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Judgment
C.K. Prasad, J.
Bereft of unnecessary details, facts which are necessary for the decision of the present writ petition are that Respondent No. 1 Bank of India (hereinafter referred to as the Bank) filed Civil suit No. 6-A/95 in the Court of District Judge. Jabalpur, for recovery of an amount of Rs. 35.05.522/- After the constitution of the Debt Recovery Tribunal, suit filed by the Respondent Bank was transferred to the former as provided u/s 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. By order dated 17.5.1999 the Debt Recovery Tribunal allowed the application filed by the Bank and held that the Bank is entitled to recover its dues from the Petitioner along with interest. Aggrieved by the same, one of the Petitioners namely Petitioner No. 2 Sanjiv Kumar Jain preferred appeal before the Debts Recovery Appellate Tribunal, impleading other Petitioners as Respondents in the appeal preferred by Petitioner No. 2 was registered as Appeal No. 54/99 Before the Debts Recovery Tribunal he filed application for waiver of the deposit as required u/s 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Herein after referred to as the "Act". Debts Recovery Appellate Tribunal by order dated 25.10.1999 (Annex. P/4) held that as per calculation submitted by the Appellant himself, dues come to Rs. 43,00,000/- and odd and after taking into consideration the facts and circumstances of the case, the Debts Recovery Appellate Tribunal directed the Appellant to deposit Rs. 25,00.000/- within 8 weeks failing which appeal shall not be entertained. As stated earlier, from the memo filed before the Debt Recovery Appellate Tribunal, it appears that appeal has been filed only by Petitioner No. 2, but this writ petition under Articles 226 and 227 of the Constitution of India, has been filed by all the Defendants and their prayer is to quash the order dated 25th October, 1999 (Annexure P/4) of the Debts Recovery Appellate Tribunal.
Mr. Ravindra Shnvastava appears on behalf of the Petitioner Respondent No. 1 is represented by Mr. S.K. Mukherjee Mr. Mukherjec, appearing on behalf of the Respondent raises a preliminary objection in regard to the territorial jurisdiction of this Court to hear and adjudicate the writ petition. He submits that the order impugned in the present writ petition has been passed by the Debts Recovery Appellate Tribunal at Mumbai and in that view of the matter, this Court lacks territorial jurisdiction to hear the writ petition Mr. Ravindra Shnvastava, however, appearing on behalf of the Petitioners submits that a part of cause of action has arisen within the territorial jurisdiction of this Court and in view of the clear language of Article 226(2) of the Constitution of India, this Court possesses jurisdiction to entertain the writ petition.
Having appreciated the rival submissions 1 find substance in the submission of Sri Shnvastava. It is not in controversy that Petitioner No. 1 applied to the Respondent Bank to grant the Cash Credit Limit for meeting the working capital requirement at Ashirwad Market. Jabalpur Branch of the Respondent Bank Respondent Bank filed the suit in the Court of District Judge. Jabalpur which lateron transferred to the Debts Recovery Tnbunal Jabalpur. It is against the order of the Debts Recovery Tribunal dated 17.5.1995 passed at Jabalpur that Petitioner No. 2 had preferred appeal before the Debts Recover Appellate Tnbunal, whose order has been impugned in the present writ petition From the facts stated above, it is evident that part of cause of action has arisen in the oratory over which this Court exercises junsdiction, hence, in view of plain language of Article 226(2) of the Constitution of India, this Court docs not lack territorial jurisdiction to hear and adjudicate the writ petition.
As pointed out by Sri Shrivastava the view which I have taken finds support from the judgment of a Division Bench of this Court in the Case of Neo Sacks Limited Vs. CEGAT, In this case, order passed by the Customs, Excise and Gold (Control) Appellate Tribunal (for short CEGAT), New Delhi, was challenged before this Court and on objection similar to the present one has been over-ruled in the following words -
Now the position is that the High Court enjoys jurisdiction to issue writs to any person, authority or the Government who may not be resident or located within its terntonal limits, provided the cause of action wholly or in part anses within such limits and not with standing whether the State or the authority or person was resident or not within those territones over which it was exercising its junsdiction. It is well settled by now that if the cause of action was available, discernible wholly or in part in one particular place which was within the territorial limits of the High Court, it would assume the power to exercise all the powers under Article 226. irrespective of whether the authority whose act had created the cause of action was located outside its territorial limits. It would all depend upon the impact of the action of the authority or the person on the aggrieved party.
