Vakrangee Softwares Limited, Dinesh Nandwana and Mrs. Jyoti Dinesh Nandwana vs Central Bank of India, Nariman Point Branch

S.B. Mhase, J.—This appeal is directed against the order passed on 17th March 2008 in Notice of Motion No. 3588 of 2007 in Suit No. 1251 of 2000. In this notice of motion the plaintiff - appellant is seeking a mandatory direction calling upon the defendant No. 1 to withdraw the name of the plaintiff from the list of "willful defaulters" and to issue injunction restraining the defendant from proceeding with a letter dated 27th November 2006 and from taking any steps threatened therein. For the sake of brevity and to avoid confusion, it is clarified that in this judgment the Appellants are referred to as the Plaintiff while the respondent - Central bank of India is referred to as the Defendant.

It is also clarified that the suit No. 1250 of 2000 has been filed by the Appellant -

Plaintiff as against the Respondent - Defendant in this Court, while the Respondent - Defendant has filed Original Application No. 770 of 2001 before the Debt Recovery Tribunal, Mumbai.

In the suit No. 1251 of 2000 the Plaintiff has filed Notice of Motion No. 3588 of 2007 as stated in the earlier part of this judgment, and since in the said Notice of Motion the learned Single Judge has passed an order of return of plaint of suit No. 1251 of 2000 to be presented to the Debt Recovery Tribunal, Bombay with a further direction that the parties shall appear before the Debt Recovery Tribunal on 21st April 2008 for further direction and it will be open to the Plaintiff to pursue application for interlocutory relief before the Debt Recovery Tribunal. Thus, in stead of granting the interim relief as prayed by the Plaintiff, the plaintiff''s suit has been returned by the learned Single Judge relying upon the two judgments of the Apex Court, namely, United Bank of India v. Abhijit Tea Co. (P) Ltd) and Industrial Investment Bank of India (I) Ltd and Anr. v. Marshal''s Power & Telecom (I) Ltd reported in 2007(II) M.L.J. 796.

The plaintiff''s suit is that, that in or about June 1995, the Plaintiff has approached the Defendant for cash credit facility or overdraft facility and the Defendant by its letter dated 4th July 1995 sanctioned and granted the cash credit facility in a sum of Rs. 1 crore. The Plaintiff Nos. 2 & 3 are the guarantors of the Plaintiff No. 1 and they have executed the deed of guarantee in favour of the Defendant. Apart from the deed of guarantee executed by the Plaintiff Nos. 2 & 3, the Plaintiff Nos. 1 to 3 have mortgaged the industrial galas, residential flats as stated in Exhibits "A" & "B" to the plaint. The Plaintiff No. 2 has pledged 1 lac shares of the Plaintiff No. 2 with the Defendant bank so as to secure the cash credit facility advanced to the Plaintiff No. 1 as described in Exhibit-"C" to the plaint. The Plaintiff was in arrears of Rs. 1,96,59,600 as on 1st October 1999, and therefore by a letter dated 29th October 1999, the Defendant called upon the Plaintiff to pay the said amount. The Plaintiff decided to have One-Time-Settlement with the bank and therefore submitted a proposal that the Plaintiff is ready to offer Rs. 1.61 crores as a full and final settlement of the C. C. Account. The bank was not ready to settle the matter with this amount and asked the Plaintiff to enhance the settlement amount. Therefore, the Plaintiff by its letter dated 15th December 1999 raised the amount from Rs. 1.61 crores to 1.70 crores, and since it was not settled the Plaintiff further raised the offer by letter dated 31st December 1999 to Rs. 1.75 crores and the said offer was accepted by the bank by its letter dated 31st December 1999 and it was agreed between the Plaintiff and the Defendant that by way of full and final settlement of account the Plaintiff shall pay an amount of Rs. 1.75 crores without interest within a period of three months from the date of this letter, i.e., the Plaintiff was to pay the amount of Rs. 1.75 crores upto 31st March 2000. It was further agreed that the deposit of Rs. 25 lacs held by the Defendant bank in "No-Lien Account" shall be adjusted against the loan amount of the Plaintiff, and there was condition that if the Plaintiff fails to pay the settlement amount as per the terms provided by the bank in its letter dated 31st December 1999, all the concessions granted by the bank under the One-Time-Settlement Agreement shall stand withdrawn and immediate steps will be initiated for recovery of the entire loan amount by filing a suit. The Plaintiff has communicated the acceptance of the compromise proposal on terms specified, and returned a copy of the letter dated 31st December 1999 duly signed. Thus, according to the Plaintiff novation of contract has taken place and a fresh contract in respect of the payment of loan, as stated above, has come into force. The Plaintiff further averred that the Defendant adjusted the amount of Rs. 25 lacs held by it in the "No-Lien Account" towards the loan account of the Plaintiff. Thereafter the Plaintiff by his letter dated 8th February 2000, 14th February 2000 and 21st February 2000 submitted cheques of Rs. 5 lacs, Rs. 5 lacs and Rs. 25 lacs respectively towards the payment of loan amount and requested the Defendant bank to accept the said amount and credit the same towards the One- Time-Settlement Agreement. The Defendant has accepted the amount of Rs. 5 lacs and Rs. 5 lacs submitted along with the letters dated 8th February 2000 and 14th February 2000, however, the amount sent along the letter dated 21st February 2000, i.e., Rs. 25 lacs, was not accepted by the Defendant bank towards the loan account of the Plaintiff because by letter dated 16th February 2000, the Defendant withdrew from the One-Time- Settlement Agreement dated 31st December 1999 and directed the plaintiff to deposit the total amount of Rs. 1,92,94,093/- as on the date of the notice inclusive of Rs. 25 lacs received on 12th January 2000 and Rs. 5 lacs received on 10th February 2000 together with interest @ 20.25 % per annum till the payment in full. Because according to the Defendant there was substantial increase in the value of the shares pledged by the Plaintiff No. 2 with the Defendant. The Plaintiff thereafter on 28th February 2000 and 2nd March 2000 called upon the Defendant to authorise the officials to get in touch with the advocates of the Plaintiff to receive the balance amount of Rs. 1.15 crores and complete necessary formalities including the discharge of securities pledged, and for that purpose the Plaintiff purchased and faxed a copy of the Pay Order of Rs. 1.15 crores in favour of the Defendant. Since the Plaintiff has found that the Defendant- bank has resiled from the agreement of One-Time- Settlement even though the Plaintiff was ready and willing to perform his part of the contract or agreement, the Plaintiff found that the bank is not releasing the shares pledged and the properties mortgaged, the Plaintiff filed a suit on or about 16th March 2000, mainly claiming the relief that the bank shall accept the remaining amount of Rs. 1.15 crores and release the properties described in Exhibits - "A", "B" and "C" to the plaint. In short, it is a suit for specific performance, redemption of the mortgaged immovable properties and release of the pledged shares.

While the suit was pending, the bank issued a letter dated 27th November 2000 calling upon the Plaintiff to pay an amount of Rs. 252.78 lacs upto 25th June 2001 and further calling upon the Plaintiff that why he should not be declared as defaulter. Therefore, the Plaintiff moved Notice of Motion No. 1044 of 2000. In the said Notice of Motion, while giving limited protection to the Plaintiff, the Defendant was directed to initiate action for recovery of its dues within a period of six weeks as against the Plaintiff.

The Defendant thereafter in view of the directions given in Notice of Motion No. 1044 of 2000 filed Original Application No. 770 of 2001 before the Debt Recovery Tribunal, Mumbai. In this application the Defendant bank has made a reference to the documents on the basis of which the cash credit facility has been advanced to the Plaintiff and securities taken by the Defendant bank for the said loan. What is important to be noted, on going through Original Application No. 770 of 2001 and suit of the Plaintiff it is revealed that there is no dispute between the Plaintiff and the Defendant in respect of the advancement of loan of Rs. 1 crore towards the CC. Account No. 159. Both of them have equally admitted that the securities and deed of guarantees executed by the Plaintiff Nos. 1 to 3. Therefore so far as the first part of the transaction between the Plaintiff and the Defendant is concerned, namely, the advancement of loan- cash credit facility and the securities offered by the Plaintiff to the Defendant bank, there is no dispute between the Plaintiff and the Defendant. What is further important to be noted is that, that the plaintiff''s claim that on 31st December 1999 there was an agreement between the Plaintiff and Defendant in respect of CC. Account No. 159 by way of a full and final settlement is not in dispute. It is further accepted that the amount of Rs. 25 lacs held in the "No-lien account" has been adjusted by the bank towards the loan account as per One-Time-Settlement Agreement. The amount of Rs. 5 lacs and Rs. 5 lacs tendered by the Plaintiff along with the letter dated 8th February 2000 and 14th February 2000 have been equally adjusted towards the loan account. It is only on 16th February 2000 the bank resiled from the One-Time-Settlement Agreement. Thereafter the dispute has started between the Plaintiff and Defendant.

