TMI Blog1999 (5) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... /- together with interest thereon on the following allegations. The petitioner represented to the bank that he was carrying on a business under the name and style of Mukhoty Engineering Works at 43/6/24, Jhill Road, Calcutta. At the request of the petitioner, on or about 24th May, 1994 the bank granted a credit facility in the nature of bill discounting facility in favour of the petitioner and/or his proprietorship firm at the bank's Burrabazar branch office to the extent of Rs. 21,93,500/- at the rate chargeable in respect of such facility. In pursuance of the grant of the said credit facility, the petitioner opened a current account in the Burrabazar branch office of the opposite party bank in the name of the said proprietorship firm of the petitioner. The bank granted the credit facility to the extent of Rs. 20,97,712/- by discounting a bill of the petitioner being Bill No. 326 dated 30th April, 1994 drawn on the opposite party No. 2, Tata Iron and Steel Company Limited, Jamshedpur for a total sum of Rs. 21,93,500/-. The petitioner also drew bill of exchange upon Tata Iron and Steel Company in favour of the opposite party bank for a sum of Rs. 21,93,500/-. As per the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner to the bank under the said bill purchase facility which the petitioner has failed and neglected to pay in spite of demands. 3. On 10-8-94, on the prayer of the bank, the Tribunal was pleased to pass an interim order of injunction against the petitioner. 4. On 14-9-94, the petitioner filed two applications. One of them was under Section 17 read with Section 22 of the Act of 1993 and the rules framed thereunder praying for (i) rejection of the bank's application under Section 19(ii) taking the same off the file and (iii) also for stay of the hearing of the said application and all proceedings thereunder before the Tribunal on the ground that the said application as framed was not maintainable before the Tribunal because of the fact that the alleged claim of the bank having arisen out of the alleged fraudulent action of the petitioner could not relate to a debt as defined in Section 2(g) of the Act of 1993 and was thus not amenable to the jurisdiction of the Tribunal. 5. By the other application that was filed on 14-9-94, the petitioner prayed for stay of all proceedings before the Tribunal till the disposal of the criminal case initiated against the petitioner and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne that was filed by the petitioner for review of the order dated 20-2-95 and the application that was filed by the petitioner on 15-2-95 for vacating the interim order dated 10-8-94. But hearing of both the applications was adjourned at the instance of the petitioner till 8-5-95 by the Tribunal by order No. 23 dated 2-5-94. 9. On 8-5-95 both sides were present with their respective lawyers but a prayer was made on behalf of the petitioner for another adjournment, for a period of two months, of the hearing of both the application dated 15-2-95 and his review petition dated 20-3-95 on the ground that he would move the High Court against the order No. 22 dated 2-5-95 whereby the Tribunal rejected his application for stay. Upon hearing this application for adjournment, the ld. Tribunal was pleased to reject the same by the order No. 24 dt. 8-5-95 and directed the petitioner to proceed with the hearing of the applications that were fixed for hearing on that date. Later on that very date, when the case was taken up for hearing of those two petitions, a petition was again filed on behalf of the petitioner for adjournment on the ground that his senior advocate Mr. Udayan Sen was physic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the criminal case. It is further submitted by Mr. Mukherjee that the petitioner being aggrieved by the said order dated 2-5-95 was entitled to pray for an adjournment of hearing of his two other applications dated 15-2-95 and 20-3-95 which were scheduled to be heard on 8-5-95 before the Tribunal so that he could move the High Court against the order dated 2-5-95 and bring the stay order and as such the ld. Tribunal was not at all justified in refusing to grant that adjournment. It is submitted that the ld. Tribunal in refusing to grant the adjournment by order No. 24 dated 8-4-95 acted unreasonably in disbelieving the intention of the petitioner to move the High Court only because of the fact that the petitioner did not already move the High Court during the period of six days that intervened between the date of passing of the impugned order dated 2-5-95 and 8-5-95, the date on which the adjournment was prayed for. It was further submitted that by the impugned order No. 25 dated 8-5-95 the Tribunal was not at all justified in refusing to grant the further adjournment that was sought for on the ground of physical unfitness of the senior advocate of the petitioner. 11. Mr. P. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promissory note which is said to have been executed by the petitioner. According to Mr. Banerjee, the allegations made in the application under Section 19 of the Act would leave no room for doubt that the bank did make out a prima facie case for recovery of a debt within the meaning of Section 2(g) of the Act against the petitioner. The alleged debt is said to be based on the demand promissory note and has got nothing to do with the question as to whether the bill of exchange produced by the petitioner was forged or not. Mr. Banerjee contends that the petitioner might have practised fraud upon the bank so as to induce it to advance the loan on the basis of which the petitioner is said to have incurred the debt within the meaning of the Act for recovery of which the application under Section 19 was filed by the bank. The fact that some forged documents were utilised by the petitioner in inducing the bank to advance the loan does not affect the existence of the debt for recovery of which the application under Section 19 was filed before the Tribunal. Accordingly Mr. Banerjee submits that even on merits the said application was quite within the scope of the Act and jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14-9-94 