Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. & Ors  INSC 467 (5
JAGANNADHA RAO J. & DORAISWAMY RAJU J.
JAGANNADHA RAO, J.
appellant Bank is the plaintiff in Suit No.410/85 which is pending on the file
of the Calcutta High Court.
respondent-debtor is yet to file its written statement.
31.12.98, an amount of Rs.31.13 crores is said to be due to the Bank.
Initially, in the above suit, a compromise decree was passed by Ajit Kumar Sen
Gupta, J. on 29.3.94.
contended by the Bank that the compromise was based upon a non-existent
agreement. On appeal, the said judgment was set aside by a Division Bench of
the High Court on 11.8.98 consisting of Ajoy Nath Ray and Dipak Prakas Kundu,
JJ. describing the said judgment as "shocking". The Bench also
was as if a contract was being made attempted to be made out for the parties
....It is no part of the duty of the Court to make an agreement for the
Bench allowed appeal, awarding costs in a sum of Rs.75,000/-.
part of the compromise, the learned Single Judge had stayed another suit on
mortgage ( O.C. (Mortgage) suit No.77 of 1991) filed by the Bank. But the Division
Bench set aside the entire compromise decree.
the suit No.410 of 1985 filed by the appellant Bank stood restored before the
learned Single Judge. In the meantime, the 'Recovery of Debts Due to Banks and
Financial Institutions Act, 1993' (hereinafter called the 'Recovery Act, 1993)
came into force in West
Bengal. It is stated
that it came into force in West Bengal on
27.4.1994. The debtor Company then filed an application T.No. 276 of 1999 that
this suit by the Bank should remain on the original side of the Calcutta High
Court and be not transferred to the Tribunal under the Act. The contention was
that on the crucial date, 27.4.1994, the suit was not pending on the original
side but the appeal was pending before the Division Bench and that under
section 31(1), appeals did not stand transferred to the Tribunal. It was
pleaded that even though the appeal was later allowed on 11.8.98 and the suit
was remanded to the Single Judge, it was not a suit "immediately
pending" on the original side of the High Court before the crucial date
i.e. 27.4.94, in the High Court, as required by Section 31 of the Act.
it was not covered by Section 31 of the Act.
was the contention in the application filed by the respondent-company seeking
retention of the suit on the original side of the High Court of Calcutta.
above application filed by the respondent- company was allowed by another
learned Single Judge on 3.9.99 and the Bank's suit was directed to be retained
in the High Court on the basis that the Act did not apply. By the same order,
the Registrar of the High Court was restrained from transferring the suit to
the above order dated 3.9.99, the Bank has preferred the present appeal by
this appeal, Sri Dhruv Mehta appeared for the appellant-Bank and contended that
the High Court erred in not transferring the Bank's suit 410/85 to the
arguments were addressed before us by Sri Shanti Bhushan, learned Senior
counsel for the respondent-company and Dr. Rajeev Dhawan, learned Senior
counsel for the guarantor. We shall deal with these contentions.
additional point has been raised before us by the learned Senior counsel for
the respondent company, Sri Shanti Bhushan that the debtor company had earlier
filed suit No.272 of 1985 against the Bank in the High Court for specific
performance of an agreement with the Bank and for perpetual and mandatory
injunctions and that that suit was integrally connected with the Bank's suit.
It was argued that inasmuch as a suit for specific performance and mandatory
injunction could not be transferred to the Debt Recovery Tribunal, this suit
filed by the Bank, namely, suit No.410/1985 must also remain in the High Court.
We asked learned Senior counsel for the Company and the learned Senior counsel
for the guarantor as to whether the said suit by the company ( suit
No.272/1985) was or was not a suit, in substance, in the nature of a
'counter-claim' and if so, why sub-sections (8) to (11) of section 19 ( as
introduced by Act 1/2000 by Parliament) could not apply and as to why we should
not hold that that suit also fell within the purview of the Act. Counsel
submitted that that suit did not fall within the provisions of the Act.
