ORDER
P.S. Narayana, J.
1. Heard Sri M Narender Reddy.
2. The petitioner, State Bank of India, Overseas Branch, Visakhapatnam represented by its Assistant General Manager filed the present transfer CMP under Section 24 of the Code of Civil Procedure (herein after referred to as ‘Code’ in short for the purpose of convenience) praying for transfer of the suit O.S. No. 126 of 1999 from the file of the I Additional District Judge, Visakhapatnam to the Hon’ble Debts Recovery Tribunal, Visakhapatnam for disposal of the same along with OA No. 77 of 2002 and pass such other suitable orders.
3. It is stated that the 1st respondent Company had availed loan facilities with limits of Rs. 375 lakhs from the petitioner Bank after executing the security documents from time to time. As the 1st respondent Company committed default in repaying the loan amounts together with interest, the petitioner Bank filed OA No. 137 of 2000 on 24-2-2000 against the 1st respondent Company and the guarantors before the Debts Recovery Tribunal, Hyderabad for recovery of a debt of Rs. 4,38,45,650-64 together with future interest and costs. After constitution of the Tribunal at Visakhapatnam, the said case OA No. 137 of 2000 was transferred to the Tribunal at Visakhapatnam and the same was renumbered as OA No. 77 of 2002 and the case is pending disposal before the Hon’ble Debts Recovery Tribunal, Visakhapatnam and presently the case is posted to 234-2003 for cross-examining the witness of the petitioner Bank. It is further stated that the 1st respondent Company filed O.S. No. 126 of 1999 on the file of the I Additional District Judge, Visakhapatnam against the petitioner and respondents 2 to 6 and the 1st respondent Company prayed for a decree against the petitioner to disburse the fund based working capital of a sum of Rs. 262 lakhs sanctioned to the 1st respondent on 10-10-1997 under a common consortium agreement to share the working capital and also for a decree for a declaration that the 1st respondent Company is not liable to pay any interest on term loans lent by the petitioner and the respondents 4 to 6. It is further stated that inasmuch as the documents are common in the facts and circumstances which had been explained in detail in the affidavit filed in support of the transfer CMP in paras 3 to 5, the relief of transfer is prayed for.
4. The short question involved in the present transfer CMP is whether the relief prayed for in the present transfer CMP, be granted under Section 24 of the Code, in other words whether this transfer CMP under Section 24 of the Code is maintainable.
5. No doubt, Sri Narender Reddy, the
learned Counsel representing the petitioner
had brought to my notice that already
another counter-claim was filed and apart
from it, the present suit relating to which the transfer is prayed for also is in the nature of the counter-claim only and hence in the fitness of things the relief has to be granted despite the other technicalities which may be involved in the matter otherwise. The factual matrix in brief had been narrated above. OA No. 77 of 2002 is pending on the file of the Debts Recovery Tribunal, Visakhapatnam and O.S. No. 126 of 1999 at present is pending on the file of the I Additional District Judge, Visakhapatnam. OA No. 77 of 2002 pending on the file of the Debts Recovery Tribunal, Visakhapatnam is governed by the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as ‘Act’ in short for the purpose of convenience).
6. Section 2(o) of the Act defines Tribunal as “Tribunal” means the Tribunal established under Sub-section (1) of Section 3.
7. Section 3 of the Act dealing with Establishment of Tribunal reads as follows:
(1) The Central Government shall, by notification, establish one or more Tribunals to be known as the Debts Recovery Tribunal, to exercise the jurisdiction, powers and authority conferred on such Tribunal by or under this Act.
(2) The Central Government shall also specify, in the notification referred to in Sub-section (1), the areas within which the Tribunal may exercise jurisdiction for entertaining and deciding the applications filed before it.
8. While dealing with the aspect of the Tribunal, in my commentary on, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, 4th edition, I had stated at pages 15 and 33 as hereunder:
“Tribunal – Tribunal in its ordinary sense may mean a seat or a bench upon which a Judge or Judges sit in a Court. The expression Tribunal in Article 136 of the Constitution of India does not mean the same thing as Court but includes within its ambit, all adjudicating bodies provided they are constituted by the State and are invested with judicial as distinguished from administrative or executive functions.