for simple stay of the proceeding till the disposal of the criminal case was hit by the mischief of principles of res judicata inasmuch as the petition which was disposed of by that order dated 20-2-95 did also contain a prayer for stay and the Tribunal had assigned reasons as to why it did not consider it fit to stay the proceeding till the disposal of the criminal case. Mr. Banerjee further submitted that the prayer for review of the said order dated 20-2-95 was frivolous and motivated aimed only at delaying the disposal of the proceeding before the Tribunal, According to Mr. Banerjee, there was no ground worth the name which could justify a review of that order. It is submitted that there is no error apparent on the face of the order dated 20-2-95 because the petitioner might not have filed any written statement in this proceeding before the Tribunal but it is not the case of the bank that the demand promissory note on which the present proceeding is based was also a forged one. The forgery related to the signature of the opposite party No. 2 appearing in the bill of exchange and not to the promissory note purported to have been executed by the petitioner in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tay of the further proceeding before the Tribunal till the said application was decided. The Tribunal there was constituted under the Act of 1993 and on the aforesaid application the Tribunal passed order directing that the jurisdictional point should be decided along with the main issues raised in the proceeding. Being aggrieved by such orders, the loanees came before the High Court under Article 227 of the Constitution and a similar preliminary objection was raised on behalf of the respective banks to the effect that appeal lay before the appellate Tribunal against the said orders of the Tribunal so much so that alternative remedy was there before the aggrieved party against the particular order of the Tribunal and the High Court overruled this preliminary objection. In so doing, the High Court having regard to the object and scheme of the Act of 1993 and the relevant provisions thereof took the view that any order and every order that would be passed by the Tribunal would not be appealable under Section 20 of the Act and that the provisions for appeal under the Act shall be applicable only in case a final order is passed by the Tribunal. In the instant case, the impugned orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides for the procedure in respect thereof. The jurisdiction of the Civil Courts to try cases in respect of debts due to bank stands ousted by the Act. It is indeed not clear as to how the allegations of fraud made in the application under Section 19 in relation to the bill of exchange and some other documents would have the effect of ousting the jurisdiction of the Tribunal to entertain the application. There is no provision in the Act of 1993 analogous to those under Order 7, Rule 11, C.P.C. for summary rejection of an application under Section 19 of the Act. Even then it is needless to comment that if the Tribunal finds on the face of the averments made in the application that it does not have any jurisdiction to entertain and decide the application, it is certainly within its competence to refuse to grant the relief but not to throw the application out at the threshold. Want of jurisdiction has to be pleaded in the written statement so as to give rise to a preliminary issue on a question of law and in the instant case the petitioner has not chosen to file any written statement in the proceeding before the Tribunal. In AIR1997Cal96 , it has been held that there is no discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed. There is also evidently no mistake of law apparent on the face of the order dt. 20-2-95. In the circumstances, how a review could be maintainable is beyond my comprehension. The petitioner kept the review petition dt. 20-3-95 pending and proceeded with the hearing of his application dated 14-9-94 for stay of the proceeding before the Tribunal till the disposal of the criminal case. The stay was really refused to be granted by the Tribunal on 20-2-95 by its order No. 17 when it rejected the petitioner's application dated 14-9-94 for rejection of the application and, presumably in the alternative, for stay of the proceeding till the disposal of the criminal case. By the subsequent application dated 14-9-94 for stay, the petitioner can be said to have virtually agitated the selfsame question of stay on 2-5-95 and the Tribunal cannot be faulted for its having rejected that application by the impugned order No. 25. Indeed, there is no scope for the petitioner being embarrassed in his defence in the criminal case in case he has to file written statement in the present proceeding. The Tribunal may not be a Civil Court in the strict sense of the term. But the proceeding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles that should be followed in determining which of the proceeding as between a civil and a criminal proceeding should be stayed. Moreover, even if it be assumed for the sake of argument that these observations do not constitute the ratio there would be no room for doubt that they would have binding force as obiter dictum of the Supreme Court which relate to matters of law. It is really not understood how Mr. Banerjee could argue that M.S. Sheriff's case does not lay down any binding proposition of law governing the question of grant of stay vis-a-vis criminal and civil proceeding. 15. In (1988)IILLJ470SC , the Supreme Court held that it is neither possible nor advisable to evolve a hard and fast, straight jacket formula valid for all cases and of general application without regard to the particularities of the individual situation on the question as to whether as between a disciplinary proceeding against a delinquent person and a criminal case against him which one should be stayed. The Supreme Court categorically observed in paragraph 6 that it does not intend to lay down any general guideline on this point. In the reported case, however, the disciplinary procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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