LAW FOR ALL

Thursday, May 12, 2022

whether NonBanking Financial Companies (for short “NBFCs”) regulated by the Reserve Bank of India, in terms of the provisions of Chapter IIIB of the Reserve Bank of India Act, 1934 (hereinafter referred to as “RBI Act”) could also be regulated by State enactments such as Kerala Money Lenders Act, 1958 (hereinafter referred to as “Kerala Act”) and Gujarat Money Lenders Act, 2011 (hereinafter referred to as “Gujarat Act”), has arisen for our consideration in these appeals, with the Kerala and Gujarat High Courts taking opposite views.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION/

CRIMINAL ORIGINAL JURISDICTION

CIVIL APPEAL NO. 5233 0F 2012

NEDUMPILLI FINANCE COMPANY LIMITED … APPELLANT(S)

VERSUS

STATE OF KERALA & ORS. … RESPONDENT(S)

WITH

CIVIL APPEAL NO. 5230 OF 2012

CIVIL APPEAL NO. 5190 OF 2012

CIVIL APPEAL NO. 5191 OF 2012

CIVIL APPEAL NO. 5184 OF 2012

CIVIL APPEAL NO. 5241 OF 2012

CIVIL APPEAL NO. 5185 OF 2012

CIVIL APPEAL NO. 5111 OF 2012

CIVIL APPEAL NO. 5188 OF 2012

CIVIL APPEAL NO. 5187 OF 2012

CIVIL APPEAL NO. 5183 OF 2012

CIVIL APPEAL NO. 5113 OF 2012

CIVIL APPEAL NO.3857 OF 2022

(@Special Leave Petition (Civil) No.8331 of 2015)

TRANSFER PETITION (CRL.) NO. 359 OF 2015

CIVIL APPEAL NO. 5186 OF 2012

CIVIL APPEAL NO. 5192 OF 2012

CIVIL APPEAL NO. 5189 OF 2012

CIVIL APPEAL NO. 5112 OF 2012

CIVIL APPEAL NO. 5232 OF 2012

CIVIL APPEAL NO. 5231 OF 2012

CIVIL APPEAL NO. 5234 OF 2012

CIVIL APPEAL NO. 5237 OF 2012

CIVIL APPEAL NO. 5238 OF 2012

CIVIL APPEAL NO. 5315 OF 2012

CIVIL APPEAL NOS. 1878618787 OF 2017

CIVIL APPEAL NO. 1324 OF 2015

CIVIL APPEAL NO. 7836 OF 2012

J U D G M E N T

V. RAMASUBRAMANIAN, J.

1. The question as to whether NonBanking Financial Companies

(for short “NBFCs”) regulated by the Reserve Bank of India, in terms

of the provisions of Chapter IIIB of the Reserve Bank of India Act,

1934 (hereinafter referred to as “RBI Act”) could also be regulated by

State enactments such as Kerala Money Lenders Act, 1958

(hereinafter referred to as “Kerala Act”) and Gujarat Money Lenders

Act, 2011 (hereinafter referred to as “Gujarat Act”), has arisen for

our consideration in these appeals, with the Kerala and Gujarat

High Courts taking opposite views.

2. We have heard the learned counsel for the respective parties,

the learned senior counsel appearing for the State of Kerala, the

learned standing counsel appearing for the State of Gujarat and the

learned counsel appearing for RBI.

FACTUAL MATRIX

3. A brief sojourn into the factual matrix may provide the setting,

in the context of which, the above question of law has arisen. It

goes as follows:

KERALA

3.1 The legislature of the State of Kerala passed the Kerala Act,

1958, with the professed object of providing for the regulation and

control of the business of money lending in the State of Kerala. The

statement of objects and reasons spelt out, that by passing the said

enactment, “it was intended to regulate the interest to be charged by

money lenders and to provide protection to borrowers”. At the time

when this Act was enacted, the concept of nonbanking financial

companies was not very familiar in India. Therefore, the Reserve

Bank of India and the Parliament had not stepped in to regulate

financial companies which were not banks or banking companies.

3.2 It appears that after the mushroom growth of NBFCs, the

Government of Kerala started insisting upon NBFCs to take a

license under the Kerala Act, failing which penal consequences were

threatened. Therefore, after unsuccessfully approaching the

Government of Kerala for exemption, NBFCs filed a batch of writ

petitions on the file of the High Court of Kerala.

3.3 A learned Judge of the High Court of Kerala dismissed the

batch of writ petitions and the said order was confirmed by the

Division Bench of the High Court. Therefore, NBFCs operating in

the State of Kerala have come up with the above batch of appeals.

3.4 All the appeals, by the NBFCs operating in the State of Kerala,

arise out of writ petitions seeking a declaration that NBFCs

registered under the RBI Act will not come within the purview of the

Kerala Act. Apart from several appeals, there is also a petition in

Transfer Petition (Crl.) No.359 of 2015, filed by the Chief Executive

Officer of one NBFC by name Bajaj Finance Limited, seeking a

transfer of the quash petition pending on the file of the High Court

of Kerala under Section 482 of the Code of Criminal Procedure

praying for quashing an FIR registered under the Kerala Act.

GUJARAT

3.5 The Bombay Money Lenders Act, 1946, which was applicable

in the State of Gujarat, was sought to be invoked by the Registrar in

the office of the Prevention of Money Lenders, against NBFCs

operating in the State of Gujarat, in the year 2009. Challenging the

action so initiated, NBFCs filed a batch of special civil applications

before the High Court of Gujarat. When it was pending, the decision

of the Kerala High Court came. But disagreeing with the view taken

by the Kerala High Court, a learned Judge of the Gujarat High

Court quashed the notices issued to the NBFCs under the Bombay

Money Lenders Act, by a judgment dated 13.01.2010.

3.6 Thereafter, the legislature of the State of Gujarat passed the

Gujarat Act, 2011 (Gujarat Act 14 of 2011) which received the

assent of the Governor on 6.04.2011 and was published in the

Gujarat Government Gazette on 8.04.2011.

3.7 Therefore, a fresh batch of special civil applications were filed,

seeking a declaration that the provisions of the Gujarat Act 14 of

2011 are not applicable to NBFCs registered under the RBI Act. The

Division Bench of the High Court allowed the special civil

applications holding that Gujarat Act 14 of 2011 is ultra vires the

Constitution for legislative incompetence, to the extent that it seeks

to have control over NBFCs registered under the RBI Act. A

consequential direction was also issued by the Gujarat High Court

restraining the State Government from applying the provisions of

the Gujarat Act against NBFCs registered under the RBI Act.

Therefore, the State of Gujarat has come up with Civil Appeals.

Scheme of Kerala Act, Gujarat Act and RBI Act

4. In the background of the facts narrated above, the legal issue

arising for consideration has to be resolved by looking at the

scheme of the two State enactments, the scheme of RBI Act and the

relevant Entries in the appropriate List of the Seventh Schedule, to

which these enactments can be traced.

4.1 ListI of the Seventh Schedule to the Constitution contains

three entries which may be taken note of. They are:

(i) Entry No.38: Reserve Bank of India

(ii) Entry No.43: incorporation, regulation and winding

up of trading corporations including banking,

insurance and financial corporations but not including

cooperative societies.

(iii) Entry No.45: Banking

4.2 List II (State List) of the Seventh Schedule contains an entry

in Entry No.30, which reads: “money lending and money lenders;

relief of agricultural indebtedness”.

4.3 Therefore, any State enactment regulating the business of

money lending and intended to afford protection to borrowers, may

fall under Entry No.30 of ListII. But at the same time any

parliamentary enactment dealing with incorporation, regulation and

winding up of financial corporations, would fall under Entry No.43

in ListI.

4.4 Therefore, at the outset, it is clear that the competence of the

legislatures of the States of Kerala and Gujarat to enact a law for

the regulation of the business of money lending cannot be

questioned, as their power is traceable to Entry 30 of ListII of the

Seventh Schedule. But at the same time, we will have to see

whether after the enactment of a law by the Parliament for the

incorporation and regulation of financial corporations, such

financial corporations would continue to be regulated also by the

State enactments, on the ground that they may also fall within the

definition of the expression “money lenders” under the State

enactments.

4.5 For finding an answer to the above question, it may be useful

to take a bird’s eye view of the scheme of the Kerala and Gujarat

State enactments.

Broad scheme of Kerala Act

4.6 In a way, the Kerala Act is a legacy of the Madras Pawn

Brokers Act, 1943, whose provisions continued to be in force in the

Malabar District, even after the States Reorganisation Act, 1956,

until it was repealed by Kerala Money Lenders (Amendment) Act 33

of 1963.

4.7 As seen from the statement of objects and reasons, the only

object of the Kerala Money Lenders Act was to afford protection to

borrowers from unscrupulous money lenders who advanced

usurious loans. Though it was proclaimed in the statement of

objects, in general terms, that it was intended to regulate the

business of money lending, the Act was primarily intended only to

cover one aspect of the business of financing.

4.8 Section 2(7) of the Kerala Act, defines a “money lender” as

follows:

“2. Definitions. xxx xxx xxx

(7) “moneylender” means a person whose main or

subsidiary occupation is the business of advancing and

realising loans or acceptance of deposits in the course of such

business and includes any person appointed by him to be in

charge of a branch office or branch offices or a liaison office or

any other office by whatever name called, of his principal

place of business and a pawn broker, but does not include

(a) a bank or a cooperative society; or

(b) the Life Insurance Corporation of India established

under section 3 of the Life Insurance Corporation Act,

1956 (Central Act 31 of 1956); or

(bb) the Industrial Credit and Investment Corporation of

India Limited incorporated under the India Companies

Act, 1913 (7 of 1913);

section 3 of the Industrial Finance Corporation Act,

1948 (Central Act 15 of 1948); or

(d) x x x x

(e) the State Financial Corporation established under

section 3 of the State Financial Corporation Act, 1951

(Central Act 63 of 1951); or

(f) any institution established by or under an Act of

Parliament or the Legislature of a State, which grants

any loan or advance in pursuance of the provisions of

that Act or,

(g) any other institution in the public sector, whether

incorporated or not exempted by the Government by

notification.

Explanation I. Where a person, who carries on in the State ―

Kerala the Business of advancing and realising loans is

resident outside the State, the agent of such person resident

in the State shall be deemed to be the moneylender in respect

of that business for the purposes of this Act.

Explanation II. For the purposes of this Clause, clause (7A), ―

Proviso to subsection (1) of section 3, clause (a) of subsection

(3) of section10, [section 16B] and section 17, the word

“person” shall include “a firm or a joint family;””

4.9 As seen from the definition, 7 different types of business

entities are excluded from the definition of the expression “money

lending”. A financial corporation which is not a bank and which is

otherwise known as NBFC, is not listed as one of the entities

excluded from the definition of the expression “money lender”.

4.10 A bank is excluded from the definition of the expression

“money lender”, by virtue of clause (a). But the word “bank” is

defined in Section 2(1A) as follows:

“Sec. 2 (1A) “bank” means

(i) a banking company to which the Banking Regulation

Act, 1949 (Central Act 10 of 1949), applies;

(ii) the State Bank of India constituted under the State

Bank of India Act, 1955 (Central Act 23 of 1955);

(iii) a subsidiary bank as defined in clause (k) of section of

the State Bank of India (Subsidiary Banks) Act. 1939

(Central Act 38 of 1959);

(iv) the Industrial Development Bank of India established

under the Industrial Development Bank of India Act,

1964 (Central Act 18 of 1964);

(v) a corresponding new bank constituted under section 3

of the Banking Companies (Acquisition and Transfer of

Undertakings) Act, 1970 (Central Act 5 of 1970);

(vi) a Regional Rural Bank established under the Regional

Rural Banks Act, 1976 (Central Act 21 of 1976);

(vii) a corresponding new bank constituted under section 3

of the Banking Companies (Acquisition and Transfer

of Undertakings) Act, 1980 (Central Act 40 of 1980);

(viii) the Export Import Bank of India established under the

Export Import Bank of India Act, 1981, (Central Act 28

of 1981);

(ix) the National Bank for Agriculture and Rural Development

established under the National Bank for

Agriculture and Rural Development Act, 1981 (Central

Act 61 of 1981);

(x) the Industrial Reconstruction Bank of India established

under the Industrial Reconstruction Bank of India Act,

1984 (Central Act 62 of 1984);

4.11 The Banking Regulation Act, 1949 defines a “banking

company” under Section 5(c) as follows:

“5. Interpretation –

xxx xxx xxx

the business of banking in India;

Explanation. Any company which is engaged in the

manufacture of goods or carries on any trade and which

accepts deposits of money from the public merely for the

purpose of financing its business as such manufacturer or

trader shall not be deemed to transact the business of

banking within the meaning of this clause;”

4.12 The word “banking” itself is defined in Section 5(b) of the

Banking Regulation Act, 1949 as follows:

“5. Interpretation –

xxx xxx xxx

(b) "banking" means the accepting, for the purpose of

lending or investment, of deposits of money from the

public, repayable on demand or otherwise, and

withdrawal by cheque, draft, order or otherwise;”

4.13 By virtue of the definition of the word “banking” contained in

Section 5(b) of the Banking Regulation Act, 1949, an institution or

business entity which does not accept deposits of money from the

public, either for the purpose of lending or for the purpose of

investment, will not be a banking company. While a banking

company may be involved in both the business of accepting

deposits and lending money, a financial institution which is

engaged only in the business of lending, may not be covered by the

definition of the expression “banking company” under the Banking

Regulation Act, 1949.

