{"id":214565,"date":"2005-12-23T00:00:00","date_gmt":"2005-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-bank-vs-ekm-dist-motor-transport-on-23-december-2005"},"modified":"2015-10-09T12:40:27","modified_gmt":"2015-10-09T07:10:27","slug":"indian-bank-vs-ekm-dist-motor-transport-on-23-december-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-bank-vs-ekm-dist-motor-transport-on-23-december-2005","title":{"rendered":"Indian Bank vs Ekm Dist.Motor Transport … on 23 December, 2005"},"content":{"rendered":"
Kerala High Court<\/div>\n
Indian Bank vs Ekm Dist.Motor Transport … on 23 December, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP No. 22861 of 1999\n\n\n1. INDIAN BANK                             \n                      ...  Petitioner \n\n                        Vs\n\n\n1. EKM DIST.MOTOR TRANSPORT CO-OP.SOCIETY  \n                       ...       Respondent\n\n                For Petitioner  :SRI.E.SUBRAMANI                         \n\n                For Respondent  :SRI.C.S.MANILAL                         \nThe Hon'ble MR. Justice K.K.DENESAN                     \n\n Dated :     23\/12\/2005\n O R D E R\n<\/pre>\n
         K.K. DENESAN, J.@@
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\n        j
\n         O.P. No. 22861 OF 1999 V@@
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\n        j
\n         @@
\n        j
\n         Dated this the 23rd December, 2005@@
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\n        j
\n         J U D G M E N T@@
\n        jCCCCCCCCCCCCCCC<\/p>\n
.PL 55
\n.SP 2
\n((HDR 0
\n\tOP 22861\/99\t\t-#-\n<\/p>\n
))
\n.HE 1
\n        \tWhether a suit or other  proceeding  filed  by  a
\n        bank  or financial institution as defined in the Recovery
\n        of Debts Due to Banks  and  Financial  Institutions  Act,
\n        1993  (for short the Act) and pending adjudication before
\n        the Registrar of Co-operative Societies under the  Kerala
\n        Co-operative Societies Act, 1969 (hereinafter referred to
\n        as   the   Societies   Act)   would  stand  automatically
\n        transferred to the Recovery  Tribunal  constituted  under
\n        the Act?  If not, dismissal of the suit by the Registrar,
\n        instead of returning the same for presentation before the
\n        Tribunal,  is  not  improper  resulting in miscarriage of
\n        justice?  These are the questions  for  consideration  in
\n        this  Original  Petition  filed  in  the  backdrop of the
\n        following facts.\n<\/p>\n
        \t2.   Petitioner  is  a  nationalised   bank   and
\n        respondent No.    1  is a co-operative society registered
\n        under the Societies Act.  According  to  the  petitioner,
\n        respondent No.    1  borrowed a certain sum of money from
\n        the petitioner-bank,   respondent   No.      2   executed
\n        agreements  of  guarantees  in  favour of the petitioner,
\n        agreeing among other, to repay the amount found due  from
\n        the 1st respondent and an amount of Rs.76,10,357\/- became
\n        due  in  the account of the 1st respondent as it stood on
\n        6-6-1996.  Since respondents 1 and 2 failed to repay  the
\n        amount   despite   notices   issued,   petitioner   filed
\n        Arbitration Case No.  258 of 1996 on 7-6-1996 before  the
\n        Joint  Registrar  of  Co-operative  Societies,  Ernakulam
\n        under Section 69 of the Societies Act.  Respondent No.  3
\n        as  per  proceedings  dated  18-7-1996  directed  th  4th
\n        reespondent- Asst.    Registrar of Co-operative Societies
\n        (hereinafter referred to as the Arbitrator) to  hear  and
\n        dispose of ARC No.  258 of 1996.\n<\/p>\n
        \t3.   The  Debts  Recovery  Tribunal  (for  short,
\n        Tribunal)  having  jurisdiction  to entertain and try the
\n        above suit was established with  effect  from  4-11-1996.
\n        Noticing  the  bar  of  jurisdiction  under  the Act, the
\n        Arbitrator held that it ceased to  have  jurisdiction  to
\n        try and  decide  the  dispute involved in ARC No.  258\/96
\n        with effect from 4-11-1996 and that the Tribunal  is  the
\n        competent authority  to  resolve the dispute.  Petitioner
\n        requested the Arbitrator to  transfer  the  case  to  the
\n        Tribunal  or to return the plaint for presentation before
\n        the Tribunal.  The Arbitrator, however, held that he  has
\n        no  power  to transfer the case to the Tribunal under the
\n        Act or  under  the  Societies  Act.    According  to  the
\n        Arbitrator,  Section  31 of the Act provides for transfer
\n        of  cases  pending  before  the  Courts  only   and   the
\n        Arbitrator  under  Section  69 of the Societies Act being
\n        not a court, the only course open to it  was  to  dismiss
\n        the case.  Accordingly,  A.R.C.    No.    258 of 1996 was
\n        dismissed as per Ext.   P4  order  dated  21-7-1999  with
\n        liberty  to  the  petitioner  to  file  a suit before the
\n        Tribunal at Chennai.  Feeling aggrieved, petitioner filed
\n        this O.P.  to quash Ext.  P4 order to the extent the  4th
\n        respondent has dismissed  A.R.C.  No.  258 of 1996 and to
\n        direct  the  4th  respondent  to   transfer   the   above
\n        arbitration  case to the Tribunal under the Act or in the
\n        alternative  to  return  the  arbitration  case  to   the
\n        petitioner for proper presentation before the appropriate
\n        forum, within a time to be granted by the 4th respondent.\n<\/p>\n
        \t4.   The  arbitration  case was filed on 7-6-1996
\n        under Section  69  of  the  Societies  Act.     The   1st
\n        respondent is a co-operative society registered under the
\n        Societies Act.     Hence,  as  matters  stood  then,  the
\n        Arbitrator  under  the  Societies  Act  alone   had   the
\n        jurisdiction   to  adjudicate  and  resolve  the  dispute
\n        between the petitioner and the first respondent.  Section
\n        100 of the Societies Act says that no  civil  or  revenue
\n        court  shall  have  jurisdiction in respect of any matter
\n        for which provision is made in the said Act.  The  plaint
\n        submitted  by  the  petitioner  was  taken on file by the
\n        Arbitrator as A.R.C.  No.  258 of 1996 and was posted for
\n        hearing   on   23-4-1997,   14-5-1997   and    21-6-1997.