So far as the resilement of the Defendant bank from the One-Time-Settlement Agreement is concerned, the bank''s case is that the said settlement was arrived at because of certain misrepresentations made by the Plaintiff. The bank has pleaded that the Plaintiff painted a dismal picture of the financial condition of the Plaintiff and therefore the bank entered into One-Time-Settlement Agreement, however the bank subsequently found that the plaintiff''s performance in the market was good and the price of the shares pledged by the Plaintiff with the bank has gone up and the Plaintiff has earned a profit of Rs. 1.70 crores and that the Plaintiff has distributed the dividend of 10% to its shareholders. Therefore, the Defendant bank has resiled from One-Time-Settlement Agreement and accordingly has communicated to the Plaintiff on 16th February 2000. Therefore the Defendant bank has claimed the entire amount of the loan ignoring the One-Time-Settlement Agreement.

The Plaintiff has filed a written statement in Original Application No. 770 of 2001 before the Debt Recovery Tribunal, wherein the Plaintiff has stated in defence the said One- Time-Settlement Agreement and in addition to that the Plaintiff has claimed an amount of Rs. 4.53 crores by way of damages for not releasing the mortgaged properties and pledged securities with the Defendant bank. It is important to note that the claim of redemption and release of the pledged properties by way of counter claim has not been made by the present Plaintiff in written statement which has been filed in Original Application No. 770 of 2001.

Thus, from the pleadings of the parties as reflected from the plaint and Original Application No. 770 of 2001 and the written statements filed by the Plaintiff and Defendant in respective proceedings we find that the success of the Plaintiff depends upon the agreement dated 31st December 1999, on the fact that it was undisputedly partially acted upon by the Defendant and on the fact that the plaintiff is further ready and willing to perform his part of the contract as per One-Time-Settlement Agreement. The success of the Defendant depends upon the fact that the One-Time-Settlement Agreement which was arrived at and accepted by the Defendant bank on 31st December 1999, was accepted by the Defendant bank because of the dismal financial picture placed by the Plaintiff and to that effect the Defendant was induced to enter into the said One-Time-Settlement Agreement by making misrepresentations, and therefore the said contract can be resiled by the Defendant at his option because the said agreement or contract was entered into because of the misrepresentations made by the Plaintiff which the Defendant believed to be true. So far as the claim of the Plaintiff made in the written statement of Original Application No. 770 of 2001 for an amount of Rs. 4.53 crores for damages is concerned, it is based upon failure of the Defendant to obey the One-Time-Settlement Agreement for valid reasons. This is the factual position by and large in between the parties. This analysis has been carried out on the basis of the pleadings generally.

When the suit and Original Application No. 770 of 2001 both were pending the Defendant bank issued a letter dated 27th November 2006 to the Plaintiff calling upon the Plaintiff why his name should not be listed as "willful defaulter" and informed to the Reserve Bank of India and why the further steps as threatened in the said letter should not be taken. Therefore the Plaintiff filed Notice of Motion No. 3588 of 2007 which was decided by the learned Single Judge on 17th March 2008 and therefore the present appeal before this Court.

When the Plaintiff has approached this Court by Notice of Motion No. 3588 of 2007 to restrain the Defendant from acting upon the letter dated 27th November 2006 and while Notice of Motion was being heard, the learned Counsel for the Defendant submitted before the learned Single Judge that the suit itself would have to be transferred to the Debt Recovery Tribunal in the exercise of the powers of this Court u/s 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The submission of the Defendant is that the Plaintiff has already raised a counter claim before the Debt Recovery Tribunal in an amount of Rs. 4.53 crores and that the claim in the suit before the Court is in essence the defence to Original Application No. 770 of 2001 filed before the Debt Recovery Tribunal. The contention therefore is that in exercise of the powers conferred by Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 the suit would have to be transferred before the Debt Recovery Tribunal and it was for the Debt Recovery Tribunal to consider the application made in Notice of Motion.

The learned Single Judge while considering the submission of the Defendant has considered the definition of the debt u/s 2(g) and the provisions of Section 19(6) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and has referred to two judgments of the Apex Court (mentioned supra) and has passed the impugned order returning the plaint.

In this Court when the matter was being thoroughly scrutinised, the learned Counsel for the Defendant realised that the order passed by the learned Single Judge cannot be sustained by taking recourse to Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, and therefore the learned Counsel for the Defendant gave a concession that the Defendant is not relying upon the submission made before the learned Single Judge to transfer the proceeding pending before this Court to the Debt Recovery Tribunal in view of the provisions of Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. He agreed that the provision of Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 would apply to the cases instituted prior to the coming into force of the said Act and after the coming into force of the said Act, which are covered u/s 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Therefore, he submitted that Original Application No. 770 of 2001 which has been filed by the Defendant is a proceeding which cannot be filed in this Court and if such a proceeding is filed before this Court either coming into force of the said Act and/or after the coming into force of the said Act, such proceeding stand transferred in view of the provisions of Section 31 read with Section 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. In short, he submitted that taking recourse to Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 the suit filed by the Plaintiff cannot be transferred to the Debt Recovery Tribunal. Therefore he submitted that the ground as raised before the learned Single Judge by the Defendant is not pressed in service for the justification of the order in question. However, he submitted that the order passed by the learned Single Judge is just and proper. He submitted, by making reference to provisions of Sub-sections (7) to (11) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, that the plaintiff''s claim is in the nature of set-off and counterclaim and that is intrinsically connected with the cause of action which has been raised in Original Application No. 770 of 2001 and therefore this Court can transfer the plaintiff''s suit under an inherent power u/s 151 of the Code of Civil Procedure, 1908 to the Debt Recovery Tribunal. In support of his contentions the learned Counsel for the Defendant relied upon the decisions in United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, and Industrial Investment Bank of India (I) Ltd and Anr. v. Marshal''s Power & Telecom (I) Ltd. reported in 2007(II) M.L.J. 796 and State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007(2) Mh.L.J . 787 and Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, and M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, , and Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , and unreported judgment of this Court in the matter of Iridium India Telecom Ltd v. Motorola Inc (Decision dated 30/4/2004 in Appeal No. 702 of 2003 of Original Side.)