4.14 Since NBFCs which do not accept deposits from the public do

not come within the purview of the Banking Regulations Act, the

Reserve Bank of India Act, 1934 had to step in. To make things

more clear that there is no duplication of control, Section 45H of

the RBI Act states that the provisions of Chapter IIIB shall not

apply to a Banking Company as defined in Section 5 of the Banking

Regulation Act.

4.15 But the definition of “money lender” in the Kerala Act

excludes only a “bank” to which the Banking Regulation Act

applies. It does not exclude a non banking institution from the

definition. Therefore, the Kerala State authorities started claiming

and technically rightly so, that NBFCs are not excluded from the

definition of “money lender”. Though the NBFCs claimed that under

clause (f) of subsection (7) of Section 2, “any institution established

by or under an Act of Parliament or the Legislature of a State” are

excluded from the definition of the expression “moneylender” and

that NBFCs are established under a Parliamentary enactment, this

argument was found by the State to be based on a convoluted logic.

We also think that the State was right in thinking so, since NBFCs

are not established by or under an Act of Parliament or the

legislature of a State. Incorporation/registration of a business

entity under an Act of Parliament or the Legislature of a

State, is completely different from being established by or

under an Act. For instance, all companies are incorporated under

the Companies Act. But a corporation like the LIC of India, is

established under the LIC of India Act. Therefore, the appellants

were not right in claiming that they fall under the exclusion clause

in clause (f) of subsection (7) of Section 2. Keeping this aspect in

mind, let us now see the scheme of the Kerala Act.

4.16 The scheme of the Kerala Act is:

(i) To make it obligatory for a money lender to obtain a

licence under the Act;

(ii) To prohibit any person from carrying on or continuing

the business of money lending without licence;

(iii) To prevent money lenders from charging interest at a rate

higher than the rate prescribed under the Act;

(iv) To prevent money lenders from giving any gifts,

commissions or presents other than the interest provided

in Section 4(2) to any depositor;

(v) To enable the debtor to deposit the money due in respect

of a loan, into any Court having jurisdiction to entertain

a suit for recovery of the loan and to seek the recording of

full or part satisfaction of the loan;

(vi) To make it mandatory for money lenders to keep books

of accounts and to give receipts;

(vii) To make it compulsory for a pawn broker to issue a pawn

ticket, the possession of which will give rise to a

presumption that the holder of the pawn ticket has a

right to redeem the pledge;

(viii) To prescribe the procedure for redemption of pledge, sale

of pledge and compensation for depreciation of pledge;

(ix) To appoint inspectors with certain powers of inspection

and search;

(x) To empower the licensing authority to demand additional

security from the money lender, if there is excess of

liabilities over the assets of the money lenders at any

time; and

(xi) Providing for cancellation of licence, forfeiture of security

and imposing penalty for violation of the provisions of the

Act.

5. Gujarat Act

5.1 The Gujarat Act defines a “money lender”, in Section 2(10) to

mean “an individual, a HUF, a company, a pawnbroker or

unincorporated company (i) who/which carries on the business

of money lending in the State or (ii) who/which has his

principal or subsidiary place of such business in the State”.

5.2 The expression “business of money lending” is defined in

Section 2(3) to mean “the business of advancing loans, whether

in cash or kind and whether or not in connection with or in

addition to any other business and includes the business of

payment of loan by an agreement under any law for the time

being in force”.

5.3 By virtue of the aforesaid definitions, the application of the

Gujarat Act to any business entity/individual revolves around the

definition of the word “loan”. It is defined in Section 2(9) as follows:

“loan” means an advance whether of money or in kind, at an

interest, with or without security, and includes advance, discount,

money paid for or on account of or on behalf of or at the request of

any person, or the forbearance to require payment of money

owing on any account whatsoever, and every agreement under

any law for the time being in force (whatever its terms or form

may be) which is in substance or effect a loan of money, but does

not include –

(a) a deposit of money or other property in a Government post

office, a bank, a company or a cooperative society;

(b) a loan to, or by, or a deposit with any society or association

registered under the Societies Registration Act, 1860, or any other

enactment relating to a public, religious or charitable object;

authority authorized by the State Government;

(d) a loan advanced to a Government employee from a fund,

established for the welfare or assistance of Government

employees and which is sanctioned by the State Government;

(e) a deposit of money with or a loan advanced by a cooperative

society;

(f) an advance made to a subscriber to, or a depositor in, a

provident fund from the amount standing to his credit in the fund

in accordance with the rules of the fund;

(g) a loan to or by an insurance company as defined in the

Insurance Act, 1938;

(h) a loan advanced by a Government company as defined in the

Companies Act, 1956;

(i) an advance made bona fide by any trader carrying on any

business, other than moneylending, if such advance is made in

the regular course of such business;

(j) a loan advanced by the National Bank for Agriculture and

Rural Development established under the National Bank for

Agriculture and Rural Development Act, 1981;

(k) a loan advanced by the ExportImport Bank of India

established under the ExportImport Bank of India Act, 1981;

(l) a loan advanced by the Small Industries Development Bank of

India, established under the Small Industries Development Bank

of India Act, 1989;

(m) a loan advanced by the National Housing Bank, constituted

under the National Housing Bank Act, 1987 ;

(n) a loan advanced by State Financial Corporations established

under the State Financial Corporations Act, 1951 ; and

(o) a loan advanced by any institution (1) established by or

under an Act of Parliament or the legislature of a State, which

grants any loan or advance in pursuance of the provisions of that

Act, or (2) notified in this behalf by the State Government, in

consultation with the Reserve Bank;

5.4 By virtue of the aforesaid definitions, the authorities under the

Gujarat Act sought to apply the provisions of the Act to NBFCs also.

Therefore, it is essential that we look at the scheme of the Act.

5.5 The broad scheme of the Gujarat Act is :

(i) To provide for the registration of money lenders;

(ii) To prohibit any person from carrying on the business of

money lending without a valid certificate of registration in

respect of the area concerned;

(iii) To empower the Registrar General, Registrar and other

officers appointed under the Act to require the

production of records and documents and to carry out

searches and seizures;

(iv) To mandate every money lender to keep and maintain

proper books of Accounts and other registers;

(v) To make it obligatory for money lenders to file yearly

statement of accounts of each of the debtors;

(vi) To prohibit the disposal of any article taken by a money

lender from a debtor as a bond, pledge or security for the

loan advanced, for a period of two years from the date

stipulated for financial repayment of the loan;

(vii) To regulate the powers of the Civil Court while deciding

the suits to which the Act applies, so that the Court is

satisfied that the provisions of the Act are complied with;

(viii) To curtail the power of the Court to award interest in a

sum greater than the principal of the loan due on the

date of the decree;

(ix) To empower the Court to allow payment of the decretal

amount by instalments;

(x) To empower the Court even to reopen past transactions;

(xi) To enable the borrower to deposit the amounts due in

respect of a loan into Court;

(xii) To empower the State Government to fix the maximum

rate of interest, for any local area or class of business;

(xiii) To prohibit money lenders from receiving from the debtor,

any amount by way of costs, charges or expenses;

(xiv) To make it obligatory for the money lender to provide

advance information, whenever the loan is assigned to a

third party;

(xv) To prohibit money lenders from accepting any promissory

note, acknowledgment, bond or other writing which does

not state the actual amount of loan or which states the

amount wrongly or which contains erasures or overwriting; and

(xvi) To provide for penalties for contravention of the

provisions of the Act.

5.6 It may be of interest to note that Section 39 of the Gujarat Act

contains a very strange provision which reads as follows:

“Notwithstanding anything contained in this Act or any other

law for the time being in force, no money lender shall recover

the principal of the loan advanced by him or the interest

thereon either in part or in whole except in cash.”

5.7 Though we are not concerned with the validity of such a

provision we could not resist the temptation to take note of the said

provision which is in the teeth of Section 269SS of the Income Tax

Act, 1961.

6. Role of RBI, the scheme of Chapter IIIB of the RBI Act

and the Regulatory measures taken by RBI from time to time

6.1 As observed by this Court in Internet and Mobile

Association of India vs. Reserve Bank of India1

, “the role of a

Central Bank such as the Reserve Bank, in an economy, is to

manage (i) the currency; (ii) the money supply and (iii) interest

rates”. One of the objects the Reserve Bank of India Act, 1934 as

spelt out in its preamble is “to operate the currency and credit

system of the country to its advantage”.

1 (2020) 10 SCC 274

6.2 Therefore, in contrast to the state enactments regulating the

business of money lending, whose oneeyed focus is only the

protection of borrowers, the RBI Act takes a holistic approach to the

business of banking, money lending and operation of the currency

and credit system of the country. But when RBI Act was enacted,

the business of banking and finance was not as complicated as it

later turned out to be.

6.3 In the early 1960s, the Government found it necessary to

regulate institutions which were not banks, but which were

carrying on other businesses allied to banking. Therefore, a bill to

amend the RBI Act, The Banking Companies Act, 1949, and the

State Bank of India (Subsidiary Banks) Act, 1959 was introduced in

November, 1963. The Statement of Objects and Reasons spelt out

that the existing enactments relating to banks did not provide for

any control over such banks or institutions and that therefore it

was felt necessary that the RBI should be enabled to regulate the

conditions on which deposits may be accepted by nonbanking

companies or institutions, for the purposes of ensuring more

effective supervision and management of the monetary and credit

system by the Reserve Bank. One of the important objects spelt out

in the Statement of Objects and Reasons reads as follows:

“The Reserve Bank should also be empowered to give to any

financial institution or institutions directions in respect of

matters, in which the Reserve Bank, as the central banking

institution of the country, may be interested from the point of

view of the control of credit policy”

Clause (5) of the Notes on Clauses accompanying the Bill read as

follows:

“Clause 5.A new Chapter is proposed to be introduced in the

Reserve Bank of India Act for enabling that bank to obtain

returns and information from (a) certain financial institutions,

namely, firms, companies or other bodies corporate which are

financing trade, industry, commerce or agriculture, or are

carrying on as a part of their business the acquisition of

shares, stocks, bonds, debentures or other securities, or are

engaged mainly in the financing of hirepurchase transactions

and (b) nonbanking institutions accepting deposits from

members of the general public. The objects in view are to

provide for

(i) the supervision and control of the financial

institutions mentioned above in the interests of better or

more effective control of credit, and

(ii) the regulation of the business of acceptance

of deposits by these and other nonbanking institutions,

in the public interest.

The Reserve Bank will be empowered to provide, by general

or special order, for the forms in which returns and

information are to be furnished to it, and also to give

directions to any class of institutions or to any institution in

particular for the purposes specified. The Reserve Bank will

also be enabled to carry out inspections, where necessary,

for carrying out the purposes of the new Chapter.”

6.4 Accordingly, the Banking Laws (Miscellaneous Provisions Act),

1963, was enacted, amending the provisions of the aforesaid three

Parliamentary enactments. It was by this amendment which came

into force on 01.02.1964 that Chapter IIIB was inserted in RBI Act.

The Chapter heading for this Chapter read as, “Provisions Relating

to NonBanking Institutions Receiving Deposits and Financial

Institutions”. However, this Chapter IIIB was made inapplicable

under Section 45H to a banking company as defined in Section 5

of the Banking Companies Act, 1949. Section 45I defined a

‘financial institution’ under clause (c) to mean any nonbanking

institution which carries on the business of financing or the

business of acquisition of shares, stocks etc., or the business of

hirepurchase transactions.

6.5 Chapter IIIB as it was introduced by the Banking Laws

(Miscellaneous Provisions Act), 1963, contained no spellbinding or

pathbreaking provisions. Broadly, Chapter IIIB as it was originally

introduced in 1963, (i) empowered RBI to regulate or prohibit the

issue of prospectus or advertisement soliciting deposits of money;

(ii) empowered the RBI to collect information from nonbanking

institutions about deposits and to give directions; (iii) empowered

the RBI to call for information from financial institutions and to give

directions, for the purpose of regulating the credit system of the

country; (iv) obliged the nonbanking institutions to furnish

statements to the RBI; (v) provided for inspection by RBI; (vi)

prescribed penalties for any violation and conferred overriding effect

to Chapter IIIB over other laws.

6.6 After the introduction of Chapter IIIB under Act 55 of 1963,

three amendments which are not relevant for our purpose, were

made to the provisions contained in Chapter IIIB, under Act 51 of

1974, Act 21 of 1976 and Act 1 of 1984.

6.7 Post the insertion of Chapter IIIB under Act 55 of 1963, the

working of nonbanking financial intermediaries came to be

reviewed by two study groups, one under the chairmanship of Dr.

Bhabhatosh Datta in 1971 and another under the chairmanship of

Shri James Raj in 1975. Certain recommendations were made by

these two study groups. Thereafter, the issue was considered by

three other committees namely, (i) the Committee to Review the

Working of the Monetary System (Chakravarty Committee1985);

(ii) the Working Group on the Money Market (Vaghul Committee1987); and (iii) the Committee on the Financial System

(Narasimham Committee1991).