\n        Thereafter,  there  was  no posting due to the absence of
\n        the 1st defendant.  Petitioner and the 2nd  defendant  in
\n        the arbitration case were present on the dates of posting
\n        of the  case.   While so, it was brought to the notice of
\n        the Arbitrator that the provisions of the Act  have  been
\n        made  applicable  to  the State of Kerala by constituting
\n        appropriate tribunal with effect from November, 4,  1996,
\n        the appointed  day under Section 2(c) of the Act.  Though
\n        the petitioner requested that the arbitration case may be
\n        transferred to the Tribunal, the Arbitrator did not  take
\n        any decision  for  quite some time.  Since the matter was
\n        kept pending, petitioner filed  O.P.    No.    16186\/1999
\n        before this Court.  O.P.  No.  16186 of 1999 was disposed
\n        of  directing the Arbitrator to take appropriate decision
\n        within a time frame.  It was thereafter, Ext.   P4  order
\n        was  passed on 21-7-1999 and the same was communicated to
\n        the petitoner as per Ext.  P3 letter dated 27-7-1999.\n<\/p>\n
        \t5.  Shri.  S.  Easwaran, learned counsel for  the
\n        petitoner raised,  mainly,  two contentions.  (1) For the
\n        purpose  of  transfer  of   pending   suits   and   other
\n        proceedings  to the Tribunal having jurisdiction, Section
\n        31 of the Act shall be so construed as to include  within
\n        its  purview,  not  only  suits  and  proceedings pending
\n        before  courts  but  also  those  pending  before   other
\n        authorities  as  on  the date of establishment of the Act
\n        and (2) The Arbitrator ought not to have dismissed A.R.C.
\n        No.  258 of 1996 on the ground of ouster of jurisdiction,
\n        but returned  the  plaint  for  presentation  before  the
\n        appropriate  forum, even assuming that the case could not
\n        have been transferred to the Tribunal  constituted  under
\n        the Act.\n<\/p>\n
        \t6.  Per contra, it was submitted on behalf of the
\n        respondents  that   the   Arbitrator   ceased   to   have
\n        jurisdiction  to decide the case in the light of Sections
\n        17 and 18 of the Act and in the absence of  any  specific
\n        provision in the Act to transfer the cases pending before
\n        other  authorities  like  the Arbitrator or to return the
\n        plaint to  the  plaintiff  for  presentation  before  the
\n        appropriate  forum,  the  only  course  open to it was to
\n        dismiss the case.\n<\/p>\n
        \t7.   The  Recovery  of  Debts  Due  to  Banks and
\n        Financial Institutions Act, 1993 (51\/93) came into  force
\n        on 24-6-1993.      Section   3  of  the  Act  deals  with
\n        establishment of Tribunals.   Section  2(c)  of  the  Act
\n        speaks about  `appointed  day’.    As far as this case is
\n        concerned the appointed day is 4-11-1996.    The  subject
\n        matter of  ARC  No.  258 of 1996 comes within the purview
\n        of the Act.  On and from 4-11-1996  the  Tribunal  having
\n        territorial jurisdiction over this State is the competent
\n        forum  to  adjudicate  and decide the dispute between the
\n        petitioner on the one hand and respondents 1 and 2 on the
\n        other.  Section 17 of the Act mandates that on  and  from
\n        the   appointed   day   Tribunal   alone  will  have  the
\n        jurisdiction,  powers  and  authority  to  entertain  and
\n        decide   applications   from   the  banks  and  financial
\n        institutions for recovery of debts due to such banks  and
\n        financial institutions.    Section  18  of  the Act which
\n        deals with bar of jurisdiction reads as follows:
\n……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               \t“18.   Bar  of  Jurisdiction.–On
\n               and from the appointed day, no  court  or
\n               other   authority   shall   have,  or  be
\n               entitled to exercise,  any  jurisdiction,
\n               powers  or  authority (except the Supreme
\n               Court,  and  a  High   Court   exercising
\n               jurisdiction  under  articles 226 and 227
\n               of the Constitution) in relation  to  the
\n               matters specified in Section 17.”
\n……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        Parliament in its wisdom incorporated Section 31  of  the
\n        Act  to  provide  for  transfer  of  pending cases to the
\n        appropriate Tribunals.  Section 31 of the  Act  reads  as
\n        follows:\n<\/p>\n
……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               \t“31.     Transfer    of   pending
\n               cases.–(1)   Every   suit    or    other
\n               proceeding   pending   before  any  court
\n               immediately   before    the    date    of
\n               establishment  of  a  Tribunal under this
\n               Act, being a suit or proceeding the cause
\n               of action where on it is  based  is  such
\n               that it would have been, if it had arisen
\n               after   such  establishment,  within  the
\n               jurisdiction  of  such  Tribunal,   shall
\n               stand  transferred  on  that date to such
\n               Tribunal:\n<\/p>\n
               \tProvided  that  nothing  in  this
\n               sub-section  shall  apply  to  any appeal
\n               pending as aforesaid before any court.\n<\/p>\n
               \t(2)  Where  any  suit  or   other
\n               proceeding  stands  transferred  from any
\n               court to  a  Tribunal  under  sub-section
\n               (1),–\n<\/p>\n
               \t(a)  the  court shall, as soon as
\n               may be after such transfer,  forward  the
\n               records  of such suit or other proceeding
\n               to the Tribunal; and<\/p>\n
               \t(b) the Tribunal may, on  receipt
\n               of  such  records,  proceed  to deal with
\n               such suit or other proceeding, so far  as
\n               may be, in the same manner as in the case
\n               of  an  application made under section 19
\n               from the stage which was  reached  before
\n               such  transfer  or from any earlier stage
\n               as the Tribunal, may deem fit.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
        \t8.  A plain reading of Sections 17 and 18 of  the
\n        Act  shows  that ouster of jurisdiction as well as bar of
\n        jurisdiction brought into force by  the  Act  applies  to
\n        courts as  well  as other authorities.  But provision for
\n        transfer of pending cases is  made  only  in  respect  of
\n        suits and  other  proceedings  before  courts.  It is for
\n        this reason respondents took up the contention  that  the
\n        arbitration  case which was pending before the Arbitrator
\n        on  the  appointed  day  cannot  be  transferred  to  the
\n        Tribunal.\n<\/p>\n
        \t9.  Is it that the  Legislature  did  consciously
\n        omit  the  words `other authorities’ in Section 31 of the
\n        Act or is it only an inadvertent or accidental  omission?
\n        In other  words  is  it a case of casus omissus?\n<\/p>\n
        \t10.   The  Act  was  brought  into force with the
\n        object of removing the difficulties experienced by  banks
\n        and  other financial institutions in recovering the loans
\n        as also the enforcement of securities charged with  them.
