Indian@@
CCCCCCCCCCCCCCCCCCCC CCCCCC
Administrative Service (SCS) Assn. v. Union of India@@
CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC CCCCCCCCCCCCCC
(1993 Suppl. (1) SCC 730), Mohan Kumar Singhania v.@@
CCCCCCCCCCCCCCCCCCCCCCC
Union of India (1992 Suppl. (1) SCC 59) and State of@@
CCCCCCCCCCCCCCC CCCCCCCC
Kerala v. Dr. Sarvothama Prabhu ((1999) 2 SCC 622). In@@
CCCCCC CCCCCCCCCCCCCCCCCCCCCC
fact, the Apex Court has held in the above judgments that
if the words are unambiguous, clear and explicit, there
need be no recourse to any rules of interpretation. In
this context reference can be made to judgment in
Surendran v. Mavelikara Primary Co-op. Agrl. & R.D.@@
CCCCCCCCC CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
Bank Ltd. (2005 (4) KLT 619 (DB)) holding the view that@@
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when the language of the statute is plain and
unambiguous, the court must give effect to it, whatever
may be the consequence.
17. In State of Gujarat & Ors. v. Dilipbhai@@
CCCCCCCCCCCCCCCCCCCCCCC CCCCCCCCC
Nathjibhai Patel & anr. {J.T. 1998(2) S.C. 253} the@@
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Apex Court quoted with approval the observation in
Crawford v. Spooner {1846(6) Moore P.C. 1) that courts@@
CCCCCCCC CCCCCCC
cannot aid the Legislatures’ defective phrasing of an
Act, we cannot add or amend, and by construction make up
deficiencies which are left there. In State of Kerala v.@@
CCCCCCCCCCCCCCC
Neelakandan Nair (I.L.R. 2005 (3) Kerala 611) the Apex@@
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Court while examining the scope of Rule 62 of Chapter XIV
A of the Kerala Education Rules and Rule 60 (c) of Part
I, Kerala Service Rules, made the following observations
with particular reference to casus omissus:
……………L…….T…….T…….T…….T…….J
.SP 1
“It is then true that, “when the
words of a law extend not to an
inconvenience rarely happening, but due
to those which often happen, it is good
reason not to strain the words further
than they reach, by saying it is casus
omissus, and that the law intended quae
frequentius accidunt”. “But”, on the
other hand, “it is no reason, when the
words of a law do enough extend to an
inconvenience seldom happening, that they
should not extend to it as well as if it
happened more frequently, because it
happens but seldom ” (See Fenton v.@@
CCCCCC
Hampton ((1858) XI Moore, P.C. 347). A@@
CCCCCCC
casus omissus ought not to be created by
interpretation, save in some case of
strong necessity. Where, however, a
casus omissus does really occur, either
through the inadvertence of the
legislature, or on the principle quod
semel aut bis existit proetereunt
legislators, the rule is that the
particular case, thus left unprovided
for, must be disposed of according to the
law as it existed before such
statute–Casus omissus et oblivioni datus
dispositioni communis juris relinquitur,
“a casus omissus,” observed Buller, J.
in Jones v. Smart (ITR 52), “can in no@@
CCCCC CCCCC
case be supplied by a Court of law, for
that would be to make laws.”
The golden rule for construing
wills, statutes, and, in fact, all
written instruments has been thus stated:
“The grammatical and ordinary sense of
the words is to be adhered to unless that
would lead to some absurdity or some
repugnance or inconsistency with the rest
of the instrument, in which case the
grammatical and ordinary sense of the
words may be modified, so as to avoid
that absurdity and inconsistency, but no
further” (See Grey v. Pearson (1857@@
CCCC CCCCCCC
(6)H.L. Cas. 61). The latter part of
this “golden rule” must, however, be
applied with much caution, “if”, remarked
Jervis, C.J., “the precise words used are
plain and unambiguous in our Judgment, we
are bound to construe them in their
ordinary sense, even though it lead, in
our view of the case, to an absurdity or
manifest injustice. Words may be
modified or varied where their import is
doubtful or obscure. But we assume the
functions of legislators when we depart
from the ordinary meaning of the precise
words used, merely because we see, or
fancy we see, an absurdity or manifest
injustice from an adherence to their
literal meaning” (See Abley v. Dale (11@@
CCCCC CCCC
C.B. 378).”
……..L…….T…….T…….T…….T…….T…….T…….J
.SP 2
In the next paragraph of the above judgment the Apex
Court referred to the maxim “Ad ea quae frequentius
accidunt jura adaptantur” (The laws are adapted to those
cases which more frequently occur).
18. Keeping in mind the above principles of law,
let us read Section 31 of the Act once again. It is
explicitly clear that sub-section (1) of Section 31
speaks only about suit or other proceeding pending before
any court, the proviso to the above sub-section speaks
about appeal pending before any court, sub-section (2)
speaks only about suit or other proceeding transferred
from any court and clause (a) of sub-section (2) also
speaks only about the court. Absence of the words “other
authority” in more than one place in Section 31 is so
conspicuous that supplying the said words in sub-section
(1) of Section 31, the proviso to sub-section (1),
sub-section (2) of Section 31 as also clause (a) of the
said sub-section would in effect amount to substantial
alterations and rewriting the section. It will not fall
within the expression “ironing out the creases.” Such
rewriting is the function of the legislature. Section 31
when read in isolation does not raise any problem;
neither ambiguity nor irrationality. Problems arise only
when Section 31 is read along with Sections 17 and 18 in
the background of the statement of objects and reasons
which led to the passing of that enactment. In this view
of the matter I am unable to accept the contention of
Shri. Easwar that Section 31 of the Act shall be read by
supplying the words “other authority”, after the word
`court’ in sub-section (1) and the proviso to Section 31
of the Act.