6.8 Those reports and various socioeconomic and political factors

led to the liberalisation of the economy in 1991. The liberalisation of

the economy saw the growth of nonbanking financial services

sector in India accompanied by a corresponding growth in the

number of NBFCs offering a diversified range of financial services

and products. Therefore, a need was felt for rationalisation of the

regulatory framework for these companies keeping in view the trend

towards liberalisation of economy in general and the financial sector

in particular. In order to make an indepth study of the role of

NBFCs and to suggest regulatory and control measures to ensure

healthy growth and operations of these companies, RBI constituted

a Working Group under the Chairmanship of Dr. A.C. Shah, in

May, 1992. The terms of reference of the Working Group in simple

terms2

were:

2 Report of the Working Group on Financial Companies C.R. 483 submitted in September,

1992

(i) To review the role of various categories of nonbanking

financial intermediaries;

(ii) To review the provisions of the RBI Act, 1934; NonBanking Financial Companies (Reserve Bank) Directions

1977, Miscellaneous NonBanking Companies (Reserve

Bank) Directions, 1977; Residuary NonBanking

companies (Reserve Bank) Directions, 1987; The National

Housing Bank Act, 1987 and The Housing Finance

Companies (NHB) Directions, 1989;

(iii) To enquire into the methods of operation of nonbanking

financial intermediaries and to recommend measures for

ensuring their orderly growth and in particular, the

eligibility criteria for their entry, growth and exit, their

viability, capital adequacy, liquidity ratio, debt equity

ratio, credit concentration ratio, disclosure requirements

and other prudential norms;

(iv) To consider the adequacy of the supervision and control

of RBI over such institutions and suggest measures for

further strengthening them;

(v) To examine the adequacy of protection to depositors’

money; and

(vi) To make recommendations on any other related matter.

6.9 The Working Group chaired by Dr. A.C. Shah, took note of the

fact that the total number of NBFCs which stood at 7063 in 1981

increased to 24,009 by 1990 and that there were different categories

of NBFCs operating in the country such as loan companies,

investment companies, hirepurchase finance companies, equipment

leasing companies, mutual benefit finance companies,

miscellaneous finance companies, miscellaneous nonbanking

companies, residuary nonbanking companies and housing finance

companies. This Working Group actually recommended in

paragraph 6.72 of its Report that though NBFCs were being

regulated by the directions issued under Chapter IIIB of the RBI Act

and ChapterV of the NHB Act, it would be better to enact a separate

legislation. The Working Group went to the extent of recommending

that such a legislation should be put under Schedule IX of the

Constitution.

6.10 All the above led to the promulgation of the Reserve Bank of

India (Amendment) Ordinance, 1997 on 09.01.1997. Subsequently,

a bill was introduced which became the Reserve Bank of India

(Amendment) Act, 1997. This Act completely revamped Chapter IIIB

by amending the definition provision in Section 45I and inserting

certain new provisions such as Section 45IA, 45IB, 45IC, 45JA,

45MB, 45MC etc. After the amendment made to Chapter IIIB by

Act 23 of 1997, this Chapter has become a complete Code in so far

as NBFCs are concerned. This can be seen from various provisions

of Chapter IIIB, which is summarized in the form of a table for easy

reference as follows:

PROVISION REQUIREMENT

Section 45 IA (i) Certificate of Registration mandatory for a

NBFC to commence or carry on the business of a

nonbanking financial institution.

(ii) Such NBFC should have a netowned fund of

Rs.25 lakhs or such other amount not exceeding

Rs. 100 crores, as the RBI may prescribe.

(iii) The application for registration shall be

considered by RBI subject to certain parameters

prescribed in subsection (4)

Section 45IB (i) NBFCs have to invest in unencumbered

approved securities, such amount which shall not

be less than 5% or such higher percentage not

exceeding 25% prescribed by RBI.

(ii) Every NBFC should furnish a return to RBI,

so as to ensure compliance with the provisions of

this Section.

(iii) Penal interest is liable to be levied if there

was a shortfall in the investment.

Section 45IC (i) Every NBFC should create a reserve fund and

transfer to the said fund a sum not less than 20%

of its net profit every year. No part of the reserve

fund shall be appropriated by the NBFC except for

a purpose stipulated by RBI.

Section 45ID (i) RBI is entitled to remove the Director of an

NBFC from office, if it is satisfied that it is

necessary to do so in public interest or to prevent

the affairs of a NBFC being conducted in a manner

detrimental to the interest of the depositors or

creditors or financial stability or for securing the

proper management of such company.

Section 45IE (i) RBI will have the power of supersession of the

Board of Directors of a NBFC in public interest etc.

Section 45J (i) RBI will have the power to regulate or prohibit

the issue of prospectus or advertisement soliciting

deposits of money.

Section45JA (i) In public interest or for the regulation of the

financial system of the country to its advantage or

to prevent the affairs of any NBFC being

conducted in a manner prejudicial to the interest

of the depositors or prejudicial to the interest of

the NBFC, RBI may determine the policy and give

directions.

Section 45K (i) RBI may demand every nonbanking institution

to furnish such statements of information or

particulars relating to or connected with the

deposits received by the NBFCs.

Section 45L (i) RBI will have the power to require financial

institutions to furnish such statements,

information or particulars relating to the business

of such financial institutions and to give such

directions.

Section 45M (i) It shall be the duty of every NBFC to furnish

the statements, information or particulars called

for and to comply with any direction issued by

RBI.

Section 45MA RBI will have the power to issue directions to the

Auditors of NBFCs relating to balancesheet,

profit and loss account, disclosure of liabilities in

the books of accounts or any other matter.

Section 45 MAA RBI can take action against the Auditors who fail

to comply with any of the directions.

Section 45MBA RBI may frame schemes providing for the

amalgamation of NBFCs or the reconstruction of a

NBFC etc., if RBI is satisfied upon inspection of

the books of accounts that it is in public interest

or in the interest of financial stability to do so.

Section 45MC RBI will be entitled to move an application for the

winding up of an NBFC, under certain

circumstances.

Section 45N Power of inspection.

Section 45NAA RBI may at any time direct a NBFC to annex to

its financial statements, such statements and

information relating to the business or affairs of

any group company of NBFC.

Section 45NC RBI may exempt a NBFC from the application of

any or all of the provisions of Chapter IIIB

6.11 The above scheme of Chapter IIIB of the RBI Act shows that

the power of intervention available for the RBI over NBFCs, is from

the cradle to the grave. In other words, no NBFC can carry on

business without being registered under the Act and a NBFC which

takes birth with the registration under the Act is liable to be wound

up at the instance of the RBI. The entire life of a NBFC from the

womb to the tomb is also regulated and monitored by RBI.

6.12 At this juncture it may be ideal to extract some of the relevant

provisions of Chapter IIIB.

6.13 A Nonbanking financial company is defined in clause (f) of

Section 45I as follows:

“45I.

(f) “nonbanking financial company” means –

(i) a financial institution which is a company;

(ii) a nonbanking institution which is a company

and which has as its principal business the

receiving of deposits, under any scheme or

arrangement or in any other manner, or

lending in any manner;

(iii) such other nonbanking institution or class of

such institutions, as the Bank may, with the

previous approval of the Central Government

and by notification in the Official Gazette,

specify.”

6.14 Section 45JA which gives power to the RBI to determine the

policy and issue directions, reads as follows:

“45JA. Power of Bank to determine policy and issue

directions. (1) If the Bank is satisfied that, in the public

interest or to regulate the financial system of the country to

its advantage or to prevent the affairs of any nonbanking

financial company being conducted in a manner detrimental

to the interest of the depositors or in a manner prejudicial to

the interest of the nonbanking financial company, it is

necessary or expedient so to do, it may determine the policy

and give directions to all or any of the nonbanking financial

companies relating to income recognition, accounting

standards, making of proper provision for bad and doubtful

debts, capital adequacy based on risk weights for assets and

credit conversion factors for off balancesheet items and also

relating to deployment of funds by a nonbanking financial

company or a class of nonbanking financial companies or

nonbanking financial companies generally, as the case may

be, and such nonbanking financial companies shall be

bound to follow the policy so determined and the direction so

issued.

(2) Without prejudice to the generality of the powers

vested under subsection (1), the Bank may give directions to

nonbanking financial companies generally or to a class of

non banking financial companies or to any nonbanking

financial company in particular as to

(a) the purpose for which advances or other fund

based or nonfund based accommodation may

not be made; and

(b) the maximum amount of advances or other

financial accommodation or investment in

shares and other securities which, having regard

to the paidup capital, reserves and deposits of

the nonbanking financial company and other

relevant considerations, may be made by that

nonbanking financial company to any person or

a company or to a group of companies.”

6.15 Section 45K which empowers the RBI to collect information

reads as follows:

“45K. Power of Bank to collect information from nonbanking institutions as to deposits and to give

directions. –

(1) The Bank may at any time direct that every nonbanking

institution shall furnish to the Bank, in such form, at such

intervals and within such time, such statements information

or particulars relating to or connected with deposits received

by the nonbanking institution, as may be specified by the

Bank by general or special order.

(2) Without prejudice to the generality of the power

vested in the Bank under subsection (1), the statements,

information or particulars to be furnished under subsection

(1), may relate to all or any of the following matters, namely,

the amount of the deposits, the purposes and periods for

which, and the rates of interest and other terms and

conditions on which, they are received.

(3) The Bank may, if it considers necessary in the

public interest so to do, give directions to nonbanking

institutions either generally or to any nonbanking

institution or group of nonbanking institutions in

particular, in respect of any matters relating to or connected

with the receipt of deposits, including the rates of interest

payable on such deposits, and the periods for which deposits

may be received.

(4) If any nonbanking institution fails to comply

with any direction given by the Bank under subsection (3),

the Bank may prohibit the acceptance of deposits by that

nonbanking institution.

[***]

(6) Every nonbanking institution receiving deposits

shall, if so required by the Bank and within such time as the

Bank may specify, cause to be sent at the cost of the nonbanking institution a copy of its annual balancesheet and

profit and loss account or other annual accounts to every

person from whom the nonbanking institution holds, as on

the last day of the year to which the accounts relate,

deposits higher than such sum as may be specified by the

Bank.”

6.16 Section 45L empowers RBI to call for information and to give

directions. It reads as follows:

“45L. Power of Bank to call for information from

financial institutions and to give directions.(1) If the

Bank is satisfied for the purpose of enabling it to regulate

the credit system of the country to its advantage it is

necessary so to do, it may

(a) require financial institutions either generally or

any group of financial institutions or financial

institution in particular, to furnish to the Bank

in such form, at such intervals and within such

time, such statements, information or

particulars relating to the business of such

financial institutions or institution, as may be

specified by the Bank by general or special

order;

(b) give to such institutions either generally or to

any such institution in particular, directions

relating to the conduct of business by them or

by it as financial institutions or institution.

(2) Without prejudice to the generality of the power

vested in the Bank under clause (a) of subsection (1), the

statements, information or particulars to be furnished by a

financial institution may relate to all or any of the following

matters, namely, the paidup capital, reserves or other

liabilities, the investments whether in Government securities

or otherwise, the persons to whom, and the purposes and

periods for which, finance is provided and the terms and

conditions, including the rates of interest, on which it is

provided.

(3) In issuing directions to any financial institution

under clause (b) of subsection (1), the Bank shall have due

regard to the conditions in which, and the objects for which,

the institution has been established, its statutory

responsibilities, if any, and the effect the business of such

financial institution is likely to have on trends in the money

and capital markets.”

6.17 One of the most important provisions contained in Chapter

IIIB is Section 45Q. It reads as follows:

“45Q. Chapter IIIB to override other Laws.—The

provisions of this Chapter shall have effect notwithstanding

anything inconsistent therewith contained in any other law

for the time being in force or any instrument having effect by

virtue of any such law.”

6.18 It is too long in the day to dispute the fact that the directions

issued by RBI are statutory in character and binding on all NBFCs.

It is so, in respect of the directions issued both under the RBI Act

and under the Banking Regulation Act.

6.19 Once it is found that Chapter IIIB of the RBI Act

provides a supervisory role for the RBI to oversee the

functioning of NBFCs, from the time of their birth (by way of

registration) till the time of their commercial death (by way of

winding up), all activities of NBFCs automatically come under

the scanner of RBI. As a consequence, the single aspect of

taking care of the interest of the borrowers which is sought to

be achieved by the State enactments gets subsumed in the

provisions of Chapter IIIB.

Regulations/Master Circulars/Directions issued by RBI from

time to time

6.20 Apart from the provisions of Chapter IIIB, the regulations,

directions and Master Circulars issued by RBI from time to time,

also bind the NBFCs. There is a long list of Regulations/directions or

Master Circulars issued by RBI from 1977 onwards, which shows

that even before the 1997 Amendment to the RBI Act, some kind of

control was exercised by RBI over NBFCs. After the 1997

amendment, every aspect of the business of NBFCs, including loans,

is covered by Master Circulars/ Directions issued by RBI. In other

words, the only field occupied by the State enactments stand

appropriated by the Master Circulars/Directions. For demonstrating

that even the subject of grant of loans is covered by these Master

Circulars/Directions, we present in the Table below, the relevant

circulars/directions.