points that arise for consideration in the appeal are as follows:
Whether the suit No.410/1985 by the Bank which was disposed by judgment dated
29.3.94 and which judgment was set aside by the Bench on 11.8.98 and remanded
to the Single Judge, could not be treated as pending immediately before the
commencement of the Act on 27.4.94 ( in West Bengal) and whether it could not
be transferred to the Recovery Tribunal? (2) What is the combined effect of
Sections 18 and 31 and of the Act on pending proceedings? (3) Whether the pendency
of suit No.272/1985 filed by the debtor company against the Bank for specific
performance and for perpetual and mandatory injunctions raising common issues
between parties in both these suits was a sufficient reason for retention of
the Bank's suit No.410/85 on the original side of the High Court to be tried alongwith
the Suit No.272/85 filed by the debtor company? (4) Whether the suit No.272/85
filed by the debtor company was, in substance, one in the nature of a
"counter-claim" against the Bank and was one which also fell within
the special Act by reason of section 19(8) to (11) of the Act ( as introduced
by Amending Act 1/2000) and if that be so, whether it could still be
successfully pleaded by the respondent-company that the pendency of the
company's suit 272/85 was a ground for retention of Bank's suit No.410/85 on
the original side of the High Court? Points 1 and 2:
the Suit 410/85 filed by the Bank pending before the Single Judge on 27.4.94?
That is the crucial question.
depends on the interpretation of Sections 18, 31 and 34 of the Act.
judgment of the High Court now under appeal before us, the learned Single Judge
held that when the Act came into force on 27.4.94, the suit was not pending
before the Single Judge as the compromise decree was passed on 29.3.94 and in
fact the appeal against the said decree was pending before the Division Bench
till 11.8.98 and therefore the suit would not stand transferred to the
Tribunal. It was assumed that the suit would not get revived from its
institution and that therefore it was not a suit pending 'immediately before
the date of establishment of a Tribunal under this Act" i.e. 27.4.94, as
required by section 31(1).
also observed that thee proviso to section 31(1) permitted only appeals pending
on that date to be retained in the Civil Court (here the High Court) and that a remanded suit was not so
saved by the proviso to section 31(1). A similar argument was advanced before
us by the learned Senior counsel appearing for the respondent-company, Sri Shanti
Bhushan and for the guarantors, by Dr. Rajeev Dhawan.
Section 31(1) of the Act reads as follows:
31: Transfer of pending cases:
Every suit or other proceeding pending before any court immediately before the
date of establishment of a Tribunal under this Act, being a suit or proceeding
the cause of action whereon it is based is such that it would have been, if it
had arisen after such establishment, within the jurisdiction of such Tribunal,
shall stand transferred on that date to such Tribunal:
that nothing in this sub- section shall apply to any appeal pending as
aforesaid before any Court.
.................................." It is true that under sub-clause (c)
of Section 31, every suit or proceeding "pending before any Court
immediately before the date of establishment of the Tribunal under the
Act" shall stand transferred to the Tribunal. It is also true that under
the proviso to section 31(1), appeals pending on the date do not stand
transferred. The suit of the Bank was in fact, pending in appeal on 27.4.94.
is clear that this provision for transfer does not apply to an appeal pending
as aforesaid before any Court.
it is now well settled that an order of remand by the appellate Court to the
trial Court which had disposed of the suit revives the suit in full except as
to matters, if any, decided finally by the appellate Court. Once the suit is
revived, it must, in the eye of the law, be deemed to be pending - from the
beginning when it was instituted. The judgment disposing of the suit passed by
the Single Judge which is set aside gets effaced altogether and the continuity
of the suit in the trial court is restored, as a matter of law. The suit cannot
be treated as one freshly instituted on the date of the remand order. Otherwise
serious questions as to limitation would arise. In fact, if any evidence was
recorded before its earlier disposal, it would be evidence in the remanded suit
and if any interlocutory orders were passed earlier, they would revive.
case of a remand, it is as if the suit was never disposed of (subject to any
adjudication which has become final, in the appellate judgment). The position
could have been different if the appeal was disposed of once and for all and
the suit was not remanded.
the above principle, we are of the view that the suit 410/85 filed by the Bank
in 1985, even though it was disposed of by judgment dated 29.3.94, it stood
revived with continuity by the remand order passed by the Division Bench on
11.8.98, and cannot be treated as a freshly instituted on 11.8.98 before the
Single Judge but must, in the eye of the law, be treated as pending on the
crucial day i.e. 27.4.94.
argued that on 27.4.94, the crucial date, if the appeal was pending before the
Division Bench, the suit could not have also been pending simultaneously. The pendency
of appeal before the appellate Court may be the de facto position. But, we are
concerned here with the position in law, and as to the effect of the remand
order. Once the appeal is allowed, the intermediate events - of disposal of the
suit and the appeal - vanish into the air and the continuity of the suit before
the trial Court is restored.
is yet another important reason as to why the suit must be held as one falling
within the Act. This reason flows from Section 18 of the Act, which reads as
18: Bar of Jurisdiction:
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." The bar
of the said section, as we shall elaborate, applies and, in fact, Section 34 of
the Act gives overriding effect to the provisions of the Act.
it is well settled that it is the duty of a Court, whether it is trying
original proceedings or hearing an appeal, to take notice of the change in law
affecting pending actions and to give effect to the same. (See G.P.