In deciding whether an authority required to act judicially when dealing with matters affecting rights of citizens may be regarded as a Tribunal though not a Court the principal incident is the investure of the trappings of a Court such as
1. authority to determine matters in case initiated by parties
2. sitting in public.
3. power to compel attendance of witnesses and to examine them on oath.
4. duty to follow fundamental rules of evidence.
5. provisions for imposing sanctions by way of ‘imprisonment fine’, damages or mandatory or prohibitory orders to enforce obedience to their commands.”
“Tribunal is an adjudicating authority with judicial powers which is not a Court. Tribunal is not same thing as Court but it includes all adjudicating bodies provided they are constituted by the State and are vested with judicial as distinguished from purely administrative and executive functions.”
9. Section 17 of the Act deals with jurisdiction, powers and authority of Tribunals.
10. Section 18 of the Act dealing with Bar of jurisdiction specifies that 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.
11. Section 19 of the Act deals with
Application to the Tribunals.
12. It may also be relevant to have a look at Section 22 of the said Act for the present purpose. The said provision deals with Procedure and powers of the Tribunal and the Appellate Tribunal and the provision reads as follows:
1. The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings.
2. The Tribunal and Appellate Tribunal shall have, for the purpose of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely:
a. summoning and enforcing the attendance of any person and examining him in oath;
b. requiring the discovery and production of documents;
c. receiving evidence on affidavits;
d. issuing commissions for the examination of witnesses or documents;
e. reviewing its decisions;
f. dismissing an application for default or deciding it ex parts;
g. setting aside any order of dismissal of any application for default or any order passed by it ex parte;
h. any other matter which may be prescribed.
3. Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196, of the Indian Penal Code (45 of 1860) and the Tribunal or the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
13. From a reading of Section 22 of the Act, it is clear that the procedure laid down by the Code is not made applicable in the case of Tribunals governed by the aforesaid Act.
14. In Gadde Venkateswara Rao v. K. Venkata Rao, , wherein it was held that the Election Court is not empowered to grant a temporary injunction under Order 39 Rule 1 and Section 151 of the Code of Civil Procedure pending disposal of the election petition.
15. The commencement of the Code itself is as follows:
“An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature”.
16. Section 3 of the Code dealing with Subordination of Courts reads as hereunder:
“For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.”
17. Likewise Section 4 of the Code dealing with Savings reads as follows:
(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition contained in Sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.
Section 24 of the Code reads as hereunder:
1. On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-
a. transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
b. withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
i. try or dispose of the same; or
ii. transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
iii. retransfer the same for trial or disposal to the Court from which it was withdrawn.
2. Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
3. For the purposes of this section,–
4. The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
5. A suit or proceeding may be transferred under this section from Court which has no jurisdictions to try it.
18. From a careful reading of all these provisions, it is clear that a Tribunal like a Debts Recovery Tribunal will not fall within the meaning of Section 24 of the Code, especially, in the light of the specific provisions of the special enactment. Hence, I have no hesitation in holding that Section 24 of the Code of Civil Procedure is not applicable to the present case. It may be that on merits the petitioner may be having an excellent case. But, however, inasmuch as in the light of the opinion expressed by me the transfer CMP is not maintainable. I am left with no other option, except to negative the relief on the ground of maintainability. But, however at this stage, the learned Counsel for the petitioner representing the State Bank of India, Overseas Branch, Visakhapatnam had made a request that inasmuch as, it is a fit matter to be decided on merits permission can be granted to convert the proceeding into one under Article 227 of the Constitution of India. In the light of the request made by him and especially in the light of the peculiar facts and circumstances, which had been narrated in detail by me above, I am inclined to permit the learned Counsel for the petitioner to convert the proceeding into one under Article 227 of the Constitution of India.
19. Let the office list the matter before the appropriate bench after other necessary formalities are complied with by the learned Counsel.
20. Post on 28-4-2003 before the appropriate Bench.