Title of the

Circular/ directions

The provision

under which

it was issued

Subject matter in general

and provision dealing with

loans and rate of interest

Non-Banking Financial

(Deposit Accepting or Holding)

Companies Prudential Norms

(Reserve Bank) Directions

2007

Section 45JA General policy including loans

Clause 7: Need for Policy on Demand/

Call Loans

Board to frame policy with respect to

 Cut off date for repayment or call

 Rate of interest

 Reasons in writing for effecting

Moratorium and sanctioning

interest free loans

Revisions on the Guidelines of

Securitisation Transactions

incorporated in the Reserve

Bank of India (Securitisation

of Standard Assets)

Directions, 2021

Sections 21 and 35A

of the Banking

Regulation Act,

1949; Chapter IIIB

of the Reserve Bank

of India Act, 1934

Securitisation of Standard Assets

Clause 1.2: Minimum Holding Period

 Loans to be securitised only after

minimum holding period

Clause 1.3: Minimum Retention

Requirement (MRR)

 NBFC to have continued stake in

performance of securitised asset

to ensure proper due diligence of

sanctioned loans

Master Circular- Fair Practices

Code, 2014

General Fair Practices Guidelines

including in loan appraisal and

disbursement

Clause 2A(ii): Loan Appraisal and

Terms and Conditions:

 Sanction letter to contain loan

amount and annualised Rate of

Interest in vernacular language.

 NBFCs shall mention the penal

interest so charged on late

repayment in bold in loan

agreement.

Clause 2A(iii): Disbursement of loans

including changes in terms and

conditions

 NBFC to give notice of any

change in terms of a loan

including disbursement schedule,

rate of interest etc in vernacular.

 NBFCs should effect change in

rate of interest prospectively

only.

Clause 2A(viii): Regulation of

excessive interest charged by NBFCs

 Board of each NBFC to adopt an

interest rate model taking into

account cost of funds, margin,

risk premium etc.

Rate of interest and the approach for

gradations of risk and rationale for

charging different rates of interest for

different categories of borrowers shall be

disclosed to the borrower and

communicated explicitly in the

sanction letter.

Non-Banking Financial

Company - Non-Systemically

Important Non-Deposit taking

Company and Deposit taking

Company (Reserve Bank)

Directions, 2016

Sections 45JA, 45L

and 45M of the RBI

Act

Chapter IV: Prudential Regulations

Clause 11: Need for policy on

demand/call loans :

 Board of Directors shall frame

policy for applicable NBFCs

which stipulate:

1. Cut-off date for repayment of

And

Non-Banking Financial

Company-Systemically

Important Non-Deposit taking

Company and Deposit taking

Company (Reserve Bank)

Directions, 2016

demand or call loan shall be

demanded with reasons in

writing if the cut-off date extends

beyond a period of 1 year from

date of sanction.

2. Rate of interest which shall be

payable on such loans. Such

interest shall be payable either at

monthly or quarterly rests.

Reasons in writing if moratorium

is granted or no interest is

stipulated.

Chapter V: Fair Practices Code for

applicable NBFC

Clause 28: Applications for loans &

their processing

 Communications to borrower to

be in vernacular

language/language understood by

them.

 Loan application forms to

include necessary information

which affects interest of the

borrower & to indicate

documents required to be

submitted.

 To devise a system of giving

acknowledgement for receipt of

all loan applications with time

frame within which applications

will be disposed of.

Clause 29: Loan Appraisal &

Terms/Conditions

 Communication regarding

amount of loan sanctioned along

with T&C including annualised

rate of interest & method of

application etc. in vernacular

language to the borrower.

Interest rate will have to be

clearly specified.

 Not furnishing a copy of loan

agreement is unfair practice.

Clause 36: Regulation of excessive

interest charged by applicable NBFC

 Board of NBFCs shall adopt

interest rate model accounting

for relevant factors: cost of

funds, margin & risk premium &

determine rate of interest to be

charged for loans & advances

etc.

 Explicit reasons to be given for

different rates of interest to

different categories of borrowers.

Clause 37: Complaints about

excessive interest charged by

Applicable NBFCs

Board of NBFCs shall lay out appropriate

internal principles & procedures in

determining interest rates & processing

and other charges

Non-Banking Financial

Company-Housing Finance

Company Directions 2021

Section 45L, Section

45MA of RBI Act

Regulation of excessive interest on

loans (Clause 80 and 81)

i) Rate of interest on loans to be made

available on company website as an

annualised rate.

ii) Board to adopt interest rate model

taking account of cost of funds, margin,

risk premium etc

iii) Company to place internal

mechanism to monitor fixing rate of

interest. The chapter pertaining to ‘Fair

Practices’ shall be applicable to interest

on loans.

RBI (Regulatory Framework

for Microfinance Loans)

Directions 2022

Section 21, Section

35A and Section 56

of the Banking

Regulation Act,

1949; Chapter IIIB

of the Reserve Bank

of India Act, 1934

Pricing of loans (Clause 6):

i) policy containing well-documented

interest rate model including factors

such as risk premium, margin, a ceiling

applicable to microfinance loans etc

ii) Rate of interest not to be usurious.

This shall be subject to scrutiny by

RBI

iii) change in rate of interest to be

informed to borrower well in advance

Ombudsman Scheme for

NBFC- 2018

Section 45L Rule 8 empowers any person to file a

complaint with the Ombudsman for the

grounds mentioned in the rule.

The procedure for filing a complaint is

given in Rule 9.

Rule 11 provides for settlement of the

complaint by agreement between the

parties.

Rule 12 provides for the alternative

where if the complaint is not settled by

agreement, the Ombudsman can pass an

award.

Rule 14(4) also mandates that the NBFC

must implement the award and send a

report of the same to RBI within 15 days

of the award becoming final

Since the Regulations, Master Circulars and Directions issued by

RBI are binding on NBFCs, it is clear from the above that all aspects

of NBFCs are regulated by RBI and nothing is left untouched.

However, there are certain categories of NBFCs, which may be

exempt, by RBI itself, in exercise of the power conferred by section

45NC of the Act, from the application of the provisions of RBI Act.

Let us also take note of them now.

NBFCs Exempt from RBI Act

6.21 Section 45NC of the RBI Act confers power upon the RBI to

declare by notification in the Official Gazette, that any or all of the

provisions of Chapter IIIB shall not apply to a NBFC or any class of

NBFCs, either generally or for a specified period, subject to such

restrictions, limitations and conditions. In exercise of the power so

conferred, RBI has been issuing Master Directions from time to

time. A Master Direction issued on 25.08.2016, updated as on April

01, 2022 lists various categories of NBFCs exempt from the

application of certain specified provisions of Chapter IIIB. This is

for the reason that some of those exempted companies are

regulated by other regulatory bodies. For instance, Housing Finance

Institutions are regulated by the National Housing Bank; Merchant

Banking companies, Venture Capital Fund Companies and the like

are regulated by SEBI; Nidhi companies and mutual benefit

companies are regulated by the Ministry of Corporate affairs; Chit

Fund companies are regulated by State Governments; and

Insurance Companies are regulated by IRDA. We are not concerned

in this case with the exempted companies, as the dispute on hand

is confined only to NBFCs registered under the RBI Act.

Is Chapter IIIB a complete code?

7. To find out whether NBFCs registered under Chapter IIIB of

the RBI Act and regulated by RBI could still be controlled by the

State enactments, because of the definition of the expression

“money lender”, we may first have to see whether Chapter IIIB of

the RBI Act is a complete code or not. In Integrated Finance

Company Limited vs. Reserve Bank of India and Others3

, this

Court held in para 47 of the Report that “Chapter IIIB of the RBI Act

is a complete code in itself”.

7.1 We have seen that no NBFC can commence or carry on

business without obtaining the certificate of registration under the

Act. We have also seen that their continuation in business would

depend upon compliance with certain prescriptions found in the

RBI Act as well as the circulars/directions issued by RBI. The RBI

has the power to supersede the Board of Directors of a NBFC and

has power even to wind up a NBFC. Thus the supervision and

regulation of NBFCs, by the RBI, is from the time of birth till the

time of death. If a statutory enactment which provides for such a

type of control and supervision is not a complete code in itself, we

do not know what else could be a complete code.

7.2 It was argued by Mr. Jaideep Gupta, learned senior counsel

appearing for the State of Kerala that the Reserve Bank of India

3 (2015) 13 SCC 772

does not control the rate of interest charged by NBFCs on the loans

advanced by them and that, therefore, a State enactment which

seeks to control this aspect, namely, the rate of interest cannot be

said to be repugnant. According to the learned senior counsel, a

statutory enactment which does not deal with such an important

issue as the rate of interest chargeable on the loans, cannot be said

to be a complete code in itself. Reliance was placed by the learned

senior counsel in this regard on a Constitution Bench decision of

the Supreme Court in Deep Chand vs. State of U.P4

7.3 But we do not agree. NBFCs which play a very vital role in

contributing to the financial health of the country and whose

operations are controlled by RBI with the avowed object of operating

the currency and credit system of the country to its advantage, have

as their life line, the income received by way of interest on the loans

advanced. Therefore, to say that RBI has no say in such a matter of

vital interest, will strike at the very root of the statutory control

vested in RBI.

4 AIR 1959 SC 648

7.4 It may be true that many times RBI may not be controlling the

rate of interest charged by NBFCs on the loans advanced by them.

It does not mean that they have no power to step in. The power to

determine policy and issue directions, available under Section 45

JA can always be invoked by RBI.

7.5 However, it was contended by Mr. Jaideep Gupta, learned

senior counsel for the State of Kerala that the power of the RBI

under Section 45JA to determine the policy and give directions, are

circumscribed by the words “relating to income recognition,

accounting standards, making of proper provision for bad and

doubtful debts, capital adequacy based on risk weights for assets

and credit conversion factors for off balancesheet items and also

relating to deployment of funds”.

7.6 But we do not think that the words “relating to” appearing in

Section 45JA(1) can be taken to restrict the power of RBI to give

directions, only in relation to the matters mentioned after the words

“relating to”. The items mentioned after the words “relating to” can

only be taken to be illustrative and not exhaustive. This is for the

reason that the power conferred by Section 45JA is both for

determining the policy and for issuing directions.

7.7 Moreover, Subsection (1) of Section 45JA deals only with the

powers in general. This is made clear by the words “without

prejudice to the generality of the powers vested under subSection

(1)”, appearing in subSection (2) of Section 45JA.

7.8 In any case, Section 45L(1)(b) confers power upon the RBI to

give directions to NBFCs “relating to the conduct of business by

them”. Therefore, to say that RBI has no power in respect of such

an important aspect, may not be correct. The fact that RBI generally

leaves it to the market forces to determine the rate of interest,

without any direct intervention, is not something that could be

taken advantage of by the State of Kerala to step in and prescribe

the maximum rate of interest chargeable by NBFCs on the loans

advanced by them.

7.9 In Deep Chand (supra), the Constitution Bench of this Court

reiterated three important tests of inconsistency or repugnancy,

namely, (i) whether there is direct conflict between the two

provisions; (ii) whether Parliament intended to lay down an

exhaustive Code in respect of the subject matter replacing the Act of

the State legislature; and (iii) whether the law made by Parliament

and the law made by State legislature occupy the same field.

Therefore, more than supporting the case of the State, Deep Chand

(supra) actually supports the case of the NBFCs, as we have found

that Chapter IIIB is a complete code in itself.

Doctrine of Eclipse, conflict and repugnancy

8. As indicated by the Constitution Bench in Deep Chand

(supra), a law may be valid when made, but a shadow may be

cast on it by supervening constitutional inconsistency or

supervening existing statutory inconsistency. Assuming that

the Kerala Act was valid in its application to NBFCs when it was

made, on the ground that the business of money lending is

traceable to Entry 30 of List II, it has to give way for the

parliamentary enactment. The moment the Parliament stepped

in to codify the law relating to registration and regulation of

NBFCs, by inserting certain provisions in Chapter IIIB of the

RBI Act, the same would cast a shadow on the applicability

(even assuming it is applicable) of the provisions of the Kerala

Act to NBFCs registered under the RBI Act and regulated by

RBI.

8.1 In Innoventive Industries Limited vs. ICICI Bank and Anr.

this Court was concerned with a professed conflict between the

Insolvency and Bankruptcy Code, 2016 and the Maharashtra Relief

Undertakings (Special Provisions) Act, 1958. After taking note of

Section 107 of the Government of India Act, 1935 and Article 254 of

the Constitution, this Court analysed the Constitutions of other

jurisdictions on the question of inconsistency of laws and

summarized the propositions of law as follows:

“51. The case law referred to above, therefore, yields the

following propositions :

51.1. Repugnancy under Article 254 arises only if both the

Parliamentary (or existing law) and the State law are

referable to List III in the Seventh Schedule to the

Constitution of India.

51.2. In order to determine whether the Parliamentary (or

existing law) is referable to the Concurrent List and whether

the State law is also referable to the Concurrent List, the

doctrine of pith and substance must be applied in order to

find out as to where in pith and substance the competing

statutes as a whole fall. It is only if both fall, as a whole,

5 (2018) 1 SCC 407

within the Concurrent List, that repugnancy can be applied

to determine as to whether one particular statute or part

thereof has to give way to the other.