\n        Legislature   took   cognizance  of  the  fact  that  the
\n        procedure which existed prior to the commencement of  the
\n        Act had blocked a significant portion of the funds of the
\n        aforesaid  institutions in unproductive assets, the value
\n        of  which  deteriorates  with  the   passage   of   time.
\n        Parliament felt the need to work out a suitable mechanism
\n        through  which  the  dues  to  the  banks  and  financial
\n        institutions could be realised without  delay  since  the
\n        blocking  of  huge  amount  of public money in litigation
\n        prevented proper utilisation and recycling of  the  funds
\n        for the  developlment  of  the  country.    Prior  to the
\n        establishment   of   the   Act,   banks   and   financial
\n        institutions  used  to seek reliefs from the civil courts
\n        or other authorities set up under special enactment.  The
\n        other authorities constituted  under  various  enactments
\n        were invested with the power to adjudicate the issues and
\n        to decree  the  suit.  Most of these enactments contained
\n        express provisions ousting the jurisdiction of the  civil
\n        courts to entertain such suits.  As per Section 17 of the
\n        Act,  not  only  the  civil  courts  but  also  the other
\n        authorities  would  cease  to   be   the   forum   having
\n        jurisdiction  to try and dispose of matters coming within
\n        the jurisdiction of the Tribunal.   Bar  of  jurisdiction
\n        applies to specified categories of suits and proceedings,
\n        pending  not  only before the civil courts but also other
\n        authorities on the appointed day.  These aspects strongly
\n        raise the question whether the Legislature which  treated
\n        suits  and  other proceedings before the courts and other
\n        authorities  alike  for  the   purpose   of   ouster   of
\n        jurisdiction and bar of jurisdiction, did intend to treat
\n        dissimilarly  suits  and  proceedings  before  the  other
\n        authorities for the purpose of transfer of cases?   There
\n        appears  hardly  any  valid  reason or rationale for such
\n        dissimilar treatment by excluding other authorities  from
\n        the purview  of  automatic transfer of cases.  No purpose
\n        also  could  be  seen  for  such  dissimilar   treatment.
\n        Therefore,  it  is  possible  to infer that it could be a
\n        case  of  legislative  omission;  an  omission  which  is
\n        inadvertant or  accidental and unintentional.  Provisions
\n        in the statute treating equals as unequals and  violating
\n        Article  14 of the Constitution of India are liable to be
\n        struck down as ultravires.  It is well  settled  that  as
\n        far  as possible, Courts adopt a construction which would
\n        bring the legislation  intravires  the  Constitution  and
\n        avoid,  as  far as legally permissible, its striking down
\n        as unconstitutional.  It is  equally  well  settled  that
\n        when  provisions of the enactment do not embrace the true
\n        intention of the legislature, it produces  results  which
\n        are  contrary to the object and purpose of the enactment.
\n        It is contended on behalf of the petitioner that  Section
\n        31 of  the  Act  presents  a case of this nature.  Is it,
\n        however, proper for this Court, to supply  words  to  the
\n        statutory   provision   which  is  the  function  of  the
\n        Legislature?\n<\/p>\n
        \t11.   A  catena of judicial pronouncements can be
\n        cited to contend for the position that courts  shall  not
\n        readily  infer casus omissus or supply the omission, for,
\n        courts are expected to find  out  the  intention  of  the
\n        legislature by interpreting the language of the statutes.
\n        To  counter  the above school of thought, learned counsel
\n        for the petitioner placed reliance  on  a  long  line  of
\n        judicial  pronouncements,  foreign  as well as Indian, to
\n        canvass for the proposition  that  courts  must  adopt  a
\n        realistic   approach   in   construing   or  interpreting
\n        statutory provisions and  need  not  hesitate  to  supply
\n        words,  if  need  be,  so  as to prevent patent injustice
\n        resulting from inadvertant and unintentional omissions in
\n        the provisions of the statute.    The  following  passage
\n        extracted from Maxwell on the Interpretation of Statutes,
\n        Twelfth Edition throws light in this direction:
\n.SP 1
\n……………L…….T…….T…….T…….T…….T…J<\/p>\n
               \t“Where  the language of a statute, in
\n               its   ordinary   meaning   and    grammatical
\n               construction,    leads    to    a    manifest
\n               contradiction of the apparent purpose of  the
\n               enactment,   or   to  some  inconvenience  or
\n               absurdity  which   can   hardly   have   been
\n               intended,  a  construction may be put upon it
\n               which modifies the meaning of the  words  and
\n               even the structure of the sentence.  This may
\n               be  done  by  departing  from  the  rules  of
\n               grammar, by  giving  an  unusual  meaning  to
\n               particular   words,   or  by  rejecting  them
\n               altogether,   on   the   ground   that    the
\n               legislature  could not possibly have intended
\n               what  its  words  signify,   and   that   the
\n               modifications  made  are  mere corrections of
\n               careless language and really  give  the  true
\n               meaning.  Where the main object and intention
\n               of  a  statute  are  clear,  it  must  not be
\n               reduced  to  a  nullity  by  the   draftman’s
\n               unskilfulness or ignorance of the law, except
\n               in  a  case  of  necessity,  or  the absolute
\n               intractability of the language  used.    Lord
\n               Reid  has  said  that  he  prefers  to  see a
\n               mistake on the part of the draftsman in doing
\n               his revision rather than a deliberate attempt
\n               to introduce an irrational rule:  “the canons
\n               of  construction  are  not  so  rigid  as  to
\n               prevent a realistic solution.””\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        The  illustrative cases that have been briefly dealt with
\n        in page 229 of the  same  edition  lend  support  to  the
\n        school  of thought that courts will have occasionally and
\n        for  justifiable  reasons,  to  fill  omissions,   though
\n        rarely,  in  the  statutory  provisions  attributable  to
\n        obvious oversights.  In Tirath Singh v.  Bachittar  Singh<\/a>@@
\n                                CCCCCCCCCCCC     CCCCCCCCCCCCCCCC
\n        & Others  (AIR  1955 S.C.  830) the Supreme Court quoting@@
\n        CCCCCCCC
\n        the passage from Maxwell (supra)  expressed  the  opinion
\n        that it is a well established rule of interpretation.  In
\n        State of Madhya Pradesh v.  M\/s.  Azad Bharat Finance Co.<\/a>@@
\n        CCCCCCCCCCCCCCCCCCCCCCC     CCCCCCCCCCCCCCCCCCCCCCCCCCCCC
\n        & another  (AIR  1967 S.C.  276), interpreting Section 11@@
\n        CCCCCCCCC
\n        of the Opium Act, 1878 (as applicable to  M.P.),  Supreme
\n        Court  referred to Tirath Singh’s case (supra) and stated
\n        as follows:\n<\/p>\n
……………L…….T…….T…….T…….T…….T..J
\n.SP 1<\/p>\n
               “According to Mr.  Shroff, the  truck  would
\n               have to   be   confiscated.     It  is  well
\n               recognised  that  if  a  statute  leads   to
\n               absurdity, hardship or injustice, presumably
\n               not intended, a construction may be put upon
\n               it  which modifies the meaning of the words,
\n               and even the structure of the sentence.”