Now. reverting to the merits of the case Mr. Ravandra Shrivastava submits that the right of appeal is a vested right and the same cannot be deprived by putting onerous condition of deposit of 75% of the amount determined by the Debt Recovery Tribunal while preferring the appeal He submits that the Respondent Bank filed the suit when Debt Recovery Tribunal was not in existence and as such Petitioners shall be governed by the law prevailing at the time of presentation of the suit At that point of time. Mr. Shrivastava points out that there was no requirement of pre-deposit for preferring the appeal, hence the provision requiring ''pre-deposit'' under the Act cannot be applied retrospectively Accordinglv he submits that the impugned order passed by the Debt Recovery Appellate Tribunal is fit to be set aside and it be declared that the Petitioners have right to pursue the appeal without deposit of 75% of the amount determined by the Debt Recovery Tribunal.
Mr. S.K. Mukherjee, however, appearing on behalf of the Respondent Bank submits that notwithstanding the fact that the right of appeal is a substantive right same can be affected by express enactment or necessary implication. He points out that Section 34 of the Act provides for an over-riding effect, notwithstanding, anything contained in any other law for the time being in force.
Having appreciated the rival submissions, neither on principle nor on precedent I am inclined to accept the submission of Sri Shrivastava Section 19 of the Act inter alia provides for filing an application for recovery of the amount to the Debt Recovery Tribunal by a Bank or a financial institution Section 31(1) of the Act provides that a suit, the cause of action whereon is based is such that had it arisen after the establishment of the Debt Recovery Tribunal, would have been cognizable by the Tribunal, same shall stand transferred to it Section 31(2)(b) inter alia provides that the Debt Recovery Tribunal on transfer of the suit proceed to deal with the suit in the same manner as in the case of an application made u/s 19 of the Act from the stage which was reached before such transfer or from any earlier stage or denovo as the tribunal may deem fit Decision rendered by the Tribunal on an application filed u/s 19 of the Act is appeasable before the Debts Recovery Appellate Tribunal u/s 20 of the Act Section 21 of the Act provides for deposit of 75% of the amount of debt determined by the Debt Recovery Tribunal u/s 19 of the Act Section 34 of the Act in specific terms provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. From the scheme of the Act as referred to above, it is evident that the transferred suit has to be dealt in the same manner by the Debt Recovery Tribunal as that of an application filed u/s 19 of the Act. Decision rendered on an application u/s 19 of the Act is appeasable before the Debt Recovery Appellate Tribunal u/s 20 of the Act and for such appeal 75% of the amount of debt as determined by the Tribunal u/s 19 of the Act is required to be deposited The Act in question having expressly provided for the same, contention of the Petitioners that their rights shall be governed according to the law prevalent at the time of filing of the suit, is fit to be rejected.
Now reverting to the authorities. Mr. Shrivastava has placed strong reliance on a judgment of the Supreme Court in the case of Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Others, My attention has been drawn to paragraph 8 of the judgment which reads as follows -
(8) The above decisions quite firmly establish and our decisions in Janardan Reddy and Others Vs. The State, and in Ganpat Rai Hiralal and Another Vs. Aggarwal Chamber of Commerce Ltd., uphold the principle that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in and before a decision is given by the inferior Court. In the language of Jenkins C.J., in Nana v. Shekn (B) (supra) to disturb and existing right of appeal is not a mere alteration in procedure Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication." In the said case, when the proceeding was initially instituted statutory provision provided that appeal preferred against an order of assessment with or without penalty shall not be entertained by the appellate authority unless it is satisfied that such amount of tax or penalty or both as the Appellant may admit, has been paid. However later on amendment was incorporated in the statutory provision and the requirement of the deposit of tax or penalty as admitted by the Appellant was waived and amendment provided that the Appellant shall deposit the tax with penalty in respect of which he has preferred the appeal. In the said case, nothing was brought to the notice of the Court that the Legislature ever intended to take away the right of the Appellant by express enactment or by necessary implication. Here in the present case, as held earlier, the provisions of the Act necessarily and expressly provide for decision of the appeal in accordance with the provision of the Act. It is relevant here to state that in this case itself the Supreme Court has conceived that the right of appeal can betaken away by express enactment or necessary intendment. Hence, the authority relied on docs not in any way supports the case of the Petitioners.
