Punjab National Bank v. Shambhu Nath Nandy — 1997 DIGILAW 203 (CAL)

JUDGMENT Shyamal Kumar Sen, J. 1. This is an application for recalling of the decree passed by me on 23.8.1991. It was recorded that the applicant flied a suit being Suit No.536 of 1985 claiming a decree for Rs. 1.05,165.16 paise (a sum of Rs. 74,793/- being the principal and a sum of Rs. 30,371/- being the interest). 2. On 14.3. 1986 an order was passed by me to the following effect:- "This is an application for appointment of Receiver on usual Bank's claim. According to the plaintiff bank, the plaintiff is entitled to claim a sum of Rs. 1,05,165.16 paise (a sum of Rs. 74,793/- being the principal amount and a sum of Rs. 30,371/- being the interest). Mr. P.K. Das, learned Counsel appearing for the defendant No.1 submits that it appears from thee Statement of Account being Annexure 'B' to the petition that the entire principal amount has been paid off. Learned Counsel appearing for the Bank cannot dispute the same. In that view of the matter, the claim of the plaintiff bank remains only the amount of interest being Rs. 30,000/-. Mr. Das's client is hereby directed to pay the said amount of Rs. 30,000/- by equal installment of Rs. 2,250/- per month beginning from 30.4.1986. The first of such installment is to be paid by 30.4.1986, and will go on paying subsequent installments on or before the last day of each and every succeeding month until the entire sum of Rs. 30,000/- is paid off to the Bank. The said amount will be paid to the Bank directly. In default of payment of the first installment or any two subsequent installments, the Receiver already appointed herein, will be entitled to take possession of the vehicle forthwith. This order is made without prejudice to the rights and contentions of the parties. The defendant No.1 states that the vehicle is in road worthy condition subject to usual wear and tear. Liberty to apply. Costs of this application to be added to the claim of the plaintiff-bank. Learned Advocate for the plaintiff is not disputing with regard to the Statement of Account being Annexure 'C' to the petition. The defendant No.1 will file its written statement by 18.4.1986. Cross order for discovery within a fortnight thereafter, Inspection forthwith thereafter and the suit will appear in the appropriate prospective list six (6) weeks hence. Learned Advocate for the plaintiff is not disputing with regard to the Statement of Account being Annexure 'C' to the petition. The defendant No.1 will file its written statement by 18.4.1986. Cross order for discovery within a fortnight thereafter, Inspection forthwith thereafter and the suit will appear in the appropriate prospective list six (6) weeks hence. Receiver and all parties to act on a signed copy of the minutes of this order on usual undertaking." 3. An application was made thereafter by the defendant No.1 for recording satisfaction of the claim of the plaintiff bank on the basis that the defendant No.1 has already paid the balance sum of Rs. 30,000/- being the interest amount payable in terms of the said order dated 14.3.1986 and for direction upon the plaintiff bank to issue no objection certificate. In respect of Motor Vehicle No. WMK 3764 In favour of the defendant No.1 for the purpose of recording the name of the defendant No.1 as owner of the said vehicle. Certain suggestions were made to the learned Advocate for the plaintiff-bank to accept payment on the basis of the submissions that the entire principal amount has already been paid and the learned advocate for the plaintiff bank, who appeared, did not really object to such suggestion. The suit was accordingly treated in the day's list and the following direction was passed:- "It is directed that the defendant No.1 will pay the sum of Rs. 12,000/- in four equal monthly installments beginning from September 1991. Such installment will be paid on the last day of each and every month. In default of payment of any of the monthly installment the plaintiff will be entitled to execute the decree and upon payment of the said amount of Rs. 12,000/- the decree will stand satisfied. Upon payment of the last installment the plaintiff bank will issue no objection certificate and comply with other formalities for cancellation of the hypothecation deed and the defendant will stand discharged. The vehicle in the suit will stand charged for payment of the decretal amount, in the meantime. Decree to be drawn up expeditiously." 4. It may be noted that after passing of the order dated 14.3.1986 by a letter dated 20.3.1986 the Manager of the plaintiff bank wrote to Mr. M.R. Singla, Advocate that the Counsel for the plaintiff-bank should not have agreed to the order dated 14.3.1986. Decree to be drawn up expeditiously." 4. It may be noted that after passing of the order dated 14.3.1986 by a letter dated 20.3.1986 the Manager of the plaintiff bank wrote to Mr. M.R. Singla, Advocate that the Counsel for the plaintiff-bank should not have agreed to the order dated 14.3.1986. Therefore, the Bank disputed as early as on 20.3.1986 the contention that only Rs. 30,000/- was due and payable. On 11.4.1986 another letter was sent by the Manager of the Bank to Mr. M.R. Singla, Advocate wherein also the Bank disputed the claim of the defendant No.1 that the sum of Rs. 74,793/- has been paid by the defendant No.11 and recorded why the Counsel did not dispute the claim of the defendant No.1. It appears that the said Mr. M.R. Singla, learned Advocate for the plaintiff-bank at the relevant time by a letter dated 21.4.1986 has stated that the interim order was passed without prejudice to the rights and contentions of the parties and cannot have any bearing at the time of deciding the issues in the suit. It, therefore, appears that the learned advocate for the plaintiff-bank at the material time was of the view that the order was an interim order and does not affect the rights of the parties finally. 