\n……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        Lord Denning in  Seaford  Court  Estates, Ltd.  v.  Asher@@
\n                         CCCCCCCCCCCCCCCCCCCCCCCCCCCCC      CCCCC
\n        (1949 (2) All E.R.  155)  expressed  the  view  that  the
\n        principle laid down  in Winchester Court Ltd.  v.  Miller@@
\n                                CCCCCCCCCCCCCCCCCCCCC      CCCCCC
\n        ((1944) 2 All E.R.  106) that
\n.SP 1
\n……………L…….T…….T…….T…….T…….J<\/p>\n
               “whenever  a   statute   comes   up   for
\n               consideration  it must be remembered that
\n               it is not within human powers to  foresee
\n               the  manifold  sets  of  facts  which may
\n               arise, and, even if it were,  it  is  not
\n               possible  to  provide  for  them in terms
\n               free from all  ambiguity.    The  English
\n               language   is   not   an   instrument  of
\n               mathematical precision.   Our  literature
\n               would  be  much  the  poorer  if it were.
\n               This is where the draftsmen  of  Acts  of
\n               Parliament   have   often  been  unfairly
\n               criticised.  A Judge,  believing  himself
\n               to  be fettered by the supposed rule that
\n               he must look to the language and  nothing
\n               else, laments that the draftsmen have not
\n               provided  for  this or that, or have been
\n               guilty of some or other  ambiguity.    It
\n               would  certainly  save the judges trouble
\n               if Acts of Parliament were  drafted  with
\n               divine  prescience  and  perfect clarity.
\n               In the  absence  of  it,  when  a  defect
\n               appears,  a  judge cannot simply fold his
\n               hands and blame the draftsman.   He  must
\n               set  to  work on the constructive task of
\n               finding the intention of Parliament,  and
\n               he   must  do  this  not  only  from  the
\n               language of the statute, but also from  a
\n               consideration  of  the  social conditions
\n               which gave rise to it and of the mischief
\n               which it was passed to remedy,  and  then
\n               he must supplement the written word so as
\n               to give “force and life” to the intention
\n               of the legislature”.\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        Lord   Denning  then  held:\n<\/p>\n
……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               “………..put into homely  metaphor  it
\n               is this:   A judge should ask himself the
\n               question how, if the makers  of  the  Act
\n               had  themselves  come across this ruck in
\n               the  texture  of  it,  they  would   have
\n               straightened it  out?  He must then do as
\n               they would have done.  A judge  must  not
\n               alter  the  material  of which the Act is
\n               woven, but he can and should iron out the
\n               creases.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
        \t12.  In State  of  Bihar  v.    Dr.    Asis Kumar<\/a>@@
\n                 CCCCCCCCCCCCCCCC        CCCCCCCCCCCCCCCCC
\n        Mukherjee {(1975) 2 SCR 894} a Bench of 3 Judges  of  the@@
\n        CCCCCCCCC
\n        Supreme Court speaking through Krishna Iyer, J.  referred
\n        to  the  principle  of  statutory interpretation given by
\n        Denning, L.J.    candidly   said   that   the   rule   of
\n        interpretation adopted by the Supreme Court was by taking
\n        cue  from  the observations made in Seaford Court Estates
\n        Limited (supra).\n<\/p>\n
        \t13.  In this context it is only proper  to  refer
\n        to  another three member bench decision of the Apex Court
\n        decided in the same year, where Untwalia,  J.    speaking
\n        for  the Bench found favour with the rule of construction
\n        that a statute may not be extended to  meet  a  case  for
\n        which  provision  has  clearly  and  undoubtedly not been
\n        made.  (See Dhoom Singh v.  Prakash  Chandra  Sethi  (AIR<\/a>@@
\n                    CCCCCCCCCCC     CCCCCCCCCCCCCCCCCCCCCCC
\n        1975 SC  1012).   The above view was taken by the Supreme
\n        Court while construing the provisions of Sections 81,  82
\n        and  117  of  the Representation of the People Act, 1951.
\n        Supreme  Court  repelled  the  right  of  an  elector  to
\n        intervene  and  substantiate  allegations  of  fraud  and
\n        collusion  between  the  election  petitioner   and   the
\n        returned  candidate  even  in a case where as a result of
\n        the fraud and collusion between the  election  petitioner
\n        and   the   returned   candidate   the   High  Court  was
\n        fraudulently misled to act under  Section  86(1)  of  the
\n        Representation of  the People Act.  In the opinion of the
\n        Supreme Court if there be any necessity of  avoiding  any
\n        such situation it is for the legislature to intervene and
\n        make clear and express provision of law for the purpose.\n<\/p>\n
        \t14.  Omissions in a statute, cannot, as a general
\n        rule be supplied by construction, is a well accepted rule
\n        of interpretation.      It  is  ture  that  this  general
\n        principle is not without exception.   Since  the  primary
\n        purpose  of construction is to ascertain the intention of
\n        the Legislature, such intention should be  given  effect,
\n        even  if  it  necessitates  the  supplying  of omissions,
\n        provided,  of   course,   that   this   effectuates   the
\n        legislative intention.   There are decisions indicating a
\n        trend in this direction  as  well.    Since  the  primary
\n        source  of  legislative  intend  is  the  language of the
\n        statute, judicial thinking leans more in  favour  of  the
\n        former school  of  thought.  The following passage quoted
\n        below from Crawford’s Interpretation of Laws, (Page  271,
\n        1989  Reprint)  would  give  a  clear idea about the view
\n        expressed by Courts in regard to casus omissus:
\n……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               \t“Obviously the reason back of the
\n               rule of casus omissus  is  found  in  the
\n               principle  that  if the court attempts to
\n               supply that  which  the  legislature  has
\n               omitted,  there  is  considerable  danger
\n               that it may invade the legislative field.