Interpretation of Statutes, 7th Ed.p.406). If, while a suit is pending, a law
like the 1993 Act that the Civil Court
shall not decide the suit, is passed, the Civil Court is bound to take judicial notice of the statute and hold
that the suit - even after its remand - cannot be disposed of by it.
some statutes the legislature no doubt says that no suit shall be 'entertained'
or 'instituted' in regard to a particular subject matter. It has been held by
this Court that such a law will not affect pending actions and the law is only
prospective. But, the position is different if the law states that after its
commencement, no suit shall be "disposed of" or "no decree shall
be passed" or "no court shall exercise powers or jurisdiction".
In this class of cases, the Act applies even to pending proceedings and has to
be taken judicial notice of by the civil Courts.
Constitution Bench of this Court in Shah Bhojraj Yograj Sinha ( 1962(2) SCR 159
( AIR 1961 SC 1590) was considering a situation where a law was made ousting
the jurisdiction of the Civil
Court where a suit
words used in the statute were 'a landlord shall not be entitled to the
recovery of possession of any premises ....' These words were contained in the
Bombay Rent, Hotel and Lodging House Rates Control Act, 1947. It was held that
the provision barring a decree to be passed applied to pending suits and
applied at the time the decree was to be passed.
Constitution Bench in Mst. Rafiquennessa and Anr.
SC 1511) held that the prohibition against passing a decree for possession
would apply even at the appellate stage, unless of course, appeals were kept
outside the impact of the new Act, as in the proviso to Section 31 of the Act.
Even the appellate Court has to apply the law ousting its jurisdiction.
indeed the contention of the learned Senior counsel for the respondents, Sri Shanti
Bhushan and Dr. Rajeev Dhawan is to be accepted, a strange result would follow
inasmuch as, on a combined reading of Sections 18 and 34 of the Act, the suit
can neither be transferred to the Tribunal nor can it be decided by the learned
Single Judge in view of the clear prohibition in Section 18 of the Act. If it
is not to be transferred to the Tribunal and if it is to be retained in the Civil Court, without disposal as contended,
then there will be a stalemate. It has to be kept perpetually pending in the Civil Court and necessarily the file has to be
consigned to the record room. Or the plaint will have to be returned for
presentation before the proper court or Tribunal. That was surely not the
intendment of the Act of 1993. When this aspect was put to the learned Senior
counsel for the respondents, there was practically no answer. It was, no doubt,
faintly suggested by Dr. Rajeev Dhawan that the bar in section 18 does not
apply to remanded suits but we are unable to agree. As stated earlier, they
stand revived in law with continuity and therefore the bar under Section 18
above result is also reached by the application of the principle of purposive
regard to purposive interpretation, Justice Frankfurter observed as follows:
has an aim, it seeks to obviate some mischief, to supply an inadequacy, to
effect a change of policy, to formulate a plan of government. That aim, that
policy is not drawn, like nitrogen, out of the air; it is evidenced in the
language of the statute, as read in the light of other external manifestations
of purpose ("Some Reflections on the Reading of Statutes) 47 Columbia LR
527 at 538) (1947)" That principle has been applied to this very Act by
2000(4) SC 411). If the said principle is applied, it is clear that the
provision in section 31 must be construed in such a manner that, after the Act,
no suit by the Bank is decided by the civil Court and all such suits are
decided by the Tribunal.
it is said that Rs.52,000 crores of monies are due to Banks and financial
institutions from the borrowers.
Act of 1993 was indeed enacted to provide a speedy remedy for the recovery of
these monies and for taking these suits out of the purview of the civil Courts.