51.3. The question is what is the subjectmatter of the

statutes in question and not as to which entry in List III the

competing statutes are traceable, as the entries in List III are

only fields of legislation; also, the language of Article 254

speaks of repugnancy not merely of a statute as a whole but

also “any provision” thereof.

51.4. Since there is a presumption in favour of the validity of

statutes generally, the onus of showing that a statute is

repugnant to another has to be on the party attacking its

validity. It must not be forgotten that that every effort should

be made to reconcile the competing statutes and construe

them both so as to avoid repugnancycare should be taken

to see whether the two do not really operate in different fields

qua different subjectmatters.

51.5. Repugnancy must exist in fact and not depend upon a

mere possibility.

51.6. Repugnancy may be direct in the sense that there is

inconsistency in the actual terms of the competing statutes

and there is, therefore, a direct conflict between two or more

provisions of the competing statutes. In this sense, the

inconsistency must be clear and direct and be of such a

nature as to bring the two Acts or parts thereof into direct

collision with each other, reaching a situation where it is

impossible to obey the one without disobeying the other.

This happens when two enactments produce different legal

results when applied to the same facts.

51.7. Though there may be no direct conflict, a State law

may be inoperative because the Parliamentary law is

intended to be a complete, exhaustive or exclusive code. In

such a case, the State law is inconsistent and repugnant,

even though obedience to both laws is possible, because so

long as the State law is referable to the same subjectmatter

as the Parliamentary law to any extent, it must give way.

One test of seeing whether the subjectmatter of the

Parliamentary law is encroached upon is to find out whether

the Parliamentary statute has adopted a plan or scheme

which will be hindered and/or obstructed by giving effect to

the State law. It can then be said that the State law trenches

upon the Parliamentary statute. Negatively put, where

Parliamentary legislation does not purport to be exhaustive

or unqualified, but itself permits or recognises other laws

restricting or qualifying the general provisions made in it,

there can be said to be no repugnancy.

51.8. A conflict may arise when Parliamentary law and State

law seek to exercise their powers over the same subjectmatter. This need not be in the form of a direct conflict,

where one says "do" and the other says "don't". Laws under

this head are repugnant even if the rule of conduct

prescribed by both laws is identical. The test that has been

applied in such cases is based on the principle on which the

rule of implied repeal rests, namely, that if the subjectmatter of the State legislation or part thereof is identical with

that of the Parliamentary legislation, so that they cannot

both stand together, then the State legislation will be said to

be repugnant to the Parliamentary legislation. However, if

the State legislation or part thereof deals not with the

matters which formed the subjectmatter of Parliamentary

legislation but with other and distinct matters though of a

cognate and allied nature, there is no repugnancy.

51.9. Repugnant legislation by the State is void only to the

extent of the repugnancy. In other words, only that portion of

the State’s statute which is found to be repugnant is to be

declared void.

51.10. The only exception to the above is when it is found

that a State legislation is repugnant to Parliamentary

legislation or an existing law if the case falls within Article

254(2), and Presidential assent is received for State

legislation, in which case State legislation prevails over

Parliamentary legislation or an existing law within that State.

Here again, the State law must give way to any subsequent

Parliamentary law which adds to, amends, varies or repeals

the law made by the Legislature of the State, by virtue of the

operation of Article 254(2) proviso.”

8.2 In Innoventive Industries Limited (supra), this Court

considered almost all earlier decisions starting from Zaverbhai

Amaidas vs. State of Bombay6

; Tika Ramji vs. State of U.P.

Deep Chand vs. State of U.P and so on and so forth. In sum and

substance, this Court held that repugnancy under Article 254

would arise only if both the Parliamentary law and the State

law are referable to ListIII.

8.3 Once it is clear that the RBI Act is traceable only to the Entries

in ListI and the State enactments are traceable only to an Entry in

ListII, the question of repugnancy under Article 254 does not arise,

as has been held in Innoventive Industries Limited. But in cases

of this nature, Article 246(1) would squarely apply. Article 246(1)

reads as follows:

“246. Subjectmatter of laws made by Parliament and by

the Legislatures of States:

(1) Notwithstanding anything in clauses (2) and (3),

Parliament has exclusive power to make laws with respect to

any of the matters enumerated in List I in the Seventh

Schedule (in this Constitution referred to as the “Union

List”).”

6 AIR 1954 SC 752

7 AIR 1956 SC 676

8.4 In UCO Bank and Another vs. Dipak Debbarma and

Others8

, a sale Notification issued under the Securitisation Act was

challenged on the ground that it constituted an infraction of Tripura

Land Revenue and Land Reforms Act, 1960. This Court found that

the Securitisation Act is traceable to Entry45 of ListI and the

Tripura Act is traceable to Entries 18 and 45 of the State List. After

referring to the Constitution Bench decision in State of West

Bengal and Others vs. Committee for Protection of Democratic

Rights, West Bengal and Others9

and other decisions, this Court

held that the Securitisation Act, being a Parliamentary legislation is

the dominant legislation. To come to the said conclusion, this Court

referred to the nonobstante clause in Article 246(1).

8.5 Many times, this Court has invoked the doctrine of eclipse, in

relation to preconstitutional laws with reference to Article 13(1) of

the Constitution. But in later years, this doctrine came to be used

even in different contexts. For instance in Kailash Sonkar vs.

Smt. Maya Devi10, this Court invoked the doctrine of eclipse to

8 (2017)2 SCC 585

9 (2010) 3 SCC 571

10 (1984) 2 SCC 91

hold that when a person is converted to Christianity or other

religion, the original caste remains under eclipse and that as soon

as during his life time he is reconverted to the original religion, the

eclipse disappears and the caste automatically revives.

Is the argument of Conflict, a mirage?

9. It was argued on behalf of the State that without pointing out

any area of conflict between the two enactments the NBFCs cannot

invoke either Article 246 or Article 254.

9.1 But the above argument has no substance. Once it is admitted

that the RBI Act is traceable to an entry in ListI, Article 246(1)

comes into play. In any case, there are also areas of conflict. The

Kerala Act, for instance, empowers the debtor under Section 8(1) to

deposit the money due to money lender, into a Civil Court. Section

8(2) empowers the Civil Court to pass orders recording full or part

satisfaction of the loan.

9.2 But the jurisdiction of the Civil Court stands ousted by

Section 34 of the Securitisation Act, 2002. By virtue of a notification

bearing No. S.O.856(E) dated 24th February, 2020, issued in

exercise of the powers conferred by Section 2(1)(m)(iv), the Central

Government have specified such NBFCs as defined in Section 45I(f)

of the RBI Act having assets worth rupees one hundred crore and

above to be entitled for enforcement of security interest in secured

debts of Rupees fifty lakhs and above. This Notification was issued

in supersession of the earlier notifications. Therefore, it is clear that

certain NBFCs are entitled to enforce security interest without the

intervention of the Civil Courts and the remedy of the borrower lies

only before the Debt Recovery Tribunal. This is one major area of

conflict, which can be readily pointed out.

9.3 We have taken the above example only as a sample, for testing

the validity of the argument of the learned counsel for the State and

we find that the question of conflict does not go to the rescue of the

State.

Overriding Effect

10. Section 45Q which we have extracted elsewhere confers

overriding effect upon Chapter IIIB, over other laws. Therefore, the

States of Gujarat and Kerala cannot contend that the laws made by

them are in addition to the provisions of Chapter IIIB.

10.1 Though it was contended by the learned counsel appearing

for the State of Gujarat that the Gujarat Act exempts NBFCs

registered under the RBI Act from seeking registration under the

Gujarat Act, we do not think that the same would go to the rescue

of State of Gujarat. Under Section 5(2) of the Gujarat Act, NBFCs

registered under the RBI Act are deemed to have been registered

under the Gujarat Act. Therefore, all other provisions of the Gujarat

Act are sought to be applied to NBFCs operating in the State of

Gujarat. The other provisions of the Gujarat Act include the (i)

power of search and seizure; (ii) requirement to maintain certain

books and registers and to furnish statements; and (iii) the

mandate not to dispose of any article taken from a debtor as a

pawn, pledge or security, before a period of two years from the date

stipulated for final payment, etc. The Gujarat Act also empowers

the Civil Court under Section 30 to reopen certain transactions and

to limit the interest recoverable. Section 32 of the Gujarat Act

empowers the borrower to deposit the money before a Civil Court

and the civil Court to assume jurisdiction of the adjudication of the

dispute.

10.2 Interestingly, Gujarat Act, 2011 tacitly recognizes the

regulation of NBFCs under the RBI Act. Yet the State got the assent

of only the Governor.

Conclusion

11 In view of the above, we are of the considered opinion that

the Kerala Act and the Gujarat Act will have no application to

NBFCs registered under the RBI Act and regulated by RBI.

Therefore, all the appeals filed by NBFCs against the judgment of

the Kerala High Court are allowed. Likewise the appeals filed by the

State of Gujarat against the judgment of the Gujarat high Court are

dismissed.

11.1 As a consequence, Transfer Petition (Crl.) No.359 of 2015,

shall also stand allowed and the First Information Report filed

against the officer of the NBFC for violation of the provisions of the

Kerala Act shall stand quashed.

11.2 An application for impleadment has been filed by one

Mr. Davidson Dharmaraj in Civil Appeal No.5238 of 2012, claiming

that he has lodged a criminal complaint against the appellant and

its officers in the Civil Appeal, namely M/s. Muthoot Finance

Private Limited, for alleged offences under the Indian Penal Code,

but relying upon the provisions of the Tamil Nadu Pawn Brokers

Act and the rules framed there under and that any decision

rendered in the appeals arising out of the decisions of the Kerala

and Gujarat High Courts may have an impact on his criminal

complaint. Though we have not examined the provisions of the

Tamil Nadu Pawn Brokers Act and the Tamil Nadu Money Lenders

Act, the principles of law laid down herein, would apply equally to

these State enactments also. Therefore, the application for

impleadment namely I.A. No.2 of 2015 is dismissed.

11.3 There will be no order as to costs.

………………………………….J.

(Hemant Gupta)

………………………………….J.

(V. Ramasubramanian)

New Delhi

May 10, 2022

whether the parties had agreed that the subject matter of the suit or a part thereof should be referred to arbitration under Section 21 of the Arbitration Act, 1940.1

Civil Appeal No. 1973 of 2022 Page 1 of 33

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1973 OF 2022

M.P. RAJYA TILHAN UTPADAK SAHAKARI

SANGH MARYADIT, PACHAMA,

DISTRICT SEHORE AND OTHERS ..... APPELLANTS

VERSUS

M/S. MODI TRANSPORT SERVICE ..... RESPONDENT

J U D G M E N T

SANJIV KHANNA, J.

The legal issue arising in the present appeal is whether the

parties had agreed that the subject matter of the suit or a part

thereof should be referred to arbitration under Section 21 of the

Arbitration Act, 1940.1

2. On 03rd September 1993, the respondent before us - M/s. Modi

Transport Service,

2 a partnership firm, had filed a civil suit in the

Court of the District Judge, Sehore Camp, Astha, Madhya Pradesh,

1 We are examining the provisions of the Arbitration Act, 1940 and consequently, the observations and

the findings recorded should not be without proper appreciation of the principles applied to the

proceedings under the Arbitration and Conciliation Act, 1996.

‘The plaintiff’, for short.

Civil Appeal No. 1973 of 2022 Page 2 of 33

for the settlement of accounts of transportation of coal undertaken

by them according to the agreement dated 01

st October 1990 and

the supplementary agreement dated 13th December 1991, with

M.P. Rajya Tilhan Utpadak Sahkari Sangh Maryadit, Pachama,

District Sehore, Madhya Pradesh (the first defendant). The General

Manager and Managing Director of the said Sahkari Sangh were

impleaded as second and third defendants.

3 The plaintiff had also

prayed for a grant of the amount due and payable by the defendant

and the amount spent by the plaintiff on the security of the

defendant's goods and all other amounts (sic) with interest @ 2%.

3. The plaint, in brief, states that the plaintiff had transported coal on

the delivery orders issued by the defendant from the coal mines to

the defendant's plant. The plaintiff had no connection with the

quality or any deficiency in the quality of the coal. The plaintiff, as

per directions, had loaded the coal from the coal mines of Western

India Coalfields Limited. The plaintiff’s sole responsibility was to

deliver the coal on time at the defendant’s plant. By communication

dated 05

th June 1992, the defendant had informed that the plaintiff

would be paid transportation charges at Rs.1.42p. per tonne per

kilometre till the finalisation of the new agreement. The order would

3 Collectively three defendants are referred to as ‘the defendant’, for short.

Interest period was not specified.

Civil Appeal No. 1973 of 2022 Page 3 of 33

remain in force for at least six months. The plaintiff, as required,

had furnished a bank guarantee of Rs.1,00,000/- (rupees one lakh

only) for six months. Thereafter, the defendant had refused to pay

transportation charges @ Rs.1.42p. per tonne per kilometre.

Further, the defendant had made deductions from the bills raised

on the basis of the actual tonnage of coal delivered, though the

plaintiff, as per the agreement, was entitled to a 1% variation or

exemption on the quantum of coal loaded at the coal mine.