5. On 3.6. 1991 the Manager of the Bank again sent a letter to Mr. M.R. Singla, Advocate for the plaintiff-bank. In the said letter the Bank Manager had inter alia, recorded as follows:- "When the suit was filed on 16.9.1985 for Rs. 1,05,165.16 paise our ledger balance was Rs. 74,858.28 paise plus interest till date of filing suit Rs. 30,300.88 paise against which defendant has paid Rs. 30,000/- thus leaving a balance in the ledger Rs. 44,858.28 paise besides pre-suit interest of Rs. 30.306.88 paise. In the last para of the letter advocate for the defendant bas asked us to issue a no objection certificate in respect of the vehicle so that his client's name be recorded in the Registration Certificate. But as the suit is not decreed and entire dues as per Bank's ledger is not cleared, we shall request you to give us your opinion in the matter of issuing such certificate to the defendant and also request you to bring the suit in the hearing list for final disposal." 6. But as the suit is not decreed and entire dues as per Bank's ledger is not cleared, we shall request you to give us your opinion in the matter of issuing such certificate to the defendant and also request you to bring the suit in the hearing list for final disposal." 6. It has been submitted by the applicant that it is not correct that the entire principal amount has been paid. 7. Mr. Sen, learned Advocate for the Bank submits that after the institution of the suit Rs. 30,000/- was paid In terms of the interim order passed on 14.3.1986 and thereafter, pursuant to the decree dated 23.8.1991 a further sum of Rs. 12,000/- was paid. So, it is not correct that the entire principal amount of Rs. 74,793/- has been paid. On the contrary, nothing bas been paid on account of principal. It appears to me, therefore, that the decree dated 23.8.1991 was passed on the basis of wrong impression given to the Court that the entire amount on account of principal has been paid. I have called upon Mr. Drolia, learned advocate for the defendant No.1 to ask his client to produce receipt showing if his client has paid any other amount other than Rs. 42,000/- as stated by Mr. Sen, learned advocate for the Bank. Mr. Drolia, however, has not produced any receipt. He further continues his argument instead of praying for any adjournment to produce any receipt to show that the payment has been effected. On the contrary, he submits that in the facts and circumstances of the case the decree cannot be recalled by me and relies upon a judgment of the Supreme Court in the R.N. Gosain vs. Yashpal Dhir, 1992 (4) SCC 683 . He further submits that in view of the finding in paragraph 10 of the said report and in view of the judgment of the Supreme Court at page 683 this decree cannot be recalled by me. He further submits that Order 23 Rule 3 does not apply in the facts and circumstances of the case. 8. Mrs. Mukherjee, learned advocate assisted by Mr. Tilok Bose appears as amicus curiae in the matter. It has been submitted by Mrs. Mukherjee that this decree should not be treated as a consent decree. In the instant decree the Court only gave certain suggestions which were accepted by the learned advocate. 8. Mrs. Mukherjee, learned advocate assisted by Mr. Tilok Bose appears as amicus curiae in the matter. It has been submitted by Mrs. Mukherjee that this decree should not be treated as a consent decree. In the instant decree the Court only gave certain suggestions which were accepted by the learned advocate. Acceptance of such suggestion will not make the decree a consent decree. Recording to the effect that the suit be treated by consent as in the day's list does not amount to decree being passed by consent. The mere fact that the plaintiff-bank does not object to the suggestion of the Court does not imply that the decree was passed by consent of the parties. They have further submitted that consent decree requires to be signed by the parties. 9. I have considered respective submissions of the learned advocates for the parties. It appears to me that submissions made on behalf of the defendant No.1 was totally incorrect. There is nothing on record to show that the principal amount of Rs. 74,793/- was paid by the defendant No.1. The learned advocate for the defendant No.1 also does not submit that the said amount was paid and the receipts will be produced. In that view of the matter, it appears that the submission made on behalf of the defendant No.1 by the learned Counsel on the instruction of the defendant No.1 was incorrect. Such submission made by the learned Counsel on behalf of the defendant No.1 was apparently made on the basis of wrong instruction given by the defendant No.1. The defendant No.1 should not have instructed his lawyer to make such submission. It is on record that the plaintiff-bank from the very beginning after the order was passed on 14.3.1986 was objecting to the recording in the order. Mr. Singla who was advocate for the plaintiff-