The learned Counsel for the Appellant - Plaintiff has challenged the impugned order on several grounds. The learned Counsel for the Appellant submitted that the order of return of the plaint has been passed by the learned Single Judge while hearing a Notice of Motion filed by the Plaintiff. According to the Appellant the plaint can be returned by the Court under Order- VII, Rule-10 of the Code of Civil Procedure, 1908 and therefore the Court has come to the conclusion that this Court has no jurisdiction to entertain the suit and that the Debt Recovery Tribunal is the forum where the plaint should have been presented. However, he submitted that the learned Single Judge has not recorded a finding that the learned Single Judge in the facts and circumstances of the present case has no jurisdiction to entertain and decide the suit in question. Therefore, He submitted that the order of return of plaint passed by the learned Single Judge without recording a finding that the learned Single Judge has no jurisdiction to entertain the suit is not in consonance with Order-VII, Rule-10 of the Code of Civil Procedure, 1908. He further submitted that if the learned Single Judge was desirous of considering the preliminary issue of jurisdiction, then the learned Single Judge should have followed the procedure as provided u/s 9A of the Code of Civil Procedure, 1908 as is applicable in the State of Maharashtra. Since the said procedure has not been followed, according to the learned Counsel for the Appellant the order passed by the learned Single Judge is not sustainable in law. He submitted that the present suit filed by the Plaintiff was not a suit covered u/s 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, and therefore Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is not applicable. He submitted that whenever the borrower is ready to pay the debt of the bank or financial institutions, as in the present case the Defendant, and the Defendant-bank or financial institution for whatsoever reasons is not accepting the amount, and instead desires to proceed to dispose of the mortgaged immovable properties or the pledged movable properties, the only remedy for the borrower is to institute a suit for appropriate reliefs in the Civil Court. There is no remedy provided to the borrower under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. He submitted that Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which provides for the set-off and counter claim is not a remedy available to the Plaintiff unless and until the Defendant institutes the action, and therefore it will not be possible for the Plaintiff to wait till the Defendant files appropriate proceeding before the Debt Recovery Tribunal, to seek relief of redemption and the release of the pledged properties. And, therefore in the given circumstances it is only the civil Court which had jurisdiction to entertain the suit and therefore he submitted that the present suit which has been filed by the Plaintiff was very much tenable and was within the jurisdiction of the civil Court. Therefore, since this Court is having jurisdiction to entertain the suit, the learned Single Judge should not have returned the plaint. In fact, the learned Counsel for the Appellant submitted that, the claim of the Defendant was for the transfer of the suit and not for the return of the plaint. Therefore according to the learned Counsel for the Appellant the relief which has been granted by the learned Single Judge, was not even a relief claimed by the Defendant. The learned Counsel for the Appellant further submitted that even the claim of the Defendant to transfer the suit relying upon the decisions in the matter of United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, and State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007 (II) M.L.J. 787 is not justified. On the contrary the learned Counsel for the Appellant relies upon the decisions in United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, and Indian Bank Vs. ABS Marine Products Pvt. Ltd., and submitted that United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, has been considered by the Apex Court in Indian Bank Vs. ABS Marine Products Pvt. Ltd., . Therefore, he submitted that following the said judgments unless it is found that the claims are intrinsically connected in the sense the decision in one would affect the decision in the other and both parties have agreed for the independent suit being considered as a counter-claim in bank''s application before the Tribunal so that both can be heard and disposed of by the Tribunal. He submitted that in this respect for a transfer of a suit under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 there is no inherent power with this Court except the provisions contained in Section 31 which is inapplicable in the facts and circumstances of the present case. He relied upon, to contend that there is no inherent power with this Court except Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, as observed in Raghunath Rai Bareja and Another Vs. Punjab National Bank and Others, .

The learned Counsel for the Appellant further submitted that even assuming that there is an inherent power to transfer the suit to the Debt Recovery Tribunal, the said power has to be exercised for the interest of justice. He submitted that in the present matter the power u/s 151 of the Code of Civil Procedure, 1908 cannot be exercised. a According to the learned Counsel for the Appellant the issue which is involved in the civil suit, in view of the admission of the plaintiff''s case by the Defendant that on 31th December 1999 there was One-Time-Settlement Agreement, is only as to whether the One-Time-Settlement Agreement was entered into by the Defendant as a result of the misrepresentations made by the Plaintiff. He submitted that the burden to prove this issue is on the Defendant. He submitted that if the trial of this issue takes in a Civil Court the Defendant will have to give better particulars of the misrepresentations made by the Plaintiff as desired under Order-VI Rules-1 & 2 of the Code of Civil Procedure, 1908 and will have to prove those misrepresentations directly, and as against this, since the Code of Civil Procedure, 1908 is not applicable to the Debt Recovery Tribunal, the Defendant is not under an obligation to give better particulars of the misrepresentations which vitiated the One-Time-Settlement Agreement and probably the Plaintiff may not be in a position to insist upon the same since there is no provision supporting the Plaintiff. Apart from this, the procedure which will be applicable before the Debt Recovery Tribunal in order to decide this issue is a speedy and summary procedure and it will be therefore advantageous procedure to the Defendant- bank, which will ultimately prejudice and deny justice to the Plaintiff. As against this, if the trial of this issue is conducted before a civil Court, the Defendant will have to give better particulars of the misrepresentations as required under Order-VI of the Code of Civil Procedure, 1908 and there will be a full fledged regular trial of the issue. He submitted that therefore the Apex Court has rightly laid down in the matter of Indian Bank Vs. ABS Marine Products Pvt. Ltd., that for transferring the proceeding the consent of the party is necessary. He further submitted that while considering the inherent powers the Court has to consider whether the trial will be a full fledged trial offering better reliefs to the party. He submitted that on the one side there is a convenience that the matter should be decided in one forum and on the other side there is a prejudice to one party loosing an opportunity of full fledged trial under the Code of Civil Procedure, 1908. Under these circumstances the Court should select a larger remedy. He submitted that therefore in the facts and circumstances of the present case even relying upon Section 151 of the Code of Civil Procedure, 1908 the result is that the suit cannot be transferred to the Debt Recovery Tribunal. He also made a reference to the Supreme Court judgments and submitted that the power which has been exercised in United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, is not an inherent power. He submitted that though the said question was raised in United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, , but it was not fully explained. He submitted that there is a conflict in the ratios laid down by the Apex Court in the matters of Industrial Investment Bank of India (I) Ltd and Anr. v. Marshal''s Power & Telecom (I) Ltd. reported in 2007 (2) M.L. J . 796 and State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007(2) M.L.J. 787 , which judgments are heavily relied upon by the Defendant. He submitted that therefore this Court will have to resolve the conflict between the Apex Court judgments either selecting one of the judgments of the Apex Court. He submitted that the conflict in these Apex Court judgments cannot be harmonized and therefore the Court will have to select one of the said cases for deciding the present matter. He very heavily relied upon United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, and Indian Bank Vs. ABS Marine Products Pvt. Ltd., and submitted that the appeal may be allowed.

In the present matter Suit No. 1251 of 2000 is pending in this Court while Original Application No. 770 of 2001 is pending before the Debt Recovery Tribunal. Therefore there is no proceeding pending before this Court instituted prior to the coming into force of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which can be said to be a proceeding u/s 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. So also there is no pending proceeding before this Court which can be said to be a proceeding u/s 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 instituted after the coming into force of the said Act. Therefore, the Defendant has rightly conceded that the provisions of Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 are not applicable in the facts and circumstances of the present case and the said concession, we find that, has been fairly given by the learned Counsel for the Defendant.

Therefore in this appeal we have to consider the validity of the order passed by the learned Single Judge whereby the learned Single Judge has returned the plaint instead of transferring it as requested by the Defendant. Since the claim involved in the present suit is not by a financial institution or bank, apart from the concession given by the learned Counsel for the Defendant, we also record our finding that this suit cannot be transferred to the Debt Recovery Tribunal in view of the provisions of Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. We also find that the provision of bar of jurisdiction as stated in Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 will not apply to the present suit, because the suit is again not covered by Section 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Therefore we are only considering two aspects; firstly, whether the order of return of plaint is justified, and secondly whether the suit can be transferred to the Debt Recovery Tribunal taking recourse to the judgments of the Apex Court and/or provision of Section 151 of the Code of Civil Procedure, 1908.

Now coming to the jurisdiction of the Court in respect of the present suit the question is what is the remedy available to a borrower when he wants to protect his mortgaged immovable properties or pledged properties from the high handed acts of the banks or financial institutions, especially when the borrower is ready to obey the One-Time-Settlement Agreement arrived at between the Plaintiff and Defendant and when the Defendant bank instead of redeeming the immovable properties and releasing the shares decides to proceed against the Plaintiff and secured assets. The simple answer is that Section 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is not applicable, and therefore whenever the borrower desires to seek certain reliefs as against the bank as stated in the facts and circumstances of the present case, the remedy available is the civil suit and thereby the bank can be prohibited from disposing of the mortgaged and pledged properties. No doubt, the reference can be made to Sub-sections (7) to (11) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 which provides that setoff or counter-claim can be filed by the Plaintiff in the bank''s application u/s 17, but that is not an adequate remedy when the threats to dispose of the mortgaged properties is given by the Defendant bank without instituting the suit or making a claim that the bank is entitled to sell away the mortgaged or pledged properties in view of the assets being secured for the debt of the bank, more specifically when the borrower is ready to pay the amount under One-Time-Settlement Agreement or the amount due on that day. Such a borrower cannot be asked to wait till the filing of the application by the bank and thereafter the borrower can raise a setoff or counter-claim. If such an approach is taken the borrower will be placed into a jeopardic position and his civil rights will be affected. Therefore whenever the borrower like Plaintiff finds that his mortgaged immovable properties and pledged movable properties are in danger in the hands of the Defendant bank or financial institution, the only remedy available to the borrower is to file a civil suit. In the matter of Mardia Chemicals Ltd. Vs. Union of India (UOI) and Others Etc. Etc., , while considering the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the Apex Court has considered the issue of maintainability of the suits in the light of the provisions of Section 34 of the said Act. However, in paragraph 51 of the said judgment, the Apex Court has observed that :

However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely v. Narasimhachariar (supra) p.135 at p.141 and 144, a judgment of the learned single Judge where it is observed as follows in para 22:

The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which relief is sought: ''Adams v. Scott (1859) 7 WR 213. I need not point out that this restraint on the exercise of the power of sale will be exercised by Courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Rashbehary Ghose Law of Mortgages, Vol.II, Fourth Edn., page 784).

