9911796707
TMI Blog2006 (12) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... ndente lite and future interest. A preliminary decree for recovery of Rs. 19,07,800/- with future interest @ 12% per annum was passed by the High Court in favour of the decree-holder Bank, the respondent herein, on 2.12.1985 in Company Petition No. 46 of 1984. Ultimately, a decree was passed in favour of the Bank on 15.1.1987 in Company Application No. 115 of 1986. The aforesaid final decree dated 15.1.1987 stated as under: "It is hereby ordered and decreed that the mortgaged/pledged/hypothecated properties in the aforesaid preliminary decree mentioned or sufficient part thereof be sold, and that for the purpose of such sale the plaintiff/petitioner shall produce before the Court or such officer as appointed, all documents in his possession or power relating to the mortgage properties. And it is hereby ordered and decreed that the money realized by such sale shall be paid in the Court and shall be duly applied (after deduction therefrom of expenses of the sale) in the payment of the amount payable to the plaintiff/petitioner under aforesaid preliminary decree and under any further orders that may have been passed in this petition and in payment of any amount which the Court ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition in this Court." The decree-holder Bank (respondent in this appeal), then filed a third Execution Petition No. 1 of 1999 dated 11.01.1999 against M/s. Bareja Knipping Fasteners Limited through the Official Liquidator, without impleading the appellants and Shri K.M.Bareja as parties to the Execution Petition. On this third Execution Petition, the High Court on 1.4.1999 passed the following order: "Nobody is present on behalf of the petitioner. Counsel for the Official Liquidator submits that the decree has already been executed against the assets and properties of the Company. He further submits that no assets of the Company, moveable or immoveable, are available with the Official Liquidator. As such, there can be hardly any execution against the Company. Petition stands disposed of. Liberty to file proper petition against the other judgment debtors in accordance with law is granted as they have not been impleaded as parties in the Memo of Parties either of the execution petition of that of the application." Thereafter, on 7.4.1999, the Bank instead of filing a petition as directed by the High Court, filed Company Application No. 173 of 1999 for restoration of the Execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissal of execution application, is accordingly, dismissed." Learned counsel for the appellant submitted that the aforesaid order was wholly without jurisdiction. Learned counsel for the appellant has invited our attention to Sections 17, 18, 24 and 31of the RDB Act. These provisions are as follows: "17. Jurisdiction, powers and authority of Tribunals. (1) A Tribunal shall exercise, on and from the appointed day, 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. (2) An Appellate Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain appeals against any order made, or deemed to have been made, by a Tribunal under this Act. 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 Arts. 226 and 227 of the Constitution) in relation to the matters specified in Section 17. 24. Limitation. The provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding pending before any Court to the Tribunal. Hence, the impugned order dated 26.5.2005 was clearly illegal and without jurisdiction. In this connection learned counsel for the appellant has relied on the decision of this Court in Allahabad Bank vs. Canara Bank & Anr. 2000(4) SCC 406. In the aforesaid decision this Court observed that the word `proceedings' in Section 31 of the RDB Act includes `execution proceedings' pending before a civil court before the commencement of the Act. In para 50 of the aforesaid decision this Court observed that the RDB Act, 1993 confers exclusive jurisdiction on the Debt Recovery Tribunal both at the stage of adjudication of the claim under Section 17 of the Act as well as execution of the claim. The Court observed that the provisions of the RDB Act, 1993 are to an extent inconsistent with the provisions of the Companies Act, 1956, and the latter Act has to yield to the provisions of the former. This position holds good during the pendency of the winding-up petition against the debtor company and also after a winding-up order is passed. The Court further held that no leave of the Company Court is necessary under Section 446 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Act was omitted by Companies (Second Amendment) Act, 2002 and evidently the High Court has overlooked this Amendment. As a result in our opinion the High Court has no power to transfer the Execution Petition to the Debts Recovery Tribunal. At any event as held in Allahabad Bank vs. Canara Bank & Anr.(supra), Section 446 has no application once the RDB Act applies because Section 34 expressly gives overriding effect to the provisions of the RDB Act. Also, the RDB Act is a special law and hence will prevail over the general law in the Companies Act as held in Allahabad Bank vs. Canara Bank & Anr.(supra). In this connection, we may mention that in the impugned order dated 26.5.2005 the High Court has, while admitting that in view of the decision of this Court in Allahabad Bank vs. Canara Bank & Anr.(supra), it had no jurisdiction to deal with the execution application, it has, however, in the same order relied on the so called "inherent powers" of the Court. In our opinion there are no such inherent powers of the Court of transferring the Execution Proceedings to the Debt Recovery Tribunal, Chandigarh. Whatever powers there are of transfer of proceedings to the Tribunal are cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Equitable considerations have no place where the statute contained express provisions." In India House vs. Kishan N. Lalwani 2003(9) SCC 393 (vide para 7) this Court held that : "The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from by equitable considerations." (emphasis supplied) In the present case, while equity is in favour of the respondent-Bank, the law is in favour of the appellant, since we are of the opinion that the impugned order of the High Court is clearly in violation of Section 31 of the RDB Act, and moreover the claim is time-barred in view of Article 136 of the Limitation Act read with Section 24 of the RDB Act. We cannot but comment that it is the Bank itself which is to blame because after its first Execution Petition was dismissed on 23.8.1990 it should have immediately thereafter filed a second Execution Petition, but instead it filed the second Execution Petition only in 1994 which was dismissed on 18.8.1994. Thereafter, again, the Bank waited for 5 years and it was only on 1.4.1999 that it filed its third Execution Petition. We fail to understand why the Bank waited from 1990 to 1994 and again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC 625. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the grab of interpretation. As stated by Justice Frankfurter of the U.S. Supreme Court (see 'Of Law & Men : Papers and Addresses of Felix Frankfurter') : "Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a stature is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Narsiruddin vs. Sita Ram Agarwal AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji vs. Sub- Divisional Officer, Thandla 2003(1) SCC 692. No doubt in some exceptional cases departure can be made from the literal rule of the interpretation, e.g. by adopting a purposive construction, Heydon's mischief rule, etc. but that should only be done in very exceptional cases. Ordinarily it is not proper for the Court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible vide J.P. Bansal vs. State of Rajasthan & Anr. AIR 2003 SC 1405, State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc.. It is for the legislature to amend the law and not the Court vide State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349. In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730, this Court observed : " The Court cannot legislate under the grab of interpretation". Hence there should be judicial restraint in this connection, and the temp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta VKSSS Maryadit vs. State of Maharashtra AIR 2001 SC 1980, this Court observed : "It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute". The same view has been take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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