JUDGMENT D.K. Seth, J.
1. The order dated 3rd August, 1998 passed by the Additional Civil Judge, Senior Division, Badaun in O.S. No. 39 of 1992 has since been challenged. Mr. A. K. Srivastava, learned counsel for the petitioner contends that the said order cannot be sustained and is wholly outside the jurisdiction of the learned Civil Judge and, therefore, he had Invoked the jurisdiction under Article 227 of this Court. According to him, by the said order the learned Civil Judge had transferred the records of the said suit to the Tribunal constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 situated at Jabalpur, Madhya Pradesh. it is contended by Mr. Srivastava that even if the same is taken to be an order of transfer within the meaning of Section 24 of the Code of Civil Procedure in that event, the learned Civil Judge could not have transferred the case beyond the territorial jurisdiction conferred on him. Even if it was exercised by the learned District Judge, the same could not have been transferred beyond the jurisdiction of the district. Therefore, the order is wholly without jurisdiction. Secondly, he contends that under the 1993 Act, the Tribunal possesses Jurisdiction in respect of matters in which debt exceeds Ten lakh rupees. in the present case, though the bank had sought to recover a sum of Fourteen lakh rupees and odd. in defence, the defendant-petitioner had contended that he had paid thirteen lakhs and is liable to pay only a sum of one lakh rupees. Therefore, he has raised a preliminary objection as to the valuation of the suit. According to him, unless the valuation determined. It cannot be possible to ascertain as to whether the matter would be cognizable by the Tribunal on account of its value exceeding Ten lakh rupees. According to Mr. Srivastava, there is a distinction between the valuation for the Court-fees and Jurisdiction and a distinction with regard to the valuation regarding the debt rendering the matter cognizable by the Tribunal under the 1993 Act. in order to transmit the records, the Court is bound to ascertain the value of the suit, without which it cannot be transmitted. Therefore, the Court had exercised its jurisdiction Illegally and irregularly and therefore, the order cannot be sustained. On these two grounds. Mr. Srivastava had contended that the order should be set aside and the valuation should be determined first before embarking upon deciding as to whether the Court had jurisdiction or not. He further contends that even if the Court comes to a decision, it has no jurisdiction in that event, it can only return the plaint. Since the Tribunal is at Madhya Pradesh outside the territorial jurisdiction of the learned. Civil Judge, he could not transfer the case outside his territorial Jurisdiction. Mr. Srivastava had also contended that in the agreement by which the loan was obtained, its jurisdiction was confined to Badaun since the bank was situated at Badaun and the defendant transacted his business at Badaun. Therefore, by reason of the agreement between the plaintiff and the defendants as well as by reason of cause of action, the Court at Badaun has jurisdiction solely and in no other Court. Therefore, this suit could not be transferred to the Tribunal at Jabalpur. Therefore, the order cannot be sustained.
2. Mr. K. L. Grover, learned counsel for the plaintiff - opposite parties on the other hand contends that by reason of Section 34 of 1993 Act. the question of Jurisdiction being confined to Badaun cannot be sustained. He further contends that by reason of Section 31, the records are to be transmitted to the Tribunal as soon it is constituted. Since there is a overriding effect of the Act. the question of transmission is to be determined conclusively on the basis of provision contained in 1993 Act. According to him, by reason of Section 31 the suits pending before any Court under sub-section (4) of Section 1 of the said Act shall stand transferred on the date of the constitution of the Tribunal and the Courts before which the suit is pending shall transmit the records to the Tribunal. It is not a transfer. It is only a transmission of the records. Since the transfer is by virtue of an enactment of the said Act having overriding effect. It was a statutory transfer by operation of law. It was not a common transfer as is understood within the meaning of Section 24 of the Code of Civil Procedure. As such the contention of Mr. Srivastava cannot be sustained. He then contends that the valuation is to be determined on the basis of the debt as mentioned in sub-section (4) of Section 1 read with Section 2 clause (9) by which the debt has since been defined. According to him, the question is to be determined on the basis of pleading that has been made out in the plaint. The defence cannot be gone into. He further contends that the question of determining the value does not arise since all suits which come within the meaning of sub-section (4) of Section 1, are automatically transferred on the constitution of the Tribunal on the date of its constitution. It is only a question of transmission. By reason thereof, the civil court had lost Its jurisdiction and it was not open to it even to determine the preliminary issue. Then again, the question of valuation with regard to court-fees and jurisdiction is the valuation of the suit Itself. It is question of jurisdiction and as such, the valuation relating to court-fees shall be the valuation for the jurisdiction. The difference that has been sought to be drawn by Mr. Srivastava, according to Mr. Grover, is untenable. Since the valuation is outside the purview of the revisional Jurisdiction of the District Judge, it is amenable to Section 115 of the Code of Civil Procedure and as such Article 227 cannot be invoked. The petitioner can convert this petition into one under Section 115 of the Code of Civil Procedure since in the meantime, the limitation has set in and such application shall be barred by limitation.