Accordingly, transport charges were payable per ton per kilometre

as loaded at the collieries and not on the quantity actually delivered

as long as the shortfall was within 1%. The defendant had also

made false and wrong deductions on account of the high moisture

content in the coal. Interest was charged and deducted from the

bills of the plaintiff by the defendant. Subsequently, the defendant

had issued a telegraph asking the plaintiff not to transport coal. The

plaintiff had to arrange for a plot to store the coal for which he had

to pay a rent of Rs.10,000/- (rupees ten thousand only) per month

and incur security expenses of Rs.5,000/- (rupees five thousand

only) per month for up to five months.

4. The defendant contested the suit by filing a detailed written

statement. As per the defendant, it was an essential duty of the

plaintiff to lift the coal offered only on being satisfied that the coal

Civil Appeal No. 1973 of 2022 Page 4 of 33

was of good quality. The plaintiff had lifted good quality coal from

the collieries against the release orders of the defendant, but low

quality of coal was delivered to the defendant. The defendant was

cheated. The representatives of the plaintiff were informed about

the low quality of coal on account of excessive moisture, and stone

and dust being mixed with the coal. The truck drivers had showered

water on the coal to intentionally increase the weight of the coal

before delivery. Letter dated 05

th June 1992 in this regard was

issued by the defendant to the plaintiff. The plaintiff was to be paid

transportation charges for the coal actually accepted at the plant of

the defendant and not for the coal which was not delivered. As per

clause 11 of the agreement, shortage up to 1% per truck was the

maximum limit, whereas the plaintiff had claimed that 1% shortage

should be allowed even when there was no difference between the

dispatched and delivered weight. The price of coal was deducted

and recovered from the plaintiff when the shortage was in excess

and beyond the 1% allowable limit. There were delays in the

delivery of coal, sometimes extending to more than a month from

the dispatch date. Accordingly, the defendant had made

deductions on account of wrong and fraudulent acts due to which

the defendant had suffered losses. The plaintiff was also liable to

pay interest as the defendant had suffered due to blockage of

Civil Appeal No. 1973 of 2022 Page 5 of 33

funds. The defendant was not liable to pay any demurrage or rent

charges for the plot and, in fact, such charges were never paid. The

plaintiff had not delivered and kept huge quantity of coal for six to

seven months after the coal was lifted from the coal mines. Other

defences raised related to incomplete documentation and excess

freight charges by the wrong declaration as to the place from where

the coal was lifted. The letter dated 05

th June 1992 enhancing the

rate to Rs.1.42p. per tonne per kilometre was withdrawn/cancelled

retrospectively vide the letter dated 30th September 1992. The letter

dated 05

th June 1992 was issued on wrong facts based on the rate

quoted by a sister concern of the plaintiff in a tender floated in June

1992. Subsequently, the sister concern had voluntarily reduced the

rate to Rs.1.32p. per tonne per kilometre. In fact, the plaintiff and

their sister concern had quoted three different rates in a short period

of time to misguide and confuse the General Manager (Plant) of the

defendant who had issued the letter dated 05

th June 1992. The

plaintiff did not raise any objection to the letter dated 30th

September 1992 and had continued to transport and deliver coal

post the issue of the letter. The plaintiff had accepted the

cancellation of the letter dated 05

th June 1992. Furnishing of the

bank guarantee of Rs.1,00,000/- (rupees one lakh only) for six

months was not on account of an increase in rates but on account

Civil Appeal No. 1973 of 2022 Page 6 of 33

of the fact that the contract for transportation of coal by the plaintiff

has been extended up to December 1992.

5. As stated above, the plaintiff had not quantified the amount payable

therein and had sued for settlement of accounts regarding the

quality of coal transported. They had also prayed for the interest @

2% which, it appears, was the amount claimed as payable per

month. For valuation, the plaint had fixed the value of the suit at

Rs.1,00,000/- (rupees one lakh only) and a court fee of Rs.8,180/-

(rupees eight thousand one hundred eighty only) was paid with the

statement that excess court fee could be deposited after the

amount was quantified. However, a number of contestations inter

se parties were raised like the rate and quantification of the

transport charges, lapses and alleged failure by the plaintiff on

different accounts, the deductions made by the defendant and the

plaintiff’s liability to pay interest on excess payments made.

6. During the pendency of the said suit, the plaintiff had filed an

application before the First Additional District Judge, Sehore, which

reads:

“COURT: FIRST ADDITIONAL DISTRICT JUDGE,

SEHORE (M.P.)

CIVIL SUIT NO. 16B/93

M/s Modi Transport Service …..Plaintiff

Civil Appeal No. 1973 of 2022 Page 7 of 33

Versus

M.P. Rajya Tilhan Sangh etc. ……Defendant

Application for appointment of Arbitrator/Commissioner

1. Present Suit has been filed by the plaintiff against the

Defendants for settlement of accounts. In view of the

pleadings made by the Plaintiff, documents produced

on record and pleadings and documents of Defendant,

it is prima facie clear that there is a dispute between

both the parties is in respect of accounts. For the

purpose of conducting enquiry regarding accounts after

giving opportunity of hearing to both the parties, it is

necessary in the interest that after appointing a

Competent Chartered Accountant as Panch/

Commissioner in the present case he may be directed

to submit report after conducting audit of Accounts.

Since, the transaction took place between both the

parties are much higher, therefore, it is necessary to

handover the aforesaid work to a Chartered

Accountant.

Therefore, it is prayed that by allowing the present

Application, and after appointing Sh. Sushil Kumar

Mantri, Chartered Accountant, Sehore as Panch/

Commissioner as proposed by the plaintiff, kindly direct

him to Submit Report before the Hon’ble Court after

conducting Audit of the Accounts.

Sehore, dated 23.12.1994

Sd/- illegible

Plaintiff

Through Counsel”

The application was signed and moved by the plaintiff. It was

not signed and moved by the defendant.

7. On 23rd December 1994, the date on which the application was filed

and first listed, the First Additional District Judge, Sehore, passed

the following order:

Civil Appeal No. 1973 of 2022 Page 8 of 33

“COURT OF THE FIRST ADDITIONAL DISTRICT

JUDGE, SEHORE (M.P.)

Civil Suit No. 16B/93

Plaintiff along with Shri Badnairkar and Shri Amit

Agrawal, Advocate

Opposite Parties along with Shri S.K. Verma,

Advocate

This case is fixed for evidence today, but an application

has been submitted on behalf of the plaintiff to the effect

that in this case accounts have to be settled between

the parties and this work can be done only by a welleducated chartered accountant. In such a situation, if

this matter is handed over to a chartered accountant for

decision, then both the parties will not have any

objection. A copy of this application was given to Mr.

Verma. He has no objection to being appointed as

Panch in this case. In the application itself, it has been

proposed to appoint Shri Sushil Kumar Mantri,

Chartered Accountant, Sehore as Panch of the case, on

which no party has any objection. Hence the application

is accepted. The fee of the arbitrator will be payable

according to the fee prescribed in the schedule of the

Arbitration Council of India immediately, if the Arbitrator

demands fee, both the parties should pay half the fee to

the arbitrator before settlement of the matter. The final

liability of the fee will depend on the settlement of the

fees of the case. A notice to this effect on behalf of the

Sessions Court for appointment of the arbitrator. The

arbitrator should present his decision within the

stipulated period by giving notice to the parties

concerned and this matter should be placed before me

at the appointed time after being presented in the

Arbitration Court.

Dated: 23.12.1994”

8. Pursuant to the said order, the court sent the following letter dated

23rd January 1991 to S.K. Mantri, Chartered Accountant, Sehore:

Civil Appeal No. 1973 of 2022 Page 9 of 33

“COURT OF FIRST ADDITIONAL SESSIONS

JUDGE, SEHORE (M.P.)

Sr. No 11/ Sehore Dated – 23.01.1995

To,

Sh. S.K. Mantri

Chartered Accountant

Sehore.

In Suit No. 11/93 of this Court titled Modi Transport Vs.

Tilhan Sangh, you have as appointed as Panch. You by

conducting audit of all the disputed records (Accounts)

of both the parties, kindly send your Report by

22.04.1995.

On receiving your Remuneration Report, payment will

be made to you in the Court.

Sd/-

(Satish Chandra Dubey)

First Additional District Judge, Sehore

(M.P.)”

9. On 28th March 1995, S.K. Mantri appeared before the court and

applied for an extension of the date to submit the report, which time

was extended. Another order dated 22nd April 1995 states that the

panch decision was not submitted and that the panch must present

the award within the stipulated period by giving notice to the parties

concerned. Thereafter, the court passed a number of orders

recording the presence of the parties and that they sought time to

arrange the vouchers and the records. Time was also given to verify

the papers, which were checked in the court in front of the parties'

representatives. Order dated 18th May 1995 records that photocopy

and laboratory analysis records had been placed on record. Order

Civil Appeal No. 1973 of 2022 Page 10 of 33

dated 19th May 1995 refers to the account summary submitted by

the plaintiff regarding the pending bills and amounts for the previous

years. Information in that regard was sought from the defendant.

Therefore, it is clear that the proceedings remained pending before

the court. The suit was not treated as disposed of and decided in

view of the order dated 23rd December 1994.

10. On 22nd June 1995, S.K. Mantri submitted his report before the

court stating that an amount of Rs.24,03,300/- (rupees twenty four

lakhs three thousand three hundred only) was due and payable by

the defendant to the plaintiff. This amount included interest of Rs.

9,43,007/- (rupees nine lakhs forty three thousand seven only)

computed @ 24% per annum on different amounts between 23rd

February 1993 to 31st May 1995. He held that the plaintiff is entitled

to get Rs.1.42p. per tonne per kilometre. He held that “in my opinion

the reduction of one per cent per truck should be followed (sicallowed) by a reduction in contract for excess reduction”. Claim of

the defendant for a deduction on account of moisture and low

quality coal was not justified in the absence of evidence. Lastly, the

plaintiff would be entitled to receive rent and security charges, but

because of lack of a clear provision and a specific prayer, the

amount could only be decided by the court. Significantly the second

Civil Appeal No. 1973 of 2022 Page 11 of 33

paragraph of the report as to the basis on which it was prepared

reads:

“That the report has been prepared on the basis of

records (accounts) which have been presented to me

by the plaintiff and the opposition till date 31.05.95,

which is presented before your goodself.”

11. Order dated 22nd June 1995 passed by the court mentions that the

arbitrator has presented his report and documents along with the

list. If the parties have any objections regarding the arbitral report,

then they should appear on the next date.

12. The defendants filed objections, inter alia, on different grounds

challenging the report, which objections were decided by the court

of Additional District Judge, Sehore, vide order dated 16th May

1996. He held that S.K. Mantri had been appointed as an arbitrator

as provided under Section 21 of the Arbitration Act. The defendant's

contention that S.K. Mantri was appointed as a commissioner under

Order XXVI Rule 9 of the Code of Civil Procedure, 19085 was

rejected. Further, the objections to the award filed on 01

November 1995 were beyond 30 days and barred by limitation.

Counsel for the defendant was present in the court when the

arbitrator submitted the award in the court on 22nd July 1995. The

allegation of misconduct on the ground that S.K. Mantri was a

‘the Code’, for short.

Civil Appeal No. 1973 of 2022 Page 12 of 33

Chartered Accountant of the defendant, who was actually involved

in the preparation of accounts, was overruled as this objection was

not raised when S.K. Mantri was appointed as an arbitrator. Order

dated 23rd December 1994 appointing S.K. Mantri as an arbitrator

had attained finality as it was not challenged by the defendant.

13. The first appeal preferred by the defendant before the High Court

has been dismissed vide the impugned judgment dated 19th

September 1996. The High Court has affirmed the trial court's view

that during the pendency of the suit, the matter was referred to

arbitration in terms of Section 21 of the Arbitration Act. S.K. Mantri,

Chartered Accountant, was appointed as an arbitrator with the

parties' consent. The fee was payable to S.K. Mantri as per the

prescribed arbitration schedule. The objection that S.K. Mantri was

the Chartered Accountant of the defendant, was rejected as it could

not be said that he had acted in an unfair manner. That apart, the

objections were filed beyond the prescribed period of 30 days.

14. Defendant, namely, M.P. Rajya Tilhan Utpadak Sahkari Sangh

Maryadit, Pachama, District Sehore, Madhya Pradesh and the

General Manager and Managing Director of the Sahkari Sangh

have accordingly filed this appeal before us.

15. Section 21 of the Act, reads as under:

Civil Appeal No. 1973 of 2022 Page 13 of 33

“21. Parties to suit may apply for order of reference:-

Where in any suit all the parties interested agree that

may matter in difference between them in the suit shall

be referred to arbitration, they may at any time before

judgment is pronounced apply in writing to the Court for

an order of reference.”

The first condition for invoking Section 21 is that the parties

to the suit must agree that any matter of difference between them

shall be referred to arbitration. All interested parties must agree and

apply to the court where the suit is pending to obtain an order of

reference to arbitration. The subject matter of the reference must

be any of the matters between the parties to the suit. Entire subject

matter of the suit may not be referred to arbitration. Parties may

agree to only refer a part or portion of the dispute to arbitration. The

expression ‘agree’ is significant and expressive as to when a court

can exercise jurisdiction under Section 21 of the Act. Word ‘agree’

means any arrangement or understanding or action in concert.6 The

Indian Contract Act,1872 states that an agreement may be oral or

in writing, albeit the command of Section 21 of the Act is that the

parties should apply to the court in writing for an order of reference.