The other decision on which reliance has been placed is A. Batcha Saheb Vs. Nariman K. Irani and Another, more particularly on paragraph 8.

The limited extent of jurisdiction has been found with the civil Court by the Apex Court in Mardia Chemicals matter (supra). In the present case also admittedly there was One-Time- Settlement Agreement, as has been thoroughly dealt with in the earlier part of this judgment, which the Plaintiff was ready and willing to obey, not only that it was partly acted upon. Under these circumstances, the Defendant bank resiled from the One-Time-Settlement Agreement and decided to proceed as against the Plaintiff. The bank has resiled from the One-Time-Settlement Agreement, because according to the bank the price of the shares pledged with the Defendant bank has gone up and therefore the apprehension was that the bank may dispose of the shares, and therefore there was an offer by the Plaintiff to bank to accept the amount of One-Time-Settlement Agreement and release the property. However, the bank resiled from agreement and therefore to protect the mortgaged properties and pledged shares there was no other remedy available to the Plaintiff except to approach the civil Court for appropriate relief. It has been noted that the bank''s conduct shows that in spite of the filing of the suit the bank issued a letter to the Plaintiff as a result of which the Plaintiff was required to file Notice of Motion No. 1044 of 2000 wherein the directions were given by the Court, after protecting the Plaintiff, to file a proceeding before the Debt Recovery Tribunal. Not only that after filing of Original Application No. 770 of 2001, the bank issued another letter dated 27th November 2006 as a result of which Notice of Motion No. 3588 of 2007 was required to be filed and from which the present appeal arises. Therefore what we find is that at a point of time when the Plaintiff was threatened, the only remedy available to the plaintiff was to file a civil suit and therefore this Court had jurisdiction to entertain the suit. To this effect, we find that there is no serious dispute between both sides. We therefore, find that it will be unjust to ask the Plaintiff to wait till the Defendant files an appropriate proceeding before the Debt Recovery Tribunal so that the Plaintiff can raise pleas either by way of a set-off or counter claim, and therefore we find that the suit filed by the Plaintiff in civil Court, namely, before the learned Single Judge of this Court, was proper and the civil Court, i.e., this Court was/is having jurisdiction. Once the Court is said to have jurisdiction, that jurisdiction will not divest as a result of filing of an application u/s 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Therefore such as suit can only go to the Debt Recovery Tribunal by an order of transfer passed by the civil Court. What is important to be noted that the order of return of plaint passed by the learned Single Judge cannot be said to be sustainable. It is settled position in law that the return of plaint is possible only when the Court has no jurisdiction to entertain and try the suit. It is further to be noted that even the learned Single Judge has also not observed that this Court has no jurisdiction to entertain the plaintiff''s suit. The scrutiny which has been carried out by the learned Single Judge is in respect of the causes of action of the plaintiff''s suit and the Original Application No. 770 of 2001 and thereafter relying upon two judgments of the Apex Court referred to in the said order, the impugned order of return of plaint has been passed. However, in the Apex Court judgments, the Apex Court has not returned plaint for presentation. Therefore, we find that the order which has been passed by the learned Single Judge directing to return the plaint filed by the Plaintiff was not just and proper. We find that the ratio of the Apex Court judgments has not been properly applied by the learned Single Judge.

The next ground of attack by the learned Counsel for the Appellant is that the procedure u/s 9A of the Code of Civil Procedure, 1908, as applicable to the State of Maharashtra, is not followed by the learned Single Judge. The provision of Section 9A of the Code of Civil Procedure, 1908 as applicable in the State of Maharashtra is as follows:

9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue. - (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.

Thus, according to this provision whenever the civil Court is dealing with interlocutory applications for injunction or stay or appointment of a receiver or otherwise, etc., and the Defendant has raised a issue of jurisdiction of the Court, the Court in its discretion may frame a preliminary issue in respect of the jurisdiction of the Court. What is important to be noted is that, that the Notice of Motion which the Plaintiff has taken out was an interlocutory in nature for the reliefs stated in the said Notice of Motion, as we have stated elsewhere in the judgment. Therefore, if the learned Single Judge wanted to return the plaint on the ground that the Court had no jurisdiction, the learned Single Judge was under the obligation to follow the procedure as laid down in Section 9-A of the Code of Civil Procedure, 1908. Herein in this matter since the Court had returned the plaint, by implication we find that the Court was of the view of that it had no jurisdiction. However, we make it clear that from reading the judgment of the learned Single Judge we do not find that the learned Single Judge has recorded a finding that it has no jurisdiction. Under these circumstances without recording such a finding the Court has returned the plaint. Therefore, what we find is that such preliminary issue should have been decided by the learned Single Judge after framing of the preliminary issue.

We tried to find out whether the learned Single Judge has passed the order u/s 151 of the Code of Civil Procedure, 1908. However it is well settled principle of law that when there is a provision for return of the plaint in the circumstances when there is no jurisdiction with the Court, Section 151 of the Code of Civil Procedure, 1908 is not attracted. Therefore the Plaint cannot be returned except under the provision of Order-VII, Rule-10 of the Code of Civil Procedure, 1908. In substance what we find is that there is equally the violation of Section 9-A of the Code of Civil Procedure, 1908 by the learned Single Judge. Therefore, the order is equally not sustainable on that ground. However, the point raised by the Appellant in respect of Section 9-A is of no consequence in the present matter since we have arrived at a conclusion that the suit, as filed by the Plaintiff, was maintainable in the civil Court and civil Court had jurisdiction to entertain the suit.

Suit No. 1251 of 2000 filed by the plaintiff - borrower is first in point of time, which has been fled for the redemption of immovable properties and release of the pledged shares on payment being made as per the One-Time- Settlement Agreement dated 31st December 1999 and which has been acted upon. The second proceeding is Original Application No. 770 of 2001 filed by the Defendant - bank for recovery of debt based on advancement of the loan initially given, resiling from the One-Time-Settlement Agreement arrived at between the borrower and the financial institution. It is admitted position that Original Application cannot be transferred to the civil Court n view of the bar of jurisdicction contained in Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Therefore we have to decide whether the suit No. 1251 of 2000 is to be transferred to the Debt Recovery Tribunal as prayed by the Defendant in the reply to the Notice of Motion taken out by the plaintiff for interim relief.

Before we record our finding in this respect we would like to deal with the cases which have been relied upon by both parties and tried to be distinguished keeping their submissions in mind.

The first case which has been dealt with by the Apex Court is in the matter of United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, . In this mater the bank had filed a suit No. 410 of 1005 before the High Court of Calcutta. The Respondent -debtor was to file written statement. Bank''s claim as on 31st December 1998, was for an amount of Rs. 31.18 crores is said to be due to the bank. In the said suit compromise decree was passed on 29th March 1994. The bank made a grievance that the compromise was based on non existent agreement and on appeal the said judgment was set aside by the Division Bench of the High Court on 11th August 1998. The appeal was allowed and the matter was remitted back. However, the bank had filed another suit on mortgage, being O. C. Mortgage No. 771 of 1991. The said suit was stayed by the learned Single Judge as a part of the compromise. After the Division Bench set aside the matter, suit No. 410 of 1985 filed by the bank stood restored before the learned Single Judge. In the meantime, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 on 27th April 1994 came into force in the State of West Bengal. 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 not be transferred to the tribunal under the Act and the ground raised was that on 27th April 1994 the suit was not pending on the original side but the appeal was pending before the division bench, and therefore Section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is not applicable to appeals and suit did not stand transferred to the Debt Recovery Tribunal. It is further required to be noted that the debtor company had also filed suit No. 271 of 1985 against the bank in the High Court for specific performance of the agreement with the bank and and for perpetual and mandatory injunctions. Therefore the points for determination were:

(1) 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?