3. I have heard both the counsel at length.
4. The Recovery of Debts Due to Banks and Financial Institutions Act. 1993 being Act 51 of 1993 was enacted by the Parliament which came into effect from 24th June, 1993. in Section 34, the said Act provides overriding effect in the following manner-
Section 34: Act to have over-riding effect (1) Save as otherwise provided in sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effected by virtue of any law other than this Act.
(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act. 1948 (15 of 1948), the State Financial Corporations Act. 1951 (63 of 1951), the Unit Trust of India Act. 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984) and the Sick Industrial Companies (Special Provisions) Act. 1985 [1 of 1986).
5. A plain reading of Section 34 shows that save as otherwise provided in sub-section (2) of Section 34 of the said Act. notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. the provision of 1993 Act shall have overriding effect. Thus, the instrument by which the jurisdiction was confined to Badaun having effect by virtue of instrument confining jurisdiction to Badaun stands eclipsed of the provision contained in 1993 Act by reason of Section 34. As such the said question as raised by Mr. Srtvastava does not call for any determination.
6. Sub-section (4) of Section 1 prescribes the application of 1993 Act in respect of the suits as hereinafter.
Sub-section (4) of Section 1 The provisions of this Act shall not apply where the amount of debt due to any bank or financial institution or to a consortium of banks or financial institutions is less than ten lakhs rupees or such other amount, being not less than one lakh rupees, as the Central Government may, by notification, specify.
7. This provision makes it clear that the provision of 1993 Act will not apply where the amount of debt due to the bank is less than ten lakhs rupees. In the present case, it is not pointed out that the Central Government, by notification had specified any lesser amount. Be that as it may, in the present case the "valuation being Fourteen lakhs rupees, even if the amount is reduced, the same will not affect the present case. The expression 'Debt' has since been defined in Section 2 clause (g) in the following manner :
Section 2 clause (g)-
"debt" means any liability (inclusive of Interest) which is alleged as due from any person by a bank or a financial Institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or whether payable under a decree or order of any civil court or otherwise and subsisting on, and legally recoverable on, the date of the application.
8. The said definition shows that it means the liability that is alleged to be due from a person by the bank. Thus, it is not the debt what is admitted by the defendant but it is the debt what is alleged by the bank to be due from the defendant. Thus, the question of the debt attracting sub-section (4) of Section 1 is to be determined on the basis of the definition of 'debt' as contained in clause 2 (g) of the said Act. In the present case, the bank had alleged the debt due from the defendant at Rs. 14 Lakhs and odd. Therefore, subsection (4) of Section 1 is squarely attracted in the present cas'e.
9. The question of valuation is dependent on the valuation to be made on the basis of the pleadings made in the plaint. It is not dependent on the defence. The question of valuation is with regard to the payment of court fees and Jurisdiction. There cannot be any distinction with regard to the valuation of court-fees and that with regard to jurisdiction. The distinction that has been sought to be made by Mr. Srivastava does not seem to be tenable. In as much as in the present case, it is the question of jurisdiction that is to be determined, in as much as. It is the question as to whether the suit is cognizable by the Tribunal by reason of sub-section (4) of Section 1 or in other words, it is outside the Jurisdiction of the Tribunal which is to be determined on the basis of valuation. The valuation for court-fees, therefore, is synonymous with the valuation with regard to the jurisdiction and as such, the defence that has been sought to be made out, cannot be attracted in the present case since it is a question of Jurisdiction either of the civil court or of the Tribunal.
10. So far as the question of jurisdiction is concerned, admittedly, the learned Civil Judge cannot exercise jurisdiction to transfer a suit beyond the territorial jurisdiction conferred on him. Similarly, the learned District Judge cannot transfer a suit beyond the jurisdiction of the district. This proposition is firmly settled in law. The order appears to have been passed on the basis of an application made by the bank for transfer of the suit. This contention of Mr. Srivastava has since been disputed by Mr. Grover who contends that the application was for transmission of the records under Section 31 of the 1993 Act.