19. The next question for consideration is
whether the dismissal of the suit (arbitration case)
instead of returning the plaint for presentation before
the Tribunal has led to miscarriage of justice and if so,
whether appropriate reliefs can be granted to the
petitioner in the facts and circumstances of this case.
Learned counsel for the petitoner drew my attention to
Order VII, Rule 10 of the Code of Civil Procedure,
decisions of the Supreme Court in Athmananthaswami@@
CCCCCCCCCCCCCCCC
Devasthanam v. K. Gopalaswami Ayyangar (AIR 1965 SC@@
CCCCCCCCCCC CCCCCCCCCCCCCCCCCCCCCCCCCCC
338) and M/s. Air Tech India v. Asst. Commissioner,@@
CCCCCCCCCCCCCCCCCCCC CCCCCCCCCCCCCCCCCCCCCC
Comml. Taxes & Ors. (JT 1999 (10) SC 362) and contended@@
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that the legislative policy underlying Order VII, Rule 10
C.P.C. can be made applicable to suits filed before the
Registrar dealing with cases under Section 69 of the
Societies Act. Respondents resisted the above line of
argument pointing out the absence of express provisions
in the Societies Act or in the Rules enabling the
Arbitrator to return the plaint for presentation before
the proper forum. It was also pointed out that the above
decisions of the Apex Court have not laid down any
principle that the legislative policy behind Order VII
Rule 10 can be extended to any other adjudicating forum
other than the courts coming under C.P.C. Counsel for
the petitioner, in reply, asked a counter question to be
answered by the respondents and submitted that there is
no express provision to dismiss the case either, when
jurisdiction is taken away by operation of law to proceed
with a pending matter that the order was passed without
the authority. He contended that there is no express
provision to dismiss the case in the event of ouster of
jurisdiction.
20. On an anxious consideration of the rival
contentions of the counsel on either side, I feel, in the
facts and circumstances of this case, that return of the
plaint alone would meet the ends of justice. No doubt,
Order VII, Rule 10 C.P.C is not, as such, attracted to a
situation like this. Petitioner invoked Section 69 of
the Societies Act and filed the suit before the proper
forum as matters stood on the date of filing of the suit.
The Arbitrator upon taking cognizance of the matter
issued summons to the opposite parties and called upon
them to file written statement. While so, the Act came
into force and the Tribunal was constituted. The
Arbitrator has been divested of his power to proceed with
the matter by the force of Section 18 of the Act that
intervened. The impugned order was passed taking note of
the fact that the Tribunal under the Act has been
constituted and the petitioner has to proceed with his
case further, before the said Tribunal. As rightly
contended by counsel for the petitioner, in a situation
like this, there is neither provision for dismissal of
the suit nor for return of the plaint. If the plaint is
returned for presentation before the forum having
jurisdiction, further proceedings before that forum could
be initiated from the stage at which the matter stood
before the forum which lost the jurisdiction. On the
other hand, if the suit is dismissed in the light of
Section 18 of the Act, the plaintiff/petitioner will have
to start everything fresh before the forum vested with
the jurisdiction. Such a course of action would create
new hurdles such as limitation to approach the Tribunal,
payment of court fees and other fees prescribed for
entertaining the suit by the Tribunal, etc., for the
plaintiff. Plaintiff is made to face such problems for
no fault of his. Such problems are the direct result of
the provisions of the Act. Hence even in the absence of
a statutory provision in the nature of Order VII Rule 10,
C.P.C. the principle of law coupled with justice and
equity embodied in the aforesaid statutory provision has
to be stretched to other areas of adjudication and made
applicable to situations where the adjudicating authority
finds that it has no jurisdiction to entertain a suit or
to proceed with one which has already been entertained,
but cannot be disposed of on merits for want of
jurisdiction as a result of ouster of jurisdiction or
other intervening factors like the operation of law.
21. In the result, though I am inclined to
uphold the decision of the 4th respondent rejecting the
request of the petitioner to transfer the arbitration
case to the Tribunal, I hold that the dismissal of the
arbitration case warrants interference under Article 226
of the Constitution of India to undo the injustice. I
hold that the arbitration case ought to have been
returned to the petitioner/plaintiff for proper
presentation before the appropriate Tribunal. Ext. P4
order of the 4th respondent to the extent it dismissed
the arbitration case is set aside. There shall be a
direction to the 4th respondent that the plaint shall be
returned to the petitioner for presentation before the
proper forum within three weeks from the date of return.
Upon presentation of the plaint as aforesaid, the
Tribunal having jurisdiction shall proceed with the case
in accordance with law. Original petition is disposed of
as above. There will be no order as to costs.
(K.K. DENESAN, JUDGE)
jan/-
.PA
((HDR 0
))
.HE 2
.SP 1
.JN
K.K. DENESAN, J.
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O.P. No. 22861 OF 1999 V
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JUDGMENT
23rd December, 2005