Considering the provisions of Sections 17 & 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Court ultimately found that the remand of the suit is a revival in law with continuity, and therefore the bar u/s 18 clearly applies. Therefore, it observed that the bank''s suit will have to be transferred to the Debt Recovery Tribunal. Results of the non transfer have been reflected in paragraph 23 of the said judgment. However, we are not concerned with those observations, because in the present matter bank''s suit is not pending before this Court which requires to be transferred to the Debt Recovery Tribunal u/s 31 considering the bar u/s 18. However, the Apex Court has considered the question of transfer of the suit No. 272 of 1985, namely the debtor''s suit and thereafter having found after scrutinizing the debtor''s suit it is observed by the Apex Court that: 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. Therefore, the Apex Court further observed that: "In our view, the above pleas raised by the respondent company are all inext-ricably 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 installments 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). The plea for deduction of damages is in the nature of a ''set off'' falling under Sub-clauses (6) and (7) of Section 19. The Court has found in paragraph Nos. 40 & 41 that the debtor- company''s reliefs are the set-off and counter claims under Sub-sections (8) to (11) of Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

The Court found in paragraph No. 42 that both 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. 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. Such a plea, was not be accepted by the Apex Court. Therefore, the Apex Court ultimately passed the order of transferring both the proceedings to the Debt Recovery Tribunal.

The second judgment which was cited by both side counsel is in the matter of Indian Bank Vs. ABS Marine Products Pvt. Ltd., . This judgment also considers the judgment in the matter of United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, , which we have considered above. In this matter the borrower approached the bank for certain credit facilities. The bank sanctioned the ad-hoc packing credit facility upto a limit of Rs. 20 lacks and Rs. 5 lakhs respectively on 12/7/1991 and 6/12/1991. According to the bank, the company utilised the said credit facilities, but committed default in repaying the amounts advanced. Therefore, the Bank filed OA No. 170 of 1995 on 21/8/1995 before the Debt Recovery Tribunal u/s 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, seeking a certificate to recover Rs. 30,67,320.04 with interest from the company and its four guarantors jointly and severally. On 19/12/1991 the bank sanctioned middle term loan of Rs. 90 lakhs and certain other facilities to the company. The sanctioned loans were not released. The company filed CS No. 7 of 1995 against the bank in the Calcutta High Court in January 1995 for recovery of Rs. 25,38,58,000/- as damages for non-disbursal of the loans with interest. On 24/1/2001, the Bank made an oral submission that the suit could not be tried by the High Court and it should be transferred to the Tribunal. The said prayer was rejected. The bank thereafter filed an application in writing praying for transfer of CS No. 7 of 1995 filed by the borrower to the Debt Recovery Tribunal on a ground that the said suit was partly in the nature of the counter claim to OA No. 170 of 1995 and was intrinsically connected with its application. It was also rejected. Against that rejection order, an appeal was preferred before the Division Bench of the Calcutta High Court. The Division Bench of the Calcutta High Court dismissed the appeal. The Division Bench held that :

(i) In the absence of a provision in the Debt Recovery Act enabling a borrower to file a suit (application) against the bank or a financial institution, in the Debt Recovery Tribunal, the jurisdiction of the civil court to entertain a suit filed by the borrower against the bank is not excluded u/s 18 of the said Act.

(ii) Section 31 of the Debts Recovery Act providing for transfer of the pending suits/cases, from courts to tribunals, applies only to those suits or proceedings which were pending before any court immediately before the establishment of a Tribunal under the said Act and will not apply to any suit or proceeding validly initiated in a civil court after the establishment of the Tribunal.

(iii) Sub-section (8) of Section 19 of the Act is merely a provision enabling a defendant (in a Recovery Application filed by the Bank before the Tribunal) to raise a counter-claim in his written statement against the bank, and empowering the Tribunal to try such a counter-claim. Such an enabling provision cannot be construed as ousting or excluding the jurisdiction of the civil court to entertain a suit for damages filed by the borrower against the bank, or enabling the bank to seek transfer of such a suit, to the Tribunal. The observation in Abhijit (supra) that the borrower''s suit should be transferred to the Tribunal by treating the independent suit of the borrower as a counter-claim in the application of the Bank, was in exercise of the extraordinary power under Article 142 of the Constitution of India, on the special and peculiar facts of that case. As the High Court in its jurisdiction as a civil court, did not possess the power available to the Supreme Court under Article 142, it could not pass any order for transfer of a suit validly instituted before it, to the Tribunal.

(iv) Even assuming that the High Court could transfer the suit, the basic requirement for transfer laid down in Abhijit (supra), that is, the subject matter of the borrower''s suit pending before the Court, and the Bank''s application pending before the Tribunal should be inextricably connected, was not present in this case. Therefore, there could be no transfer.

(v) Where a borrower''s suit is deemed to be a counter-claim in respect of the Bank''s application, and is transferred to the Tribunal, it would be open for the Bank, to contend, as enabled by Section 19(11) of the Debts Recovery Act, that such suit should be tried independently. If such a contention is accepted by the Tribunal, the suit transferred from the civil court to the Tribunal will have to be re-transferred from the Tribunal to the civil court, as the Tribunal has no jurisdiction to entertain or try an independent suit of the borrower against the bank. That will lead to an anomalous situation.

(vi) The civil court has jurisdiction to try all suits of civil nature, except those excluded by reason of an express or implied bar in a statute. The jurisdiction of a civil court can never be contingent upon an order passed by the Tribunal, and that too on an application by one of the parties to the proceeding before the Tribunal. Nor will the jurisdiction vested in a civil court to proceed with a suit, cease on the Bank or financial institution filing an application for recovery before the Tribunal.

This decision of the Division Bench of th Calcutta High Court was challenged before the Apex Court wherein the points raised were:

(i) Whether the subject-matter of the borrower''s suit before the High Court and Bank''s application before the Tribunal were inextricably connected?

(ii) Whether the provisions of Debts Recovery Act mandate or require the transfer of an independent suit filed by a borrower against a Bank before a civil court to the Tribunal, in the event of the Bank filing a recovery application against the borrower before the Tribunal, to be tried as a counter-claim in the Bank''s application?

(iii) Whether the observation in Abhijit (supra) that the suit filed by the borrower against the Bank has to be transferred to the Tribunal for being tried as a counter-claim in the applications of the Bank, is to be construed as a principle laid down by this Court, or as an observation in exercise of power under Article 142 in order to do complete justice between the parties?

On point No. (i), the Apex Court observed that thus there is absolutely no connection between the subject matter of the two suits and they are no way connected. A decision in one does not depend on the other. Nor could there be any apprehension of different and inconsistent results if the suit and the application are tried and decided separately by different forums. In the circumstances, it cannot be said that the borrower''s suit and the Bank''s application were inextricably connected. On point No. (ii), the Apex Court observed that what is significant is that Sections 17 and 18 have not been amended. Jurisdiction has not been conferred on the Tribunal, even after amendment, to try independent suits or proceedings initiated by borrowers or others against banks/financial institutions, nor the jurisdiction of civil courts barred in regard to such suits or proceedings. The only change that has been made is to enable defendants to claim set off or make a counter-claim as provided in Sub-sections (6) to (8) of Section 19 in applications already filed by the bank or financial institutions for recovery of the amounts due to them. In other words, what is provided and permitted is a crossaction by a defendant in a pending application by the bank/financial institution, the intention being to have the claim of the bank/financial institution made in its application and the counter-claim or claim for set off of the defendant, as a single unified proceeding, to be disposed of by a common order. Making a counter claim in the Bank''s application before the Tribunal is not the only remedy, but an option available to the borrower/defendant. He can also file a separate suit or proceeding before a civil court or other appropriate forum in respect of his claim against the Bank and pursue the same. Even the Bank, in whose application the counterclaim is made, has the option to apply to the tribunal to exclude the counter-claim of the defendant while considering its application. When such application is made by the Bank, the Tribunal may either refuse to exclude the counter-claim and proceed to consider the Bank''s application and the counter-claim together; or exclude the counter-claim as prayed, and proceed only with the Bank''s application, in which event the counter-claim becomes an independent claim against a bank/financial institution. The defendant will then have to approach the civil court in respect of such excluded counter claim as the Tribunal does not have jurisdiction to try any independent claim against a bank/financial institution. A defendant in an application, having an independent claim against the Bank, cannot be compelled to make his claim against the Bank only by way of a counter-claim. Nor can his claim by way of independent suit in a court having jurisdiction, be transferred to a Tribunal against his wishes. Then the Apex Court has considered point No. (iii,) and while considering the said point, the Apex Court has considered the earlier judgment in the matter of United Bank of India v. Abhijit Tea Co. (P) Ltd (supra). The Apex Court also considered at the end of paragraph 24 the submission that any direction issued in exercise of power under Article 142 to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by this Court under Article 141. It is pointed out that other courts do not have the power similar to that conferred on this Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results.