In the context of Section 21, the court can refer a dispute/difference

subject matter of a suit when the parties mutually agree to

6 See Section 2 of the Contract Act which vide clause (a) defines proposal, clause (b) which defines

when proposal is accepted, clause (e) which states that every promise and every set of promises,

forming the consideration for each other, is an agreement and clause (h) which states that an

agreement enforceable by law is a contract Clause (h) also has two sub-clauses.

Civil Appeal No. 1973 of 2022 Page 14 of 33

arbitration. There must be a joining or meeting of minds between

the parties to go for arbitration in respect of a subject matter in a

pending suit. Felthouse v. Bindley7 states that the parties agree

when they wilfully agree to perform certain acts or refrain from doing

something. The parties should be agreed about the subject matter

at the same time and in the same sense.

16. Interpreting Section 21 of the Act, a Full Bench of the Punjab and

Haryana High Court in Firm Khetu Ram Bashamber Dass v.

Kashmiri Lal8 has held:

“Thus, before any matter involved in a suit pending in a

Court can be referred to arbitration (a) there must be an

agreement amongst all the parties interested that any

matter in dispute between them in the suit shall be

referred to arbitration; (b) if they come to such an

agreement, then they have to make an application in

writing to the Court concerned; and (c) thereafter, the

Court has to pass an order referring the dispute to the

arbitrator agreed upon between the parties.

There can be no manner of doubt that if there is no

agreement between all the parties who are interested in

the case and if the application is not made on behalf of

them all, the reference made by the Court is bad and

the award based on such a reference is invalid in law.

This view has been consistently taken by all the High

Courts. In Negi Puran Singh v. Hira Singh and others,

while dealing with provisions of Civil Procedure Code,

1882, similar to sections 21 and 23 of the Arbitration

Act, Stanley, C.J. and Banerji, J., of the Allahabad High

Court held that if there was no application signed by all

the parties who were interested in the settlement of the

suit, the reference and the award given, thereafter,

would be invalid. The same view was taken

(1862) 142 ER 1037

8 1959 SCC OnLine Punj 102

Civil Appeal No. 1973 of 2022 Page 15 of 33

in Haswa v. Mahbub and another, by another Division

Bench of the same Court. In Gopal Das v. Baij Nath,

Sulaiman, J., (as he then was), referred to a number of

decisions of Allahabad and Calcutta High Courts and

observed as follows:—

“*** it is necessary that all persons who are

interested in the matter which is in difference

between the parties and which is going to be

referred to arbitration, should join. Although it is

not absolutely necessary that they should all sign

the application made to the Court, it is necessary

that they should agree to the reference.”

See also Tej Singh and another v. Ghase Ram and

others , In Ram Harakh Singh v. Mumtaz Hasain, the

question of acquiescence and ratification was also

considered.

Following Gopal Das v. Baij Nath and Subba

Rao v. Appadurai , Ghulam Hasan, J., held that the

foundation of the jurisdiction of the Court is the consent

of the parties and the subsequent ratification does not

validate the reference which was void ab initio. Calcutta

and Madras High Courts have also taken a similar view.

The question was considered by a Full Bench of the

Calcutta High Court in Laduram v. Nandlal, Mookerjee,

J., at page 114 of the report observed as follows:—

“The foundation of jurisdiction here is the

agreement amongst all the parties interested that

the matters in difference between them shall be

referred to arbitration. If all the parties interested

do not apply and yet an order of reference is

made, the order is illegal because made without

jurisdiction. If an award follows on the basis of that

reference, it is equally illegal, because it is

founded upon a reference made without

jurisdiction.”

See also Seth Dooly Chand v. Munuji and others

and Khan Mohmed v. Chella Ram and another and

Subha Rao v. Appadurai.

In Subha Rao v. Appadurai, Devadoss, J., while

considering the provisions of para 1 of Schedule II, Civil

Procedure Code,—which in substance is the same as

Civil Appeal No. 1973 of 2022 Page 16 of 33

section 21 of the Arbitration Act—observed as

follows:—

“What gives the Court jurisdiction to refer the

matter to arbitration is consent of all the parties.

Consent subsequently given cannot give

jurisdiction to the Court which it did not possess at

the time when it referred the matter to arbitration.”

17. In our opinion, the aforesaid ratio expresses the correct position in

law. Arbitration is an alternative to the court adjudication process

by a private forum chosen by the parties. Normally reference can

be made or even directed to the arbitrator only if a preexisting

arbitration agreement subsists between the parties. In the absence

of a preexisting arbitration agreement, the court has no power,

authority or jurisdiction to refer unwilling parties to arbitration.

Therefore, the word ‘agree’ in Section 21 of the Act refers to

consensus ad idem between the parties who take a considered

decision to forego their right of adjudication before a court where

the suit is pending, and mutually agree to have the subject matter

of the suit or part thereof adjudicated and decided by an arbitrator.

18. In the present case, the application dated 23rd December 1994 was

moved by the plaintiff and it was not signed by the defendant. As

per the heading, the application was for the appointment of a

commissioner/arbitrator to conduct an ‘enquiry’ in respect of the

accounts by a competent Chartered Accountant who shall act as a

Civil Appeal No. 1973 of 2022 Page 17 of 33

panch/Commissioner and submit a report after conducting an audit

of the accounts. It was stated that the transactions between the

parties are fairly large in number and, therefore, it is necessary to

handover the aforesaid task to a Chartered Accountant. The

application also states that for the enquiry regarding accounts an

opportunity of hearing should be given to both the parties. Name of

S.K. Mantri, Chartered Accountant, to act as panch/commissioner

was proposed. The prayer in the application was that the panch/

commissioner would submit the report to the court after conducting

an audit of the accounts. The application cannot be read as an

application moved on a prior agreement or consensus for reference

to arbitration.

19. In view of the aforesaid discussion, we cannot read the application

dated 23rd December 1994 as an application by the parties under

Section 21 of the Arbitration Act. First, it is not an application for

reference of disputes to an arbitrator for adjudication but a request

for the appointment of an expert, that is, a Chartered Accountant,

who would examine the accounts and papers and submit the report

to facilitate the court. The role assigned to S.K. Mantri is also clear

from the letter of appointment dated 23rd January 1995 which states

that S.K. Mantri has been appointed as a panch and would be

conducting an audit of all disputed accounts of both sides, and that

Civil Appeal No. 1973 of 2022 Page 18 of 33

he should send a report to the court.9 The letter also mentions that

“on receiving your remuneration report, payment would be made to

you in the court”. Secondly, the court’s jurisdiction to finally decide

was not questioned or annihilated. In fact, the court always

remained in the picture, exercised parley as an adjudicator having

dominion over the subject matter of the suit.

20. However, the plaintiff has placed reliance on the order dated 23rd

December 1994 to submit that the defendant had agreed to

arbitration. It is, therefore, necessary for us examine the contents

of the order. The first portion of the order records that the plaintiff

has made an application for settlement of accounts and that the

accounts can be examined only by a well-educated Chartered

Accountant. A copy of the application had been handed over to the

counsel for the defendant who had no objection “to being appointed

as Panch in this case”. This statement is somewhat vague, but we

do not read the statement as an indication or affirmation that the

defendant had agreed to the appointment of an arbitrator as an

alternative and substitute to court adjudication. If it was so, this

should have been clearly stated to enable the parties to respond

and make statement. At best it was restricted to the appointment of

9 Distinction between an arbitrator and expert; and an arbitrator and a commissioner has been

examined and discussed below.

Civil Appeal No. 1973 of 2022 Page 19 of 33

an expert/commissioner who would examine the accounts and

submit his report.

21. The second portion of the order dated 23rd December 1994 states

that in the application name of Sushil Kumar, Chartered Account,

as panch has been proposed to which no party had any objection.

Thereafter, the order records the direction of the court that the fee

of the arbitrator ‘shall be as prescribed in the schedule of the

Arbitration Council of India and if the arbitrator demands a fee the

same should be equally shared by both the parties’. The last portion

does not incorporate and does not refer to any agreement or even

concession given by the defendant agreeing to arbitration as an

alternative to court adjudication and decision. The court had not

disposed of the suit by referring the subject matter or a part of the

subject matter of the suit to arbitration. In our opinion the said order

is for issuing a commission as the court had accepted an

application filed by the plaintiff for verification of the accounts. The

commissioner was to act as an expert or facilitator for the court and

submit a report to the court to help the court adjudicate and finally

decide the suit.

22. We would elaborate these aspects and affirm our reasoning with

reference to case law and statutory provisions.

Civil Appeal No. 1973 of 2022 Page 20 of 33

23. This Court in Kerala State Electricity Board and Another v.

Kurien E. Kalathil and Another,

10 had examined the question of

reference to arbitration in a case where there was no arbitration

agreement between the parties. The question that fell for

consideration was whether the High Court was right to refer the

parties to arbitration on oral consent given by the counsel without

the written consent of the party whom he represents. In this context,

reference was made to Section 89 of the Code and the decision of

this Court in Afcons Infrastructure Ltd. v. Cherian Varkey

Construction Co. (P) Ltd.,

11 which is to the following effect:

“33. Even if there was no pre-existing arbitration

agreement, the parties to the suit can agree for

arbitration when the choice of ADR processes is offered

to them by the court under Section 89 of the Code. Such

agreement can be by means of a joint memo or joint

application or a joint affidavit before the court, or by

record of the agreement by the court in the order-sheet

signed by the parties. Once there is such an agreement

in writing signed by parties, the matter can be referred

to arbitration under Section 89 of the Code; and on such

reference, the provisions of the AC Act will apply to the

arbitration, and as noticed in Salem Bar (I), the case will

go outside the stream of the court permanently and will

not come back to the court.”

24. Thereafter, Kerala State Electricity Board (supra), made a

reference to a similar view expressed by this Court in Shailesh

10 (2018) 4 SCC 793

11 (2010) 8 SCC 24

Civil Appeal No. 1973 of 2022 Page 21 of 33

Dhairyawan v. Mohan Balkrishna Lulla,

12 which stated that resort

to arbitration in a pending suit by the orders of the court would only

be when parties agree for settlement of the dispute through

arbitration. Thus, reference to arbitration is valid only when done by

means of agreement between the parties.

25. On the question whether a counsel can give consent for arbitration

on behalf of the parties, Kerala State Electricity Board (supra)

referred to the decision in Byram Pestonji Gariwala v. Union

Bank of India,

13 which has settled the law that a counsel should

not act on implied authority unless there is an exigency of

circumstances demanding immediate adjustment of the suit by

agreement or compromise and the signature of the party cannot be

obtained without delay. Reference was made to paragraph 37 in

Gariwala case (supra), which reads as under:

“37. We may, however, hasten to add that it will be

prudent for counsel not to act on implied authority

except when warranted by the exigency of

circumstances demanding immediate adjustment of suit

by agreement or compromise and the signature of the

party cannot be obtained without undue delay. In these

days of easier and quicker communication, such

contingency may seldom arise. A wise and careful

counsel will no doubt arm himself in advance with the

necessary authority expressed in writing to meet all

such contingencies in order that neither his authority nor

integrity is ever doubted. This essential precaution will

12 (2016) 3 SCC 619

13 (1992) 1 SCC 31

Civil Appeal No. 1973 of 2022 Page 22 of 33

safeguard the personal reputation of counsel as well as

uphold the prestige and dignity of the legal profession.”

26. The Kerala State Electricity Board (supra) decision rightly records

that referring the parties to arbitration has serious civil

consequences, substantial and procedural. Once an award is

passed, it can be only challenged on limited grounds. When there

was no arbitration agreement between the parties, without joint

application the High Court ought not to have referred the matter to

arbitration. This Court in Bihar State Mineral Development

Corpn. v. Encon Builders (I) (P) Ltd.14 emphasised that the

arbitration agreement must contain a broad consensus between the

parties that the disputes and differences should be referred to a

private tribunal. Further, such a tribunal must be an impartial one.

27. In ITC Ltd. v. George Joseph Fernadez and Another,

15 this Court

had interpreted Section 2016 of the Contract Act, which provides that

where both the parties to an agreement are under a mistake as to

a matter of fact essential and integral to the agreement, the

agreement is void. However, this does not apply if the mistake

relates to an erroneous opinion as to the valuation of the thing that

14 (2003) 7 SCC 418

15 (1989) 2 SCC 1

16 20. Agreement void where both parties are under mistake as to matter of fact.—Where both

the parties to an agreement are under a mistake as to a matter of fact essential to the agreement,

the agreement is void.

Explanation.—An erroneous opinion as to the value of the thing which forms the subject-matter of

the agreement, is not to be deemed a mistake as to a matter of fact.