\n               It is not easy to determine  whether  the
\n               omission was  intentional  or  not.   And
\n               even where it was inadvertent, an attempt
\n               to supply the omission, by including  the
\n               omitted  case, generally would operate to
\n               add to the statute a meaning not intended
\n               by the legislature, for, how  can  it  be
\n               said   that  the  lawmakers  intended  to
\n               include something omitted?”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        It  is,  of  course,  pertinent  to  note  that the above
\n        passage concludes as follows:\n<\/p>\n
……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               “It  would  seem  that  the only time the
\n               omitted case might be included within the
\n               statute’s operation, would  be  when  the
\n               legislature  intended  to include it, but
\n               actually failed  to  use  language  which
\n               would,  on  its  face,  cover the omitted
\n               case.   The  inclusion  would   then   be
\n               justified,  if from the various intrinsic
\n               and extrinsic aids,  the  intent  of  the
\n               legislature  to  incorporate  the omitted
\n               case,  could  be   ascertained   with   a
\n               reasonable degree of certainty.”
\n……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
        \t15.  Supreme Court had occasion to  consider  the
\n        relevance   of   the   above   rule  of  construction  in
\n        Commissioner of Income Tax, Central Calcutta v.  National@@
\n        CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC     CCCCCCCC
\n        Taj Traders (AIR 1980 S.C 485) wherein it is  held,  vide@@
\n        CCCCCCCCCCC
\n        paragraphg  10  of  the  judgment, that two principles of
\n        construction — one relating to  casus  omissus  and  the
\n        other  in regard to reading the statute as a whole appear
\n        to be  well   settled.      Quoting   from   Maxwell   on
\n        Interpretation  of Statutes (12 Edn.) at page 33, Supreme
\n        Court highlighted the importance  of  the  two  rules  of
\n        interpretation.  (1) Omissions not to be inferred and (2)
\n        a statute  is  to be read as a whole.  In the latter half
\n        of the same paragraph the following is stated:
\n……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               \t“In other words, under the  first
\n               principle   a  casus  omissus  cannot  be
\n               supplied by the Court except in the  case
\n               of clear necessity and when reason for it
\n               is  found  in  the  four  corners  of the
\n               statute itself but at  the  same  time  a
\n               casus   omissus  should  not  be  readily
\n               inferred and for  that  purpose  all  the
\n               parts  of  a  statute  or section must be
\n               construed together and every clause of  a
\n               section    should   be   construed   with
\n               reference  to  the  context   and   other
\n               clauses  thereof so that the construction
\n               to be put on a particular provision makes
\n               a  consistent  enactment  of  the   whole
\n               statute.    This  would  be  more  so  if
\n               literal  construction  of  a   particular
\n               clause  leads  to  manifestly  absurd  or
\n               anomalous results which  could  not  have
\n               been intended  by  the  Legislature.  “An
\n               intention  to  produce  an   unreasonable
\n               result”, said   Danckwerts   L.J.      in
\n               Artemiou v.  Procopiou ((1966) 1 QB 878),
\n               “is not to be imputed  to  a  statute  if
\n               there    is   some   other   construction
\n               available”.    Where   to   apply   words
\n               literally   would   “defeat  the  obvious
\n               intention of the legislation and  produce
\n               a wholly unreasonable result” we must “do
\n               some   violence  to  the  words”  and  so
\n               achieve  that   obvious   intention   and
\n               produce a  rational  construction.   (Per
\n               Lord Reid in Luke v.  I.R.C., 1963 AC 557
\n               where at p.  577 he also observed:  “this
\n               is not a new problem, though our standard
\n               of  drafting  is  such  that  it   rarely
\n               emerges”.\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        In B.   Prabhakar  Rao  v.   State of Andhra Pradesh (AIR@@
\n           CCCCCCCCCCCCCCCCCCC       CCCCCCCCCCCCCCCCCCCCCCC
\n        1986 S.C.  210) the Apex Court held that legislations  to
\n        remedy  wrongs  ought  not  to exclude from their purview
\n        persons, a few of the wronged, unless the  situation  and
\n        the  circumstances  make  the  redressal of the wrong, in
\n        their case, either impossible or so  detrimental  to  the
\n        public interest that the mischief of the remedy outweighs
\n        the mischief sought to be remedied.  One of the arguments
\n        raised  before  the  Supreme  Court in the above case was
\n        that it was not open to the court to give retrospectivity
\n        to a legislation to which the  lelgislature  plainly  and
\n        expressly refused to give retrospectivity.  While dealing
\n        with  that  contention,  the  Supreme Court stated, inter
\n        alia, as follows:\n<\/p>\n
……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               “We  must  further  remember, quite apart
\n               from  any  question  of  retrospectivity,
\n               that,  unlike  in the United Kingdom here
\n               in India we have a  written  Constitution
\n               which   confers  justiciable  fundamental
\n               rights and so the very refusal to make an
\n               Act retrospetive or  the  non-application
\n               of the Act with reference to a date or to
\n               an  event  that  took  place  before  the
\n               enactment  may,  by  itself,  create   an
\n               impermissible  classification  justifying
\n               the     striking     down     of      the
\n               non-retroactivity    or   non-application
\n               clause,  as  offending  the   fundamental
\n               right  to equality before the law and the
\n               equal protection of the laws.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        In State of  Karnataka  v.    M\/s.    Hansa   Corporation<\/a>@@
\n           CCCCCCCCCCCCCCCCCCC        CCCCCCCCCCCCCCCCCCCCCCCCCCC
\n        ((1980)4 SCC 697) the Apex Court quoted with approval the
\n        statement of law enunciated in Seaford Court Estates Ltd.
\n        (supra) and held that
\n……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               “where  one  has to look at a section not
\n               very well drafted but the  object  behind
\n               the   legislation   and  the  purpose  of
\n               enacting the same is clearly discernible,
\n               the court cannot hold its hand and  blame
\n               the draftsman and chart an easy course of
\n               striking down  the  statute.    In such a
\n               situation the court should be guided by a
\n               creative approach to ascertain  what  was
\n               intended to be done by the legislature in
\n               enacting  the legislation and so construe
\n               it as to  give  force  and  life  to  the
\n               intention of the legislature.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2\n<\/p>\n
        \t16.  It cannot, however, be  forgotten  that  the
\n        golden rule of interpretation of statute is that when the
\n        language  is  explicit,  its  consequences  are  for  the
\n        legislature and not for the Court to  consider.    If  it
\n        appears  to the court that words which ought to have been
\n        there  in  the  statutes  have  been   omitted   by   the
\n        legislature,  it  must  be supposed that the omission was
\n        intentional.  Even if  the  omission  is  obvious,  casus
\n        omissus  can  in  no  cases be supplied by the process of
\n        interpretation.  The following  passage  from  Craies  on
\n        Statute Law, VII Edition at Page 71 reflects the judicial
\n        thinking  that  held the field in England in the 18th and
\n        19th centuries:\n<\/p>\n
……………L…….T…….T…….T…….T…….T..J
\n.SP 1<\/p>\n
               “In Jones v.   Smart {(1785) 1 T.R.  44} the@@
\n                   CCCCC      CCCCC
\n               question was whether a doctor of physic in a
\n               Scottish university was  qualified  to  kill
\n               game under 22  &  23  Car.  2, c.  25, which
\n               enacted “that every person…..  other  than
\n               the  son  of  an esquire, or other person of
\n               higher degree …..  is  declared  to  be  a
\n               person  by the law of this realm not allowed
\n               to have any guns ….    for  taking  game.”