11. Be that as it may. It is not the form nor the nomenclature which is material. The substance of the application is material. Section 24 of the Code of Civil Procedure cannot be attracted in the present case in view of the overriding effect of 1993 Act. In as much as in this case, the transfer is being sought to be made by reason of Section 31 of the said Act. Section 31 of the said Act prescribes as follows :
Section 31 : Transfer of Pending cases :
(1) Every suit or other proceeding pending before any Court Immediately before the date of establishment of a Tribunal under this Act. being a suit proceeding the cause of action whereon it is based is such that it would have been. If it had arisen after establishment, within the Jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal :
Provided that nothing in this sub-section shall apply to any appeal pendlngs as aforesaid before any Court.
(2) Where any suit or other proceedings stands transferred from any Court to a Tribunal under sub-section (1) :
(a) the Court shall, as soon as may be after such transfer, forward the records of such suit or other proceeding to the Tribunal ; and
(b) the Tribunal may, on receipt of such records, proceed to deal with such suit or other proceedings, so far as may be. In the same manner as in the case of an application made under Section 19 from stage which was reached before such transfer or from any earlier stage or de-novo as the Tribunal may deem fit.
12. A plain reading of the said provision shows that the transfer intended therein is a transfer by reason of incorporation of Section 31 in the statute itself. The transfer is automatic as soon the Tribunal is constituted, by fiction of law. It does not require any aid of any other law. Section 31 provides that on the constitution of a Tribunal, all suits pending before any Court Immediately before the date of establishment of the Tribunal shall stand transferred on that date to such Tribunal. The expression 'that date' means the date of establishment of the Tribunal. Thus, the transfer was complete on the establishment of the Tribunal. No further order of transfer was necessary. On the other hand, by reason of Section 31, the jurisdiction of the civil court was withdrawn. By reason of statutory transfer of the suit in terms of Section 31 of the said Act. sub-section (2) requires transmission of the records. It is not the transfer of the suit. By reason of Section 31 read with Section 34 of the said Act, there was no alternative for the Court but to transmit the records of the case to the Tribunal. The Court is not required to pass any order of transfer of a suit. By reason of Section 31. It only forwards the records of the suit to the Tribunal. Thus, it is not a transfer within the meaning of Section 24 of the Code of Civil Procedure and as such the contention of Mr. Srivastava does not find any support.
13. In view of Section 31 of the said Act, civil court, had no alternative but to transmit the records of the suit as soon its attention is drawn. In the present case, the bank had made an application for transmission of the records under Section 31 of the said Act. Therefore, in view of Section 31 having regard to Section 34, the Court had rightly passed the order transmitting the records of the case to the Tribunal.
14. The grounds, on which this petition has been moved seeking to invoke Article 227, are the grounds of transfer in illegal exercise of Jurisdiction. In as much as, it is contended that question of valuation is to be determined first before transferring the case. Since it is already held that the valuation is to be determined on the basis of the definition of 'debt' provided in Section 2(g), it is no more open to the learned civil court to go into such question unless on the face of the record or the valuation of the suit as available by which the plaint shows that it is less than Ten lakh rupees. The operation of Section 31 is attracted. Since by reason of Section 31 read with Section 2(g), the valuation is to be decided on the face of debt as defined therein. By reason of operation of Section 31, the civil court has lost its jurisdiction. It was not open to it even to decide the question of valuation as a preliminary issue. The suit having been transferred to the Tribunal on the establishment of the Tribunal by reason of operation of Section 1 sub-
section (4) read with Section 2(g), the civil court cannot assume jurisdiction in the matter as it stood transferred automatically by fiction of law on the establishment of the Tribunal and as such this question cannot be gone into. Therefore, the order cannot be said to be without jurisdiction or to have been exercised illegally while exercising jurisdiction vested in it.
15. Be that as it may, even if it is an Illegal exercise of jurisdiction or if the order is without jurisdiction, then the same attracts the application of Section 115 of the Code of Civil Procedure which lies to this High Court because the valuation is above one lakh rupees which is outside the purview of the revisional jurisdiction conferred on the District Judge. Where Section 115 of C.P.C. Is available, Article 227 cannot be invoked. Be that as it may, the Court has power even to convert the application under Article 227 into one under Section 115 which is a settled proposition. The question of limitation can be removed by means of an application under Section 5 of the Limitation Act in which the Court is empowered to grant leave to the petitioner or the Court may also condone even without such application in appropriate cases, namely, that the petitioner was advised by his counsel to move an application under Article 227 which is a sufficient ground for condonation of delay. Be that as it may, in the present case, since I do not find any reason to interfere with the order passed by the learned civil Judge, it is not necessary to determine the question nor invoke the jurisdiction under Article 227 of the Constitution of India nor it is required to covert the application into one under Section 115 of the Code of Civil Procedure.
16. For all these reasons. I am unable to agree with the contention of Mr. Srivastava. The writ petition, therefore, falls and is accordingly, dismissed.
17. However, there will be no order as to costs.