Civil Appeal No. 1973 of 2022 Page 23 of 33

forms the subject matter of the agreement. A mistake as to the

quality of an article or attributes on the other hand is a debatable

question as it may not always lead to the conclusion that the

contract is void. Further, this provision relating to the voidness of

the contract does not apply to cases of a common mistake of fact,

as distinguished from a mutual mistake made or entertained by

each of the persons towards or with regard to each other. Where a

party is mistaken as to the other's intention, though neither realises

that the respective promises have been misunderstood, there is a

mutual mistake. The ascertainment of whether or not there was a

mutual mistake is to be ascertained by applying what reasonable

third parties would infer from their words or conduct. The mistake

or error must be such that it either appears on the face of the

contract that the matter as to which the mistake existed was an

essential and integral element of the subject matter of the contract

or was an inevitable inference from the nature of the contract that

all parties so regarded it. A contract is void at law only if some term

can be implied in both offer and acceptance, which prevents the

contract from coming into force. These principles are relevant when

the dispute arises as to the existence of a pre-existing arbitration

agreement. Albeit in the case of Section 21, the requirement is even

stricter – the “parties interested agree…in writing before the court”,

Civil Appeal No. 1973 of 2022 Page 24 of 33

which is an inflexible mandate which requires that the parties must

agree, or affirm an agreement before the court to refer the subject

matter as agreed to arbitration.

28. This Court in K.K. Modi v. K.N. Modi and Others,

17 after referring

to Mustill and Boyd in their book on Commercial Arbitration, pointed

out that there is an immense variety of tribunals differing

fundamentally as regards their composition, their functions and

sources from which their powers are derived. Tribunals, including

those which derive their jurisdiction from the consent of the parties,

apart from the arbitration tribunal, may be persons who are not

properly called tribunals, but by mutual consent entrusted with the

power to affect the legal rights of two parties inter se in a manner

creating legally enforceable rights to do so by a procedure of a

ministerial but not judicial in nature, such as persons appointed by

contract to value property or certify compliance of building works

with the specification. Other examples given are of conciliation

tribunals of local religious bodies or privately appointed persons to

act as mediators. Such consent terms lack some of the attributes

necessary for an arbitration agreement. The judgment enlists some

17 (1998) 3 SCC 573

Civil Appeal No. 1973 of 2022 Page 25 of 33

of the attributes which must be present in an agreement to be

considered as an arbitration agreement as:

“17... (1) The arbitration agreement must contemplate

that the decision of the tribunal will be binding on the

parties to the agreement,

(2) that the jurisdiction of the tribunal to decide the rights

of parties must derive either from the consent of the

parties or from an order of the court or from a statute,

the terms of which make it clear that the process is to be

an arbitration,

(3) the agreement must contemplate that substantive

rights of parties will be determined by the agreed

tribunal,

(4) that the tribunal will determine the rights of the parties

in an impartial and judicial manner with the tribunal

owing an equal obligation of fairness towards both sides,

(5) that the agreement of the parties to refer their

disputes to the decision of the tribunal must be intended

to be enforceable in law and lastly,

(6) the agreement must contemplate that the tribunal will

make a decision upon a dispute which is already

formulated at the time when a reference is made to the

tribunal.”

29. K.K. Modi (supra) refers to Russell on Arbitration,

18 which observes

that whether a chosen form of dispute resolution is expert

determination or arbitration is a matter of construction of a contract

that involves an objective enquiry into the intention of the parties.

Specific words like ‘arbitrator’, ‘arbitration proceedings’ or ‘an expert

and not an arbitrator’ can be used to describe how the dispute

resolver is to act. However, the words are persuasive, although not

always conclusive. The authors on the distinction between

18 21st Edn., at page 37, para 2-014

Civil Appeal No. 1973 of 2022 Page 26 of 33

arbitration and an expert’s opinion have elucidated that an arbitral

tribunal arrives at its decision based on the evidence and

submissions of the parties by applying the law and its principles,

whereas an expert decides on his own expert opinion, applying his

own expertise.

30. In Bharat Bhushan Bansal v. U.P. Small Industries Corporation

Ltd,

20 reference was made to S.K. Chawla’s Law of Arbitration and

Conciliation21 to highlight that an expert primarily acts on his

knowledge and experience supplemented if he thinks fit by: (i) his

own investigations; and/or (ii) material (which need not conform to

the rules of ‘evidence’) put before him by either party. On the other

hand, an arbitrator primarily acts on the material put before him by

the parties. Determination by an expert would involve less to

thorough investigation. Reference is also made to Hudson’s

Building and Engineering Contracts,

22 which distinguishes a certifier

and an arbitrator in a building contract observing that the certifier in

a construction contract will often perform an administrative rather

than a judicial function. Certifiers have been described as

19 Russel on Arbitration, 21st Edition

20 (1999) 2 SCC 166

21 Justice S.K. Chawla Law of Arbitration and Conciliation at Page 164.

22 See Eleventh Edition, Volume 1, in Paragraph 6.065

Civil Appeal No. 1973 of 2022 Page 27 of 33

preventers of disputes in contradistinction with arbitrators, whose

function can only arise once a dispute is in existence.

31. With regard to the significance and effect of the report submitted by

an expert, this Court in Dayal Singh and Others v. State of

Uttaranchal23 states that the purpose of an expert opinion is

primarily to assist the court in arriving at a final conclusion. Such

report is not binding upon the court. The court is expected to

analyse the report, read it in conjunction with the other evidence on

record and then form its final opinion as to whether such report is

worthy of reliance or not. An expert report, duly proved, has its

evidentiary value but such appreciation has to be within the

limitations prescribed and with careful examination by the court.

Simply put, an expert deposes and does not decide,

24 his duty is to

furnish the court with necessary scientific/technical criteria so as to

enable the judge to form his own independent judgment by the

application of these criteria to the facts proved in evidence.

32. There is also a distinction between the scope and functions of an

arbitral tribunal and a commissioner appointed under Order XXVI

23 (2012) 8 SCC 263

24 Murari Lal v. State of M.P. (1980) 1 SCC 704

25 Vide Lord President Cooper in Davis v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor

Cross in his Evidence.

Civil Appeal No. 1973 of 2022 Page 28 of 33

Rules 9 and 1126 of the Code. For submission to arbitration, there

must be an arbitration agreement or an agreement in terms of

Section 21 of the Act that the difference or dispute between the

parties for which they intend to be determined in a quasi-judicial

manner. Commissioners are appointed by the court. Appointment

may be with consent of the parties, or even when there is objection

to the appointment. Preexisting agreement or the requirement that

the parties agree before the court, as is mandatory in case of

arbitration, is not necessary when a court directs appointment of a

commissioner. In the case of a reference to a commissioner, all that

the parties expect from the commissioner is a valuation/

examination of the subject matter referred, which he would do

according to his skill, knowledge and experience, which may be

without taking any evidence or hearing argument.27 In light of the

aforesaid decisions, we would like to introduce the principle of a

26 9. Commissions to make local investigations.– In any suit in which the Court deems a local

investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of

ascertaining the market-value of any property, or the amount of any mesne profits or damages or

annual net profits, the Court may issue a commission to such person as it thinks fit directing him to

make such investigation and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such

commission shall be issued, the Court shall be bound by such rules.

xx xx xx

11. Commission to examine or adjust accounts.– In any suit in which an examination or adjustment

of the accounts is necessary, the Court may issue a commission to such person as it thinks fit directing

him to make such examination or adjustment.

27 Halsbury, Vol.1, Edn. 2 at Pg. 622

Civil Appeal No. 1973 of 2022 Page 29 of 33

‘facilitator’ which a court may appoint, be it a commissioner or an

expert, for a specific purpose and cause for ascertainment of a fact

which may be even disputed. In some cases, the commissioner

may even hear the parties and give his expert opinion based on the

material or evidence produced by the parties before the

commissioner, as in this case when the court appointed a

Chartered Account who as an expert was required to give his

opinion on the statement on accounts to facilitate and help the court

arrive at a fair and just decision. It was to save the court's time and

cut delay in the decision by the court.

33. Order XXVI Rule 9 of the Code gives wide powers to the court to

appoint a commissioner to make local investigations which may be

requisite or proper for elucidating any matter in dispute,

ascertaining the market value of any property, account of mesne

profit or damages or annual net profits. Under Order XXVI Rule 11,

the court has the power to issue a commission in a suit, in which

examination of adjustment of accounts is necessary, to a person as

it thinks fit directing him to make such examination or adjustment.

When a court issues such a commission to such a person, it can

direct the commissioner to make such an investigation, examination

and adjustment and submit a report thereon to the court. The

commissioner so appointed does not strictly perform a ‘judicial act

Civil Appeal No. 1973 of 2022 Page 30 of 33

which is binding’ but only a ‘ministerial act’. Nothing is left to the

commissioner’s discretion, and there is no occasion to use his

judgment or permitting the commissioner to adjudicate and decide

the issue involved; the commissioner’s report is only an opinion or

noting, as the case may be with the details and/or statement to the

court the actual state of affairs. Such a report does not

automatically form part of the court’s opinion, as the court has the

power to confirm, vary or set aside the report or in a given case

issue a new commission. Hence, there is neither abdication nor

delegation of the powers of functions of the court to decide the

issue. Sometimes, on examination of the commissioner, the report

forms part of the record and evidence.28 The parties can contest an

expert opinion/commissioner’s report, and the court, after hearing

objections, can determine whether or not it should rely upon such

an expert opinion/commissioner’s report. Even if the court relies

upon the same, it will merely aid and not bind the court. In strict

sense, the commissioners’ reports are ‘non-adjudicatory in nature’,

and the courts adjudicate upon the rights of the parties.

34. By Act 18 of 2018, Section14A29 has been inserted in the Specific

Relief Act, 1963. The provision states that without prejudice to the

28 A. Nagarajan v. A. Madhanakumar 1996 SCCOnLine Mad 17

29 14A. Power of court to engage experts.—(1) Without prejudice to the generality of the provisions

contained in the Code of Civil Procedure, 1908 (5 of 1908), in any suit under this Act, where the court

Civil Appeal No. 1973 of 2022 Page 31 of 33

provisions of the Code in any suit under the Act in question where

a court considers it necessary to get expert opinion to assess it on

a specific issue involved in the suit, it may engage one or more

experts and direct to report to it on such issue. The court may

secure the expert's attendance for providing evidence, including the

production of documents on the issue. The opinion or report of the

expert would form part of the record of the suit as is the case with

the commissioner’s report. With the court's permission, the parties

to the suit may examine the expert personally in the open court on

any of the matters referred to him or as to his opinion or report or

as to the manner in which he has made the inspection.

35. The matter referred to S.K. Mantri was limited to examination of the

accounts. The issues and questions of dispute in the suit were far

broader and wider. These included questions as to the agreed price

or the rate of transportation in view of the letter dated 05

th June

1992, which was withdrawn by letter dated 30th September 1992,

considers it necessary to get expert opinion to assist it on any specific issue involved in the suit, it may

engage one or more experts and direct to report to it on such issue and may secure attendance of the

expert for providing evidence, including production of documents on the issue.

(2) The court may require or direct any person to give relevant information to the expert or to produce,

or to provide access to, any relevant documents, goods or other property for his inspection.

(3) The opinion or report given by the expert shall form part of the record of the suit; and the court, or

with the permission of the court any of the parties to the suit, may examine the expert personally in

open court on any of the matters referred to him or mentioned in his opinion or report, or as to his

opinion or report, or as to the manner in which he has made the inspection.

(4) The expert shall be entitled to such fee, cost or expense as the court may fix, which shall be payable

by the parties in such proportion, and at such time, as the court may direct.]

Civil Appeal No. 1973 of 2022 Page 32 of 33

computation of the transportation costs payable to the plaintiff

under the contract in case the coal delivered was within or beyond

the 1% stipulation, whether or not the defendants were right in

making deductions on account of bad quality coal, higher moisture

content etc. whereby the weight of the coal had increased, delay in

delivery on the part of the plaintiff, whether the defendants are

entitled to charge interest while making recoveries, etc. It is

interesting to note that the S.K. Mantri himself did not decide

whether or not the plaintiff is entitled to rent of the plot or security

charges observing that this was an aspect for the court to decide.

However, he forgot that his ‘jurisdiction’ was limited to checking and

verifying accounts and not deciding any issue or questions beyond

the accounts on issues and questions referred to above.

36. In view of the aforesaid discussion, we allow the present appeal

and set aside the impugned order dated 19th September 2019 of

the High Court affirming the order dated 16th May 1996 passed by

the Additional District Judge, Sehore Camp Astha. It is held that the

report of the Chartered Accountant is not an award and is to be

treated as a report of a commissioner appointed by the Court under

Order XXVI Rule 11 of the Code. Objections of the defendant to the

said report will be considered in light of the aforesaid discussion

and our findings, and after hearing both the sides the trial will

Civil Appeal No. 1973 of 2022 Page 33 of 33

proceed as per law. We clarify that the observations made in this

judgment are for the disposal of the present appeal. The civil suit

will be decided on merits without being influenced by any findings

recorded by us that only relate to the limited aspect of the report

dated 22nd June 1995 of the commissioner.

37. All pending applications are disposed of. There would be no order

as to costs.

......................................J.

(SANJIV KHANNA)

......................................J.

(BELA M. TRIVEDI)

NEW DELHI;

MAY 11, 2022.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Thursday, May 12, 2022

whether the parties had agreed that the subject matter of the suit or a part thereof should be referred to arbitration under Section 21 of the Arbitration Act, 1940.1