\n               Amongst  other  arguments for proving that a
\n               Scottish doctor of physic was qualified,  it
\n               was contended that the legislature could not
\n               have intended to exclude such a person.  “Be
\n               that as  it  may,”  said  Buller  J.  in his
\n               judgment, “we are bound to take the  Act  of
\n               Parliament  as  they  have  made it; a casus
\n               omissus can in no  case  be  supplied  by  a
\n               court  of  law,  for  that  would be to make
\n               laws.” As a general rule,  as  Blackburn  J.
\n               pointed out in R.  v.  Cleworth, {(1864) 4 B@@
\n                              CC      CCCCCCCCC
\n               & S.    927} if it appears that the class or
\n               thing which it is sought to bring within the
\n               Act (under consideration) was known  to  the
\n               legislature  at  the  time  when the Act was
\n               passed, and that class is omitted, “it  must
\n               be    supposed    to   have   been   omitted
\n               intentionally.” It makes no difference if it
\n               appears that the omission on the part of the
\n               legislature was a mere oversight,  and  that
\n               without  doubt the Act would have been drawn
\n               otherwise   had   the   attention   of   the
\n               legislature  been  directed to the oversight
\n               at the time the Act was under discussion.”
\n……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        Privy Council, in Kumar Kamalaranjan Roy v.  Secretary of@@
\n                          CCCCCCCCCCCCCCCCCCCCCC     CCCCCCCCCCCC
\n        State (AIR 1938 P.C.  281 at page 283), while  construing@@
\n        CCCCC
\n        the  provisions  of Section 114 (1) and (3) of the Bengal
\n        Tenancy Act, 1885, held as follows:
\n……………L…….T…….T…….T…….T…….T…J
\n.SP 1<\/p>\n
               “All these provisions seem quite inconsistent
\n               with a shifting liability  passing  from  the
\n               certificate  debtor  to  any  new landlord to
\n               whom the estate may pass.  The fact seems  to
\n               be  that  the  various Acts have provided for
\n               all  contingencies  as  to  transmission  and
\n               devolution   of  the  estate,  but  have  not
\n               provided for the special case  in  which  the
\n               patni  estate is not transmitted or devolved,
\n               but annulled and determined.  It may be  that
\n               there  is  here  a  casus omissus, but if so,
\n               that omission can only be supplied by statute
\n               or statutory action.  The  Court  cannot  put
\n               into  the  Act words which are not expressed,
\n               and which cannot reasonably be implied on any
\n               recognized principles of construction.   That
\n               would  be  a  work  of  legislation,  not  of
\n               construction, and outside the province of the
\n               Court.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        In Sm.  Hira Devi v.  District Board,  Shahjahanpur  (AIR<\/a>@@
\n           CCCCCCCCCCCCCC     CCCCCCCCCCCCCCCCCCCCCCCCCCCCC
\n        1952 SC 362) the Apex Court held:\n<\/p>\n
……………L…….T…….T…….T…….T…….T….J
\n.SP 1<\/p>\n
               “It  was unfortunate that when the Legislature
\n               came to amend the old s.  71  of  the  Act  it
\n               forgot to  amend s.  90 in conformity with the
\n               amendment of s.  71.  But this  lacuna  cannot
\n               be  supplied  by any such liberal construction
\n               as the High  Court  sought  to  put  upon  the
\n               expression  “orders  of  any  authority  whose
\n               sanction is necessary.” No  doubt  it  is  the
\n               duty  of  the  Court  to try and harmonise the
\n               various provisions of an  Act  passed  by  the
\n               Legislature.  But it is certainly not the duty
\n               of  the Court to stretch the words used by the
\n               Legislature to fill in gaps  or  omissions  in
\n               the provisions of an Act.”\n<\/p>\n
.SP 2
\n……..L…….T…….T…….T…….T…….T…….T…….J
\n        This  proposition has been found favour in Jeewanlal Ltd.@@
\n                                                   CCCCCCCCCCCCCC
\n        v.   Appellate  Authority  ((1984)  4  SCC  356),  Indian@@
\n             CCCCCCCCCCCCCCCCCCCC                          CCCCCC
\n        Administrative Service (SCS)  Assn.    v.  Union of India<\/a>@@
\n        CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC        CCCCCCCCCCCCCC
\n        (1993 Suppl.  (1) SCC  730),  Mohan  Kumar  Singhania  v.@@
\n                                      CCCCCCCCCCCCCCCCCCCCCCC
\n        Union of  India  (1992  Suppl.   (1) SCC 59) and State of@@
\n        CCCCCCCCCCCCCCC                                  CCCCCCCC
\n        Kerala v.  Dr.  Sarvothama Prabhu<\/a> ((1999) 2 SCC 622).  In@@
\n        CCCCCC     CCCCCCCCCCCCCCCCCCCCCC
\n        fact, the Apex Court has held in the above judgments that
\n        if the words are unambiguous, clear and  explicit,  there
\n        need be no recourse to any rules of interpretation.    In
\n        this  context  reference  can  be  made  to  judgment  in
\n        Surendran v.  Mavelikara Primary Co-op.  Agrl.    &  R.D.<\/a>@@
\n        CCCCCCCCC     CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
\n        Bank Ltd.   (2005 (4) KLT 619 (DB)) holding the view that@@
\n        CCCCCCCCC
\n        when  the  language  of  the   statute   is   plain   and
\n        unambiguous,  the  court must give effect to it, whatever
\n        may be the consequence.\n<\/p>\n
        \t17.  In State of Gujarat & Ors.   v.    Dilipbhai@@
\n                 CCCCCCCCCCCCCCCCCCCCCCC         CCCCCCCCC
\n        Nathjibhai Patel & anr.    {J.T.   1998(2) S.C.  253} the@@
\n        CCCCCCCCCCCCCCCCCCCCCCC
\n        Apex  Court  quoted  with  approval  the  observation  in
\n        Crawford v.   Spooner {1846(6) Moore P.C.  1) that courts@@
\n        CCCCCCCC      CCCCCCC
\n        cannot aid the Legislatures’  defective  phrasing  of  an
\n        Act,  we cannot add or amend, and by construction make up
\n        deficiencies which are left there.  In State of Kerala v.@@
\n                                               CCCCCCCCCCCCCCC
\n        Neelakandan Nair (I.L.R.  2005 (3) Kerala 611)  the  Apex@@
\n        CCCCCCCCCCCCCCCC