Another decision on which Sri Shrivastava has placed reliance is the judgment of the Supreme Court in the case of State of Bombay Vs. Supreme General Films Exchange Ltd., He contends that putting onerous condition of deposit of 75% of the amount of dues as determined by the Debt Recovery Tribunal while preferring appeal before the Debts Recovery Appellate Tribunal cannot be applied retrospectively He has drawn my attention to paragraph 12 of the said judgment, which reads as follows:
It is thus clear that in a long line of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.
This decision, in my opinion, also does not help the Petitioners in any way. Even at the cost of repetition. I may state that the Act is a subsequent enactment and it expressly provides for applicability of the provisions of the Act while preferring the appeal. This being so. the authority relied is of no assistance to the Petitioners
Yet Anr. decision on which Sri Shrivastava has placed reliance is the judgment of the Supreme Court in the case of Ramesh Singh and another Vs. Cinta Devi and others, and my attention has been drawn to the following paragraph of the said judgment:
In our view the point at issue stands squarely covered by three decisions of this Court reported in Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Others, . State of Bombay Vs. Supreme General Films Exchange Ltd., and Vitthalbhai Naranbhai Patel Vs. Commissioner of Sales Tax, M.P., Nagpur, . In all these decisions the view taken is that unless the New Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystallise in the Appellant on the institution of the application in the Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the new Act In other words, the Appellant would be entitled to file the appeal without being required to make the deposit under the proviso to Section 173 of the New Act. The law. therefore, seems to be fairly well settled by the said three decisions of this Court.
In this case, as in the case of Hussam Kasim Dada (supra) and State of Bombay (Supra), the Supreme Court has held that the right to appeal will crystallise in the Appellant on the institution of the application at the first instance and vested right of appeal would not be dislodged by enactment of the New Act. subject of course that New Act expressly or by necessary implication makes a provision applicable retrospectively Here I have found that the provisions of the Act expressly provided for its application in the appeal and hence the authority relied on is clearly distinguishable.
Question falling for determination came up for consideration before a Constitution Bench of the Supreme Court in the case of Garikapatti Veeraya Vs. N. Subbiah Choudhury, . wherein it has been held as follows:
From the decisions cited above the following principles clearlv emerge.
(i) That the legal pursuit of a remedy. suit, appeal and second appeal are really but steps in a series of proceedings all connected bv an intrinsic unity and arc to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested nght and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such nght is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.
True it is that in this case the Supreme Court has declared the law that the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit and the right of appeal is a vested right At the same time the Supreme Court unequivocally held that this vested nght of appeal can be taken away by a subsequent enactment if it so provides expressly or by necessary intendment In the present case, as held earlier, by a subsequent enactment expressly the appeal is to be heard in accordance with the provisions of the Act. The view which I have taken is in conformity with the view of the Supreme Court in this case.
Mr. Shrivastava. lastly submits that the Petitioners are not in a position to pay 75% of the amount of dues or for that matter an amount of Rs. 25 lacs which has been directed to be paid by the Debts Recovery Appellate Tribunal while considenng the application of waiver of predeposit Mr. Mukherjee controverts this assertion of the Petitioners and has drawn my attention to the statement of the Petitioners in paragraph 5.7(G). wherein Petitioners have averred that they arc prepared to pay Rs. 39 lacs for settlement of the dispute. It has been further pointed out by Sri Shrivastava that the Respondent''s loan is secured and hence the Debts Recovery Appellate Tribunal ought to have waived the payment Parliament in its wisdom has incorporated the provision for pre-deposit in the Act. In view of the Legislative intent whatever Course may be open to the Petitioners they are required to comply with the provision of pre-deposit subject of course to any order passed by the Debts Recover, Appellate Tnbunal. Beg. borrow or steal is the Legislative mandate and the Petitioners can not be absolved to obey the command of the law on the specious plea that they are unable to pay the amount. Legislature in its wisdom have not thought it proper to exempt even an indigent person from the ngor of pre-deposit
Mr Shnvastava contends that in case the submissions made by the Petitioners does not find favour with the Court, Petitioners be given some time to deposit the amount as directed by the Debts Recovery'' Appelate Tribunal. In the facts and circumstances of the case. I am of the opinion that in case the Petitioners deposit the amount within six weeks from today, appeal preferred by the Petitioners before the Debts Recover, Appellate Tnbunal shall be heard on merits.
In the result. I do not find any merit in the writ petition and it is dismissed with cost. Hearing fee Rs. 1000/- to be paid by the Petitioners to Respondent No 1.