While considering this submission in paragraph No. 25 the Apex Court observed that though there appears to be some merit in the first respondent''s submission, we do not propose to examine that aspect. Suffice it to clarify that the observations in Abhijit (supra) that an independent suit of a Defendant in the bank''s application can be deemed to be a counter calim and can be transferred to the Tribunal, will apply only if the following conditions were satisfied:

(i) The subject matter of Bank''s suit, and the suit of the defendant against the Bank, should be inextricably connected in the sense that decision in one would affect the decision in the other.

(ii) Both parties (the plaintiff in the suit against the Bank and the Bank) should agree for the independent suit being considered as a counter-claim in Bank''s application before the Tribunal, so that both can be heard and disposed of by the Tribunal.

In short the decision in Abhijit is distinguishable both on facts and law.

Further in paragraph 26 the Apex Court has observed that :

Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/ relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. One solution to avoid such a situation is for this Court to clarify that a particular direction or portion of the order is in exercise of power under Article 142. Be that as it may.

After these observations, the Apex Court has ultimately dismissed the appeal. In short, the order passed by the Calcutta High Court has been upheld by the Apex Court. However, what we find that though the observations made in the judgment of the Calcutta High Court in respect of the Abhijit''s case (supra), namely, that the Apex Court has exercised power under Article 142 of the Constitution, has not been directly answered by the judgment in Indian Bank Vs. ABS Marine Products Pvt. Ltd., , still in paragraph No. 25 the Apex Court clarified the position of Abhijit''s case prescribing two conditions to be satisfied by the Court for transfer of a proceeding, namely, the subject matter of Bank''s suit, and the suit of the defendant against the Bank, should be inextricably connected in the sense that decision in one would affect the decision in the other, and secondly that both parties (the plaintiff in the suit against the Bank and the Bank) should agree for the independent suit being considered as a counter-claim in Bank''s application before the Tribunal, so that both can be heard and disposed of by the Tribunal.

Then the learned Counsel for the Defendant bank invited attention of this Court and heavily relied upon the decision in the matter of State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007(2) M.L.J. 787. In this matter the appeal before the Apex Court was filed by the bank challenging the order of the Patna High Court confirming an order of the Subordinate Judge of Patna in Suit No. 1568 of 2001, refusing to transfer the suit for being tried jointly with O. A. No. 18 of 2002 filed by the Bank before the Debt Recovery Tribunal. The bank had sought transfer of the suit on the basis that it is in the nature of counter claim to its claim and arises out of the same cause of action. The bank had originally granted a term loan to the company in the sum of Rs. 30 lacks. The bank further extended credit facility. The company failed to meets its obligations under the account. Thereupon the bank issued a notice calling upon the company to repay the amounts due under the loan transactions and to close its accounts. On receipt of that notice, the company filed a suit before the Court of Subordinate Judge -I, of Patna as Suit No. 168 of 2001 claiming that the bank had failed to fulfil its obligations while making available the cash credit facility and has not honoured its commitments in time to release the working capital which was agreed to as part of a rehabilitation process of the company and because of the delay on the part of the bank in fulfilling its obligations, the company had suffered losses leading to the Board of Industrial and Financial Reconstruction, recommending its winding up and in view of the fact that the losses were incurred because of the failure of the bank to fulfil its obligations, the company was entitled to recover a sum of Rs. 1739.15 lacs as damages with interest thereon. The bank in its turn approached the Debt Recovery Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 by way of O.A. No. 18 of 2002 filed u/s 19(1) of that Act.

The Apex Court in paragraph 4 observed that the question was not whether the civil Court had jurisdiction to entertain the suit or to continue with the suit. The question was whether in the nature of the respective claims arising out of the loan transaction, it was just and proper to order a joint trial of the two causes and whether there was anything in the Recovery of Debts Act which prevented the Debt Recovery Tribunal from entertaining the claim made by the plaintiff in the suit. A question of joint trial arises when the rival parties file independent actions but based on the same cause of action; for enforcement of rights or obligations springing out of that cause of action. After scrutinising the facts of that case, the Apex Court observed that viewed thus, it cannot but be said that both claims have arisen out of the same transaction or out of the same relationship that came into existence between the bank and the company and the alleged breach of obligations by one or the other. We have, therefore, no hesitation in holding that the two actions have sprung out of the same cause of action.

Then in paragraph No. 35 of the said judgment the Apex Court, after referring to Sub-sections (6) to (11) of Section 199 referred to decision in the matter of United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, and observed that we see no reason to differ from the reasoning and conclusion therein in that regard. It is therefore clear that the claim made by the company in the suit filed by it could be considered as a claim for set off and/or as a counter claim within the meaning of Section 19 of the Act. Thus, the Apex Court has approved the ratio laid down in Indian Bank Vs. ABS Marine Products Pvt. Ltd., the Apex Court observed that, what is relevant to note is that the claim of the Company in the suit could have been maintained as a counter-claim in the application of the bank, even if it did not arise out of the same cause of action. There is no warrant for curtailing the power of the Court to order joint trial by introducing a restriction to the effect that a joint trial can be ordered only if there was consent by both sides. The power inherent in the Court on well accepted principles to order a joint trial, does not depend upon the volition of the parties but it depends upon the convenience of trial, saving of time and expenses and the avoidance of duplicating at least a part of the evidence leading to saving of time and money.

Further in paragraph No. 11 the Court observed that : A joint trial is ordered when a Court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the Court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A Court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. In the light of our conclusion that the claim of the company in the suit could be considered to be a claim for set off and a counter claim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunal for being tried jointly with the application filed by the bank as a cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the civil Court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified.

Thus after going through decision in State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007(2) M.L.J. 787, what we have noticed is that in State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007 (2) M.L.J. 787,. the Abhijit Tea Co. (supra) has been accepted and ABS Marine Products (P) Ltd. (supra) has been partially accepted. Out of the two tests laid down in ABS Marine Products (P) Ltd., one test, namely, that the subject matter of Bank''s suit, and the suit of the defendant against the Bank, should be inextricably connected in the sense that decision in one would affect the decision in the other has been approved, while the other test, namely, both parties (the plaintiff in the suit against the Bank and the Bank) should agree for the independent suit being considered as a counterclaim in Bank''s application before the Tribunal, so that both can be heard and disposed of by the Tribunal has not been approved by the Apex Court.

The Apex Court has stressed the power to transfer a proceeding as an inherent power of the civil Court u/s 151 of the Code of Civil Procedure, 1908. Therefore, the Apex Court has observed that there is no warrant for curtailing the power of the Court to order joint trial by introducing a restriction to the effect that a joint trial can be ordered only if there was consent by both sides. The power inherent in the Court on well accepted principles to order a joint trial, does not depend upon the volition of the parties but it depends upon the convenience of trial, saving of time and expenses and the avoidance of duplicating at least a part of the evidence leading to saving of time and money. The Apex Court has further observed that a joint trial is ordered when a Court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the Court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties.

Thus, what we find that so far as the Abhijit Tea Co., (P) Ltd (supra) has been explained by ABS Marine Products'' case by providing two conditions. Out of that in the decision in State Bank of India v. Ranjan Chemicals Ltd and Anr. the Apex Court has accepted one condition and has completely differed from the condition of consent of the parties. To that extent Ranjan Chemicals Ltd and Anr., is in conflict with ABS Marine Products'' case.