\n        Court while examining the scope of Rule 62 of Chapter XIV
\n        A  of  the Kerala Education Rules and Rule 60 (c) of Part
\n        I, Kerala Service Rules, made the following  observations
\n        with particular reference to casus omissus:
\n……………L…….T…….T…….T…….T…….J
\n.SP 1<\/p>\n
               \t“It is then true that, “when  the
\n               words   of   a   law  extend  not  to  an
\n               inconvenience rarely happening,  but  due
\n               to  those  which often happen, it is good
\n               reason not to strain  the  words  further
\n               than  they  reach,  by saying it is casus
\n               omissus, and that the law  intended  quae
\n               frequentius accidunt”.    “But”,  on  the
\n               other hand, “it is no  reason,  when  the
\n               words  of  a  law  do enough extend to an
\n               inconvenience seldom happening, that they
\n               should not extend to it as well as if  it
\n               happened   more  frequently,  because  it
\n               happens  but  seldom  ”  (See  Fenton  v.@@
\n                                              CCCCCC
\n               Hampton ((1858) XI  Moore, P.C.  347).  A@@
\n               CCCCCCC
\n               casus omissus ought not to be created  by
\n               interpretation,  save  in  some  case  of
\n               strong necessity.    Where,  however,   a
\n               casus  omissus  does really occur, either
\n               through   the   inadvertence    of    the
\n               legislature,  or  on  the  principle quod
\n               semel   aut   bis   existit   proetereunt
\n               legislators,   the   rule   is  that  the
\n               particular  case,  thus  left  unprovided
\n               for, must be disposed of according to the
\n               law    as    it   existed   before   such
\n               statute–Casus omissus et oblivioni datus
\n               dispositioni communis juris  relinquitur,
\n               “a  casus  omissus,”  observed Buller, J.
\n               in Jones v.  Smart (ITR 52), “can  in  no@@
\n                  CCCCC     CCCCC
\n               case  be  supplied by a Court of law, for
\n               that would be to make laws.”\n<\/p>\n
               \tThe  golden  rule  for construing
\n               wills,  statutes,  and,  in   fact,   all
\n               written instruments has been thus stated:
\n               “The  grammatical  and  ordinary sense of
\n               the words is to be adhered to unless that
\n               would lead  to  some  absurdity  or  some
\n               repugnance or inconsistency with the rest
\n               of  the  instrument,  in  which  case the
\n               grammatical and  ordinary  sense  of  the
\n               words  may  be  modified,  so as to avoid
\n               that absurdity and inconsistency, but  no
\n               further” (See  Grey  v.    Pearson  (1857@@
\n                              CCCC        CCCCCCC
\n               (6)H.L.  Cas.  61).  The latter  part  of
\n               this  “golden  rule”  must,  however,  be
\n               applied with much caution, “if”, remarked
\n               Jervis, C.J., “the precise words used are
\n               plain and unambiguous in our Judgment, we
\n               are  bound  to  construe  them  in  their
\n               ordinary  sense,  even though it lead, in
\n               our view of the case, to an absurdity  or
\n               manifest injustice.      Words   may   be
\n               modified or varied where their import  is
\n               doubtful or  obscure.   But we assume the
\n               functions of legislators when  we  depart
\n               from  the ordinary meaning of the precise
\n               words used, merely  because  we  see,  or
\n               fancy  we  see,  an absurdity or manifest
\n               injustice  from  an  adherence  to  their
\n               literal meaning”  (See Abley v.  Dale (11@@
\n                                      CCCCC     CCCC
\n               C.B.  378).”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T…….J
\n.SP 2
\n        In the next paragraph of  the  above  judgment  the  Apex
\n        Court  referred  to  the  maxim  “Ad  ea quae frequentius
\n        accidunt jura adaptantur” (The laws are adapted to  those
\n        cases which more frequently occur).\n<\/p>\n
        \t18.  Keeping in mind the above principles of law,
\n        let us  read  Section  31  of  the Act once again.  It is
\n        explicitly clear  that  sub-section  (1)  of  Section  31
\n        speaks only about suit or other proceeding pending before
\n        any  court,  the  proviso to the above sub-section speaks
\n        about appeal pending before any  court,  sub-section  (2)
\n        speaks  only  about  suit or other proceeding transferred
\n        from any court and clause (a)  of  sub-section  (2)  also
\n        speaks only about the court.  Absence of the words “other
\n        authority”  in  more  than  one place in Section 31 is so
\n        conspicuous that supplying the said words in  sub-section
\n        (1)  of  Section  31,  the  proviso  to  sub-section (1),
\n        sub-section (2) of Section 31 as also clause (a)  of  the
\n        said  sub-section  would  in effect amount to substantial
\n        alterations and rewriting the section.  It will not  fall
\n        within  the  expression  “ironing  out the creases.” Such
\n        rewriting is the function of the legislature.  Section 31
\n        when read  in  isolation  does  not  raise  any  problem;
\n        neither ambiguity nor irrationality.  Problems arise only
\n        when  Section 31 is read along with Sections 17 and 18 in
\n        the background of the statement of  objects  and  reasons
\n        which led to the passing of that enactment.  In this view
\n        of  the  matter  I  am unable to accept the contention of
\n        Shri.  Easwar that Section 31 of the Act shall be read by
\n        supplying the words “other  authority”,  after  the  word
\n        `court’  in sub-section (1) and the proviso to Section 31
\n        of the Act.\n<\/p>\n
        \t19.   The  next  question  for  consideration  is
\n        whether the dismissal  of  the  suit  (arbitration  case)
\n        instead  of  returning the plaint for presentation before
\n        the Tribunal has led to miscarriage of justice and if so,
\n        whether  appropriate  reliefs  can  be  granted  to   the
\n        petitioner  in  the facts and circumstances of this case.