If speedy disposal is the purpose of the Act, then if the respondent's
contention is accepted, this suit 410/85 instead of getting transferred to the
Tribunal for expeditious disposal, would perpetually remain pending on the
original side of the Calcutta High Court because of the prohibition in section
18 of the Act. Surely, that would place the Bank in a worse position after the
1993 Act than before inasmuch as before the Act, there was at least the
possibility of the Bank's suit being decided by the civil Court on some future
day, however, remote.
argument was advanced by Dr. Rajeev Dhawan that the proviso to section 31
retained appeals in the Civil
Court and hence the
suit remanded in appeal would also get retained. It was also argued that there
was no specific provision regarding remanded suits and this was a case of a 'causus
omissus' and the said omission in the statute could not be filled by judicial
interpretation. Otherwise, it would amount to judicial legislation. That was
cannot agree with either contentions. The remanded suit cannot remain in the Civil Court with no chance of disposal. Again,
our decision that the restoration of the suit is with continuity from the date
of original institutions of the suit does not amount to legislation but is the
result of the application of a fundamental principle of law applicable to the
civil procedure. It cannot therefore be said that we have encroached upon the
jurisdiction of the legislature.
this context the following words of Justice Holmes are apposite. He said:
recognise without hesitation that Judges do and must legislate, but they do so
only interstitially; they are confined from molar to molecular motion"
(1917) (Southern Pacific Co. vs. Jensen 244 U.S. 205 at 221).
Justice Cardozo said that though the powers of interpretation of the Courts are
narrow, yet they can fill up gaps. He said:
doubt, the limits for the Judge are narrower. He legislates only between gaps. He
fills the open spaces in the law" (B.Cargozo, The Nature of the Judicial
Process (1921) at p. 131).
present case, we do not have to legislate, even interstitially.
is yet another aspect of the matter. Even assuming that the suit was not
pending 'immediately' before the establishment of the Tribunal before the
Single Judge but came before him on remand after 27.4.94, the crucial date, and
even assuming that the Registrar of the High Court could not have transferred
the suit to the Tribunal on 27.4.94 as the appeal was pending before the
Division Bench, it would, in view of the prohibition in section 18, be
necessary for the High Court to transfer the Bank's suit under Article 227 of
the Constitution of India to the Tribunal.
the aforesaid reasons, we hold that the principle of purposive interpretation
is to be applied to sections 18 and 31 of the Act and that suit 410/1985 filed
by the Bank in 1985 and which stood remanded by the appellate Court on 11.8.98
must in the eye of the law be deemed pending before the Single Judge and that
it would stand transferred to the Tribunal. The High Court was, therefore, in
error in retaining the same on the original side. Points 1 and 2 decided in favour
of the appellant.
3 and 4:
stated earlier, learned senior counsel for the respondents contended that the
issues arising in the suit 410/55 filed by the Bank are integrally connected
with the issues arising in the other Suit No.272 of 1985 filed by the
respondent company against the Bank and that the said suit being one for
specific performance, and perpetual and mandatory injunctions could not be
tried by the Tribunal and that consequently, the suit by the Bank 410/85, which
contains some common issues must be retained in the Civil Court (i.e. the High
senior counsel was then asked by us as to what in reality was the
"substance" of the suit 272 of 1985 filed by the Company against the
Bank and whether, it was indeed one falling within the purview of the 1993 Act
as amended by Act 1 of 2000? The answer by the counsel was that it was not. We
shall therefore consider this aspect in some detail.
shall first refer to the averments of the 1st respondent in its suit 272 of 1985
filed against the Bank.
plaint states that the plaintiff acquired the Tea estate from Kamini Tea Co.
(Pvt.) ltd. in or about April, 1979, under a registered deed, that initially
the shares in the plaintiff's company were held by 1st and 2nd plaintiffs, that
at the instance of this Bank, the plaintiff 3 purchased the shares on 13.1.82,
that in or about December 1981 and January 1982, it was "duly agreed"
between the Bank and the Tea Company and the plaintiffs 3 and 4 and by
plaintiff 2 that (i) 'defendant would not charge interest on its outstanding
upto the season 1981-82 since July 1, 1981, (ii) that the said outstanding dues
would be paid by plaintiff company at Rs. 75,000 p.m., (iii) that the Bank
would extend credit facilities according to its needs from the season 1982-83,
which advance interest would be recovered out of the proceeds of sale of Tea.
It was also alleged that these terms would appear from the records and
correspondence between the parties and also from the course of conduct and/or dealings.
A dispute is also raised about the correctness of the amount claimed by the
Bank as per its accounts. It was pleaded that a certain amount of Rs.1,55,951
paid by the Bank to workmen for 81-82 season had to be adjusted for 1981-82
which was a free-interest period, that similarly credit had to be given for
Rs.64,083.10 for the season 1982-83, that the sum of Rs.7 lakhs sanctioned for
1983-84 at 13% interest was repayable by annual instalment of Rs.1 lakh from
June 1984 and that excess interest at rate 3% was charged, that interest for
1984-85 on Rs.7 lakhs was to be at 15% p.a. and not 18% p.a., that for the year
1985- 86, the Bank advanced Rs. 5.22 lakhs and was charging 15% and it
illegally stopped or suspended advances. It was contended that the correct
position of the amounts due was shown in Schedule D of the plaint and that on
the arrears due upto 81-82, no interest was to be charged, the moratorium was
unilaterally withdrawn on 8.4.85 by the Bank, that interest could not have been
charged from 1.7.81 to 31.3.85, that the letter 'E' of the plaintiff company
agreeing to pay interest was void/voidable, that the demand by letter dated
11/12-4- 85 for Rs.3,31,25,054.27 inclusive of interest upto 31.3.1985 was
wrong, mala fide and inflated. It was contended that the Bank guarantee for
Rs.72,330 could not be encashed, that the defendant promised to render
financial assistance and could not have stopped it and that the principle of
promissory estoppel applied.
4 was a shareholder Director and plaintiffs 3 and 4 stood guarantee only for
lawful dues, it was said. The plaint then referred to certain payments by the
plaintiff upto a sum of Rs.14,25,000. It was said that the plaintiff was
entitled to specific performance of the agreement as pleaded in para 4 of the
plaint and to a perpetual injunction that the Bank should not charge interest
upto 1981-82 and that with effect from 1.7.81, that only Rs.75,000 per month
could be recovered. A mandatory injunction was sought for further financial
assistance at less than Rs.10/- per Kg. per season w.e.f. 1985-86 season, for
damages allegedly suffered by plaintiff and for rectification of accounts and
to declare the letter of demand 'D' dated 8.4.85 as void.
the above, it will be noticed that the plea of the Company is that there is an
agreement not to charge interest and that that agreement is to be enforced,
that interest is not liable to be charged on arrears or interest cannot be
charged at a higher rate, that only Rs.75,000 is to be recovered per month and
that the damages suffered by plaintiff are to be deducted and further financial
assistance is to be given in future.
view, the above pleas raised by the respondent company are all inextricably
connected with the amount claimed by the Bank. The plea of the company is that
interest is not to be charged or is to be charged at a lesser rate, that instalments
are to be permitted and more monies should have been advanced. In our view,
these claims made by the Company in its suit 272/85 against the Bank amount to
'counter claim' and fall within sub-clauses (8) to (11) of section 19 of the
Act (as introduced by Act 1/2000).
plea for deduction of damages is in the nature of a 'set off' falling under
sub-clauses (6) and (7) of section 19.
(6) to (11) of section 19 read as follows:
Where the defendant claims to set- off against the applicant's demand any
ascertained sum of money legally recoverable by him from such applicant, the
defendant may, at the first hearing of the application, but not afterwards
unless permitted by the Tribunal, present a written statement containing the
particulars of the debt sought to be set- off.
The written statement shall have the same effect as a plaint in a cross- suit
so as to enable the Tribunal to pass a final order in respect both of the
original claim and of the set-off.
defendant in an application may, in addition to his right of pleading a set-off
under sub-section (6), set up, by way of counter-claim against the claim of the
applicant, any right or claim in respect of a cause of action accruing to the
defendant against the applicant either before or after the filing of the
application but before the defendant has delivered his defence or before the
time limited for delivering his defence has expired, whether such counter-claim
is in the nature of a claim for damages or not.
counter-claim under sub-section (8) shall have the same effect as a cross-suit
so as to enable the Tribunal to pass a final order on the same application,
both on the original claim and on the counter-claim.
The applicant shall be at liberty to fine a written statement in answer to the
counter-claim of the defendant within such period as may be fixed by the
Where a defendant sets up a counter-claim and the applicant contends that the
claim thereby raised ought not to be disposed of by way of counter-claim but in
an independent action, the applicant may, at any time before issues are settled
in relation to the counter- claim, apply to the Tribunal for an order that such
counter-claim may be excluded, and the Tribunal may, on the hearing of such
application make such order as it thinks fit." Sub-clause (6) says that a
'set-off', if claimed, can be adjudicated by the Tribunal. Sub-clause (7) states
that the written statement pleading a set-off shall have the same effect as a
plaint in a cross-suit to be adjudicated by the Tribunal. Similarly, sub-
clause (8) of section 19 permits a defendant to make a 'counter-claim' by way
of an application and sub-clause (9) of section 19 states that such a
'counter-claim' shall have the same effect as a 'cross-suit' so as to enable
the Tribunal to pass a final order on the same application, both on the
original claim and on the counter claim as a 'cross-suit'. Sub-clause (11) of
section 19 is important and it permits the Bank or financial institution to
apply to the Tribunal that particular claim raised by the debtor against the
Bank or financial institution, as the case may be, ought not to be disposed of
by way of a counter-claim but that the debtor must be directed to file an
independent action. The Tribunal would then consider whether the debtor should
be directed to file an independent action in regard to any part of the debtor's
view, the Company's suit 272/85 in so far claims a relief for specific
performance, perpetual and mandatory injunctions, it is in substance in the
nature of a counter-claim under sub-clauses (8) to (10) of section 19 and are in the nature of a counter-claim. The
plea for deduction of damages is in the nature of a set-off falling within
section 19(6) and (7). Both are equated to cross-suits. If a set-off or a
counter claim is to be equated to a cross suit under section 19, afortiori
there can be no difficulty in treating the cross-suit as one by way of set-off
and counter claim, and as proceedings which ought to be dealt with
simultaneously with the main suit by the Bank. In fact, the Bank has not
objected to such a course. Indeed, section 19(11) says that if any particular
counter-claim raised in the suit 272/85 cannot be decided by the Tribunal while
deciding the Bank's suit, the defendant may apply to the Tribunal for exclusion
of such a counter-claim. But such a question does not arise in this case. In
our view, in the context, the word 'counter-claim' in section 19(8) to (11)
which is equated to a cross-suit, includes a claim even if it is made in an
independent suit filed earlier. An agreement not to charge interest, the
specific performance of which is claimed is nothing but a plea that the Bank
could not charge interest. A permanent injunction directing the Bank not to
charge interest because of an alleged agreement in that behalf is likewise a
plea that no interest is chargeable. So far as the plea for further financial assistance
is concerned, it is also, broadly, in the nature of a 'counter-claim'. All
these fall under section 19(8) to (10). Again, the plea for deducting 'damages'
though raised in the suit is indeed broadly a plea of "set off"
falling under sub-clause (6) and (7) of section 19.
the suits, the one by the Bank against the respondent (suit 410/85) and the
other by the debtor against the Bank (suit 272/85) which raises claims or pleas
in the nature of set-off or counter-claim are interconnected. The respondent's
suit falls under sub- clauses (6), (7) and (8) to (11) of section 19, as stated
above. Our decision in regard to the real nature of suit 272/85 has become
necessary in the context of a plea by the debtor-company that the company's
suit 272/85 is liable to be retained in the civil Court and on account of the
plea that the connected suit by the Bank 410/85 is also to be retained.
plea, as shown above, cannot be accepted. Thus, both the suits are suits
falling within the Act.
therefore, direct the Bank's suit 410/85 to be transferred by the Registrar,
Calcutta High Court to the appropriate Tribunal under the Act. So far as the
debtor-company's suit 272/85 is concerned, action has to be taken likewise by
the Registrar in the light of our finding which finding has become necessary in
view of the contention on behalf of the debtor company before us, as explained
the aforesaid reasons, we hold under Point 3 that the pendency of the company's
suit 272/85 in the High Court is not a ground for retaining the Bank's suit
410/85 in the Calcutta High Court. The suit 272/85 filed by the debtor company
is also a suit to be necessarily tried only by the Tribunal. The pendency of
the Company's suit 272/85 in the High Court is no reason for keeping the Bank's
suit 410/85 in the High Court. The suit 410/85 is liable to be transferred to
the Tribunal. Incidentally, we also hold that even suit 272/85 is to be tried
only by the Tribunal.
appeal is allowed. The order of the learned Single Judge is set aside and suit
410/85 is directed to be transferred by the Registrar, High Court to the
light of our finding as to the real nature of the company's suit 272/85, it
will be for the Registrar of the High Court to pass appropriate orders. We hope
that appropriate orders will be passed in relation to suit 272/85
expeditiously, at any rate, within one month from today.
direct the respondent-company to file its written statement in suit 410/85
within one month from today. We also direct the Tribunal to dispose of both the
suits within a period of six months from today, the suits being very old suits
of 1985. There will be no order as to costs.