But what is important to be noted is that the Plaintiff relies upon United Bank of India v. Abhijit Tea Co. (P) Ltd along with ABS Marine Products'' case and submits that the suit of the Plaintiff cannot be transferred to the Debt Recovery Tribunal. While the Defendant relies upon Abhijit Tea Co., (P) Ltd along with Ranjan Chemicals Ltd and Anr., and submits that under the inherent powers the suit in question can be transferred to the Debt Recovery Tribunal. Therefore, while considering whether the plaintiff''s suit is to be transferred to the Debt Recovery Tribunal we will have to consider, firstly, whether both the suits / proceedings are intrinsically connected, and secondly whether we will have to refuse the prayer for transfer relying upon ABS Marine Products'' case, as contended by the Plaintiff that the Plaintiff is not giving consent for transferring his suit to the Debt Recovery Tribunal and/or we have to rely upon Ranjan Chemicals Ltd and Anr., as contended by the Defendant and transfer the suit under the inherent power irrespective of the fact that the Plaintiff has not given consent for transfer.

We find that on the point of consent of the parties, Indian Bank v. ABS Marine Products (P) Ltd. and State Bank of India v. Ranjan Chemicals Ltd and Anr. are opposite to each other. Our difficulty is that both the judgments, namely, Indian Bank v. ABS Marine Products (P) Ltd. and State Bank of India v. Ranjan Chemicals Ltd and Anr. are from the Bench of equal strength of the Apex Court. We further find that the judgment of United Bank of India v. Abhijit Tea Co. (P) Ltd is also from the bench of equal strength. Therefore we have considered these judgments in a sequence in which they are delivered by the Apex Court. The question therefore is, out of Indian Bank v. ABS Marine Products (P) Ltd., and State Bank of India v. Ranjan Chemicals Ltd and Anr. which of the judgment is to be followed when the rival claims made by the Plaintiff and Defendant are based upon different cases.

The learned Counsel for the Plaintiff submitted that the judgment in Indian Bank v. ABS Marine Products (P) Ltd. be followed while the learned Counsel for the Defendant contends that the judgment in State Bank of India v. Ranjan Chemicals Ltd and Anr. be followed. It is further interesting to note that in order to support the case of Indian Bank v. ABS Marine Products (P) Ltd. The learned Counsel for the Plaintiff further relied upon Raghunath Rai Bareja and Another Vs. Punjab National Bank and Others, and he invited our attention to paragraph No. 25 which is as follows:

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 v. Canara Bank and 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 contained in Section 31 of the RDB Act, and no transfer is permissible dehorse Section 31. Hence, we respectfully disagree with the High Court that it has inherent powers apart from Section 31 for transferring the Execution Petition to the Debt Recovery Tribunal.

. Thus, relying upon this judgment, the learned Counsel for the Plaintiff submitted that dehorse the power u/s 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 there is no power to transfer the proceeding.

As against this, the learned Counsel for the Defendant relied upon provisions of Section 151 of the Code of Civil Procedure, 1908 and submitted that inherent power traced by the Apex Court in State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007(2) M.L.J. 787 AND Industrial Investment Bank of India (I) Ltd & Ano. v. Marshal''s Power & Telecom (I) Ltd, (reported in 2007(2) M.L. J . 796 is referable to Section 151 of the Code of Civil Procedure, 1908, which is available to the civil Courts. Therefore by making reference to Section 151 of the Code of Civil Procedure, 1908 he further relied upon Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, and M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, , and Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , and unreported judgment of this Court in the matter of Iridium India Telecom Ltd v. Motorola Inc (Decision dated 30/4/2004 in Appeal No. 702 of 2003 of Original Side.).

Thus, the question before this Court is to find out whether to apply Indian Bank Vs. ABS Marine Products Pvt. Ltd., or State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007(2) M.L.J. 787, if it is found that the suit and Original Application No. 770 of 2001 are intrinsically connected with each other.

We have analysed the pleadings of both sides in the earlier part of this judgment and we have noticed that the basic agreement of the loan and the securities and guarantees given for the said loan by the Plaintiffs is an admitted position between the parties. We also found that so far the loan amount is concerned there is no dispute between the parties. So far as the plaintiff''s case is concerned, that he had an One-Time-Settlement Agreement with the Defendant, is also admitted by the Defendant. The claim of the Plaintiff that the One-Time-Settlement Agreement was partially acted upon is also admitted between the parties. The only difference remains is on the point of resilement of the One- Time-Settlement Agreement. According to the Defendant that One-Time-Settlement Agreement was arrived at because of the misrepresentations made by the Plaintiff, and therefore the said agreement is vitiated at the option of the Defendant because of such misrepresentations. The other aspect, namely, the claim of damages in a sum of Rs. 4.53 crores made by the Plaintiff has not been claimed in the suit in this Court but it is claimed in a written statement filed in Original Application No. 770 of 2001 and that too by way of a damages, because the mortgaged properties and the pledged shares were not redeemed and released by the bank and therefore they are already part of Original Application No. 770 of 2001 as a set-off.

What is important to be noted is that though the subject matter arises out the loan transaction in between the Plaintiff and Defendant, however, causes of actions for both the proceedings are different, namely, according to the Plaintiff there was a novation of contract on 31st December 1999 by way of One-Time- Settlement Agreement, which was acted upon, however the Defendant resiled from the said contract on 16th February 2000, and therefore the Plaintiff showed readiness and willingness to perform the rest of the contract by making payment of Rs. 1.15 crores and seeking redemption of the mortgaged properties and release of the pledged shares. Therefore the cause of action for the plaintiff''s suit, according to the Plaintiff as stated in the plaint, is the date of novation of contract and further denial by the bank of the said contract on 16th February 2000 and thereafter on refusal to redeem the properties mortgaged and pledged with the bank on accepting the payment of Rs. 1.15 crores. This cause of action in the plaintiff''s suit is quiet a different than the cause of action for O.A. No. 770 of 2001. While the cause of action for filing Original Application No. 770 of 2001 starts in view of the fact that the Defendant- bank accepted the novated contract in view of the misrepresentations made by the Plaintiff and therefore the bank reverses to the initial contract and claims the total dues from the Plaintiff. Though the facts are to some extent overlapping, if we scrupulously analyse them we find that the causes of action for both these proceedings, namely, for the suit and Original Application No. 770 of 2001 are different. We have already noted in the earlier part of this judgment that the suit as it was filed, the civil Court had jurisdiction and as a result of filing of Original Application No. 770 of 2001 the jurisdiction will not divest.

However, even we hold that both the causes of action are intrinsically connected with each other, and for that purpose for the sake of argument we agree with the Defendant, still there is a difficulty because the Plaintiff is not giving consent for the transfer of suit. Therefore, we have to first decide out of two cases of the Apex Court referred to above, namely, Indian Bank Vs. ABS Marine Products Pvt. Ltd., and State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007(2) M.L.J. 787, which judgment is to be followed by us. We tried to harmonise both the judgments, but we are unable to harmonise them. We find that they are opposite to one another to the limited extent of consent v. inherent power. Under these circumstances, what should be the approach of this Court has been considered by the Full bench of this Court in the matter of Kamlesh Ishwardas Patel v. Union of India and Ors. reported in 1994 M. L. J. 1669. We find that the Full bench of this Court has observed that when there is a conflict of judgments of the Supreme Court it is very painful to make a choice of a judgment out of the two conflicting judgments. However, the Full Bench has held that under these circumstances the choice is left with this Court to select one of those judgments. Therefore, we are inclined to accept the test as laid down by the Apex Court in Indian Bank Vs. ABS Marine Products Pvt. Ltd., . We have reasons as to why we are accepting the test laid down in Indian Bank Vs. ABS Marine Products Pvt. Ltd., in the facts and circumstances of the present case. What we find that in view of the acceptance of the One-Time-Settlement Agreement dated 31st December 1999 by the Defendant - bank, the burden of proof to prove that the Defendant has entered into Agreement dated 31st December 1999 for One- Time-Settlement of the loan because of certain misrepresentations made by the Plaintiff is on the defendant. Therefore, the case of the Defendant depends upon the proof of misrepresentation to the extent to vitiate the One- Time-Settlement Agreement dated 31st December 1999. If this issue is tried in the civil Court, the Defendant is under an obligation to make pleadings with better particulars in respect of the misrepresentation in view of the provisions of Order-VI of the Code of Civil Procedure, 1908, and thereafter the Defendant will have to prove them. But if this issue is tried in the Debt Recovery Tribunal, since the Code of Civil Procedure, 1908 is not applicable to the Debt Recovery Tribunal, the Defendant will not be under an obligation to plead specifically the particulars of the misrepresentation as required under Order-VI of the Code of Civil Procedure, 1908, and therefore by getting a summary and speedy trial without disclosure of better particulars in respect of the mis-representations vitiating the One-Time-Settlement Agreement, the Defendant is likely to be placed in advantageous position. The question, therefore, is out of the two remedies one which is larger remedy available in civil Court to decide the point in issue, and the other speedy and summary remedy available before the Debt Recovery Tribunal, which remedy should be selected by the parties. Naturally, the Plaintiff is justified in selecting civil Court wherein the Plaintiff will have a full fledged trial of the controversial issue of misrepresentations made by the Plaintiff to the Defendant so as to vitiate the agreement. Therefore, if the suit is transferred without the consent of the Plaintiff, the Plaintiff looses the larger remedy and the Defendant is saved from the rigorous of the civil trial. Therefore, what we find is that when it is found that the civil Court has jurisdiction to entertain a suit filed by the borrower then while transferring such suit, consent of the borrower is necessary because the borrower may loose certain advantages which are available to him in civil proceedings before the civil Court. Therefore, what we find is that though the civil Court may have an inherent powers u/s 151 of the Code of Civil Procedure, 1908, the test laid down and explained in Indian Bank Vs. ABS Marine Products Pvt. Ltd., by making reference to the decision in United Bank of India, Calcutta Vs. Abhijit Tea Co. Pvt. Ltd. and Others, and more specifically to Article 142 of the Constitution of India, etc., is acceptable to us. Therefore, we find that since the Plaintiff is not giving consent to transfer his suit to the Debt Recovery Tribunal we are not inclined to transfer the suit of the Plaintiff to the Debt Recovery Tribunal.