\n        Learned counsel for the petitoner drew  my  attention  to
\n        Order  VII,  Rule  10  of  the  Code  of Civil Procedure,
\n        decisions  of  the  Supreme  Court  in   Athmananthaswami@@
\n                                                 CCCCCCCCCCCCCCCC
\n        Devasthanam v.   K.    Gopalaswami  Ayyangar (AIR<\/a> 1965 SC@@
\n        CCCCCCCCCCC      CCCCCCCCCCCCCCCCCCCCCCCCCCC\n<\/p>\n
        338) and M\/s.  Air Tech India v.   Asst.    Commissioner,@@
\n                 CCCCCCCCCCCCCCCCCCCC      CCCCCCCCCCCCCCCCCCCCCC
\n        Comml.  Taxes & Ors.  (JT 1999 (10) SC 362) and contended@@
\n        CCCCCCCCCCCCCCCCCCCC
\n        that the legislative policy underlying Order VII, Rule 10
\n        C.P.C.   can be made applicable to suits filed before the
\n        Registrar dealing with cases  under  Section  69  of  the
\n        Societies Act.    Respondents  resisted the above line of
\n        argument pointing out the absence of  express  provisions
\n        in  the  Societies  Act  or  in  the  Rules  enabling the
\n        Arbitrator to return the plaint for  presentation  before
\n        the proper forum.  It was also pointed out that the above
\n        decisions  of  the  Apex  Court  have  not  laid down any
\n        principle that the legislative policy  behind  Order  VII
\n        Rule  10  can be extended to any other adjudicating forum
\n        other than the courts coming under C.P.C.    Counsel  for
\n        the  petitioner, in reply, asked a counter question to be
\n        answered by the respondents and submitted that  there  is
\n        no  express  provision  to  dismiss the case either, when
\n        jurisdiction is taken away by operation of law to proceed
\n        with a pending matter that the order was  passed  without
\n        the authority.    He  contended  that there is no express
\n        provision to dismiss the case in the event of  ouster  of
\n        jurisdiction.\n<\/p>\n
        \t20.  On an anxious  consideration  of  the  rival
\n        contentions of the counsel on either side, I feel, in the
\n        facts  and circumstances of this case, that return of the
\n        plaint alone would meet the ends of justice.   No  doubt,
\n        Order  VII, Rule 10 C.P.C is not, as such, attracted to a
\n        situation like this.  Petitioner invoked  Section  69  of
\n        the  Societies  Act  and filed the suit before the proper
\n        forum as matters stood on the date of filing of the suit.
\n        The Arbitrator  upon  taking  cognizance  of  the  matter
\n        issued  summons  to  the opposite parties and called upon
\n        them to file written statement.  While so, the  Act  came
\n        into force   and  the  Tribunal  was  constituted.    The
\n        Arbitrator has been divested of his power to proceed with
\n        the matter by the force of Section 18  of  the  Act  that
\n        intervened.  The impugned order was passed taking note of
\n        the  fact  that  the  Tribunal  under  the  Act  has been
\n        constituted and the petitioner has to  proceed  with  his
\n        case further,  before  the  said  Tribunal.    As rightly
\n        contended by counsel for the petitioner, in  a  situation
\n        like  this,  there  is neither provision for dismissal of
\n        the suit nor for return of the plaint.  If the plaint  is
\n        returned   for   presentation  before  the  forum  having
\n        jurisdiction, further proceedings before that forum could
\n        be initiated from the stage at  which  the  matter  stood
\n        before the  forum  which  lost  the jurisdiction.  On the
\n        other hand, if the suit is  dismissed  in  the  light  of
\n        Section 18 of the Act, the plaintiff\/petitioner will have
\n        to  start  everything  fresh before the forum vested with
\n        the jurisdiction.  Such a course of action  would  create
\n        new  hurdles such as limitation to approach the Tribunal,
\n        payment of court  fees  and  other  fees  prescribed  for
\n        entertaining  the  suit  by  the  Tribunal, etc., for the
\n        plaintiff.  Plaintiff is made to face such  problems  for
\n        no fault  of his.  Such problems are the direct result of
\n        the provisions of the Act.  Hence even in the absence  of
\n        a statutory provision in the nature of Order VII Rule 10,
\n        C.P.C.   the  principle  of  law coupled with justice and
\n        equity embodied in the aforesaid statutory provision  has
\n        to  be  stretched to other areas of adjudication and made
\n        applicable to situations where the adjudicating authority
\n        finds that it has no jurisdiction to entertain a suit  or
\n        to  proceed  with one which has already been entertained,
\n        but  cannot  be  disposed  of  on  merits  for  want   of
\n        jurisdiction  as  a  result  of ouster of jurisdiction or
\n        other intervening factors like the operation of law.\n<\/p>\n
        \t21.   In  the  result,  though  I  am inclined to
\n        uphold the decision of the 4th respondent  rejecting  the
\n        request  of  the  petitioner  to transfer the arbitration
\n        case to the Tribunal, I hold that the  dismissal  of  the
\n        arbitration  case warrants interference under Article 226
\n        of the Constitution of India to undo the  injustice.    I
\n        hold  that  the  arbitration  case  ought  to  have  been
\n        returned   to   the   petitioner\/plaintiff   for   proper
\n        presentation before the  appropriate  Tribunal.  Ext.  P4
\n        order of the 4th respondent to the  extent  it  dismissed
\n        the arbitration  case  is  set  aside.   There shall be a
\n        direction to the 4th respondent that the plaint shall  be
\n        returned  to  the  petitioner for presentation before the
\n        proper forum within three weeks from the date of  return.
\n        Upon   presentation  of  the  plaint  as  aforesaid,  the
\n        Tribunal having jurisdiction shall proceed with the  case
\n        in accordance with law.  Original petition is disposed of
\n        as above.  There will be no order as to costs.\n<\/p>\n
        \t\t\t\t(K.K.  DENESAN, JUDGE)
\n        jan\/-\n<\/p>\n
.PA
\n((HDR 0<\/p>\n
))
\n.HE 2
\n.SP 1
\n.JN
\n        \t\t\t\t      K.K. DENESAN, J.\n<\/p>\n
        \t\t\t\t= = = = = = = = = = = = =
\n        \t\t\t\t O.P. No. 22861 OF 1999 V
\n        \t\t\t\t= = = = = = = = = = = = =<\/p>\n
        \t\t\t\t\tJUDGMENT<\/p>\n
        \t\t\t\t     23rd December, 2005<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Indian Bank vs Ekm Dist.Motor Transport … on 23 December, 2005 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-214565","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nIndian Bank vs Ekm Dist.Motor Transport ... on 23 December, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indian-bank-vs-ekm-dist-motor-transport-on-23-december-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indian Bank vs Ekm Dist.Motor Transport ... on 23 December, 2005 - 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