It is always interesting to note References made to a Larger Bench – ones especially made on account of ‘difference’ of opinions amongst Equal Bench Strengths. Eventually, it is the Flocculation of the Law of the Land – per incuriam decisions stand filtered, retaining still its historical significance. Who is the SC judge known to have rendered the most number of per incuriam decisions? Which decision of the SC stood only for 9 months before being characterized as per incuriam? These are all interesting questions. And for now, I shall only provide a answer to the second: Devender Pal Singh Bhullar, (2013) 6 SCC 195 authored by Singhvi J. and decided on 12th April, 2013 that was said to have not declared the law of land in Shatrughan Chauhan, (2014) 3 SCC 1 decided on 21st January, 2014. Once a per incuriam decision is identified, more often than not, it is found to be revelatory of bigger stories. For example, see the comments on the Bhullar case by Senior Advocate, Mr. T.R. Andhyarujina in Chapter 17 of Roy’s “The Hanging of Afzal Guru: The Strange Case of the Attack on the Indian Parliament”. ‘Referred to Larger Bench‘ promises to be an interesting series for the purposes of this Blog.
There is consensus on the point of law that once a Bank or a Financial Institution, has applied for Recovery of its Loan against a Borrower under The Recovery of Debts Due to Banks and Financial Institutions Act, 1993, a suit containing a counter-claim or claiming a set-off filed by the Borrower can be heard and tried before the Debt Recovery Tribunal alone [See, (2000) 7 SCC 357]. In Indian Bank v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72 it was held, nonetheless, that independents suits or proceedings can be initiated by a Borrower before a Civil Court, which are not inextricably connected to the Bank’s Suit before the DRT. The Civil Court’s jurisdiction is not barred in that respect. The incremental reasoning of Marine Products has been put to question by several Benches of the SC. The most basic question remains this: Can at all the independent suit be filed before a Civil Court by the Borrower or is the independent suit liable to be transferred and tried by the DRT along with the Bank’s Suit for Recovery of its Loan. The two-judge bench in Bank of Rajasthan Ltd. v. VCK Shares and Stock Broking Services Ltd., 2014 (10) SCALE 643 (Gogoi and Bobde JJ) has Referred the Question to a Larger Bench, though it must be said the terms of the Reference could have been worded better by Bobde J and may, one day, fail.