Apart from that, even if we consider that the ratio as laid down in State Bank of India v. Ranjan Chemicals Ltd and Anr. reported in 2007(2) M.L.J. 787 is also just and proper, and even we further assume that without the consent of the party the suit can be transferred under the inherent power of the Court u/s 151 of the Code of Civil Procedure, 1908 to the Debt Recovery Tribunal, as has been done by the Apex Court in the facts and circumstances of that case, and even if we assume and agree that we have inherent powers as observed by the Apex Court, however, that power u/s 151 of the Code of Civil Procedure, 1908 has to be exercised for the interest of justice. What we find that the Apex Court has observed that the inherent power is to be exercised when the Court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the two causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the Court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A Court has the power in an appropriate case to transfer a suit for being tried with another if the circumstances warranted and justified it. Therefore ultimately the Court has to consider whether in the facts and circumstances of the case the joint trial is necessary.

What we find that in the facts and circumstances stated above, this is a case of vitiating the contract of One-Time-Settlement, in view of the misrepresentations made by the Plaintiff, and as already analysed a thorough enquiry in this respect can be made in a civil suit. Therefore we find that transferring the suit to the Debt Recovery Tribunal may take away a larger adjudication of the issue and/or deprive the Plaintiff of a larger adjudication of the issue, thereby putting him into inconvenient situation. Therefore, even looking from that angle, we find that the trial of the issue in respect of misrepresentation can be properly dealt with in the civil Court. Therefore it will be in the interest of the Plaintiff, who has chosen the forum to keep the suit in civil Court. We do not desire to disturb the advantageous position which the Plaintiff has acquired as a result of filing of the suit in civil Court. Therefore, even assuming that under the inherent power, this Court can transfer the suit to the Debt Recovery Tribunal, we are not inclined to transfer the suit filed by the Plaintiff to the Debt Recovery Tribunal.

There is one more angle to the problem, namely, if on the filing of the proceeding by the financial agency or the bank with the DRT, if for the sake of convenience, civil suit which is already filed before the Civil Court by the borrower is to be transferred to the DRT, then the fate of the civil suit becomes a fate accompli with the presentation of the application before the DRT as contemplated under the said Act, and even though the suit in civil Court is tenable and can be heard expeditiously, only because of the suit from the DRT cannot be transferred to the civil Court as a fate accompli the civil suit goes to the DRT and thereby the full fledged remedy available under the civil law is foreclosed to the Plaintiff who has approached to the civil Court. Such a consequence cannot be justified and therefore we find that in each and every case it is necessary to scrutinise as to whether the transfer of the civil suit to the DRT is necessary or not.

At this juncture we only mention that the other cases which have been relied upon by the Defendant are the cases u/s 151 of the Code of Civil Procedure, 1908 and taking into consideration each case the Court has either exercised the power u/s 151 or refused to exercise the power u/s 151. Therefore, in the facts and circumstances of the present case, those cases are not applicable and they are not thoroughly referred to, except for mentioning that they have been relied upon by the Defendant.

Before parting with this matter we would like to mention one fact on record that after filing of Original Application No. 770 of 2001, the Debt Recovery Tribunal has passed an order on 1st May 2006 below Exhibit-1, which reads thus:

Heard the learned Counsel.

During the course of arguments, it was noticed that the agreement dated 31.12.1999 between the parties for settlement of the Bank''s dues for a sum of Rs. 1.75 crores is the real bone of contention. The foundation of O. A. is contention as to how that agreement does not bind the bank. The Defendant''s case is that the agreement is legal and valid and as such is binding on the bank. The Defendant Nos. 1 to 3 herein have filed the suit in the High Court of Judicature at Bombay bearing No. 1251 of 2000 before filing of this O. A. that suit, inter alia, is for declaration that the agreement between the bank and the Defendant Nos. 1 to 3 dated 31.12.1999 is valid and subsisting and that the bank is entitled to recover Rs. 1.15 crores since admittedly Rs. 60 lakhs were paid. If the Defendant Nos. 1 to 3 succeed in that suit, the bank would not be entitled to O. A. amount. Thus, the issue in the High Court suit is the core of issue in this O. A. also. Therefore, the spirit of Section 10 of the CPC applies.

The learned Counsel for the bank, however, is of the opinion that the O. A. is based on the security documents and the statement of account filed by the bank. I am not impressed with this submission since the real dispute between the parties is whether the settlement agreement constituting novation is binding on the parties or not. The Hon''ble High Court of Judicature at Bombay is seized of that issue in a suit filed prior in point of time. The fact that the Defendants herein have made counter claim, in my view does not help the bank. The counter claim is in respect of difference between price of share of the 1st Defendant at the time settlement was to be paid by selling the shares and the price at the time of filing the counter claim. It is true that the said counter claim has no connection with the High Court suit. But the counter claim cannot be decided by leaving aside the main controversy between the parties. The fact that the Hon''ble High Court of Bombay had permitted the Applicant to file this O. A. does not mean that the present suit can proceed. The permission may have been granted because of the point of limitation and for granting of interim reliefs. The principles of Section 10 of the Code of Civil Procedure, 1908 appears to be salutary and give mandate for stay of the subsequently filed proceeding.

And, ultimately the Debt Recovery Tribunal has stayed the further hearing of Original Application No. 770 of 2001 until the decision of the suit No. 1251 of 2000 filed by the Defendant Nos. 1 to 3.

What we find is that the Debt Recovery Tribunal, taking cognizance of the fact that the Original Application No. 770 of 2001 has been subsequently instituted, analysed the controversy involved between the parties, and having found that the High Court is seized of the matter, and having found that the real dispute between the parties is whether One-Time-Settlement Agreement constitutes novation which is binding on the parties or not, has stayed the proceeding of Original Application No. 770 of 2001. Without entering into the merit of that matter, we take note of that order, and this order also persuades us not to transfer the suit of the Plaintiff to the Debt Recovery Tribunal.

Taking an overall view of the matter we find that the impugned order is not sustainable in law.

Then requires a question to be considered whether the Plaintiff is entitled to interim relief as claimed in Notice of Motion No. 3588 of 2007. What we find is that the learned Single Judge has not considered this aspect since the plaint was returned, and it is inappropriate for us to consider this aspect at an appellate stage directly. Therefore, we remand back the matter to the learned Single Judge to consider as to whether the Plaintiff is entitled to any interim relief as claimed in Notice of Motion No. 3588 of 2007. In the result we pass following order.

ORDER

(1) Appeal is partly allowed.

(2) Order dated 17th March 2008 passed by the learned Single Judge in Notice of Motion No. 3588 of 2007 is hereby set aside.

(3) Notice of motion is remanded back to the learned Single Judge for considering as to whether the Plaintiff is entitled to a relief as claimed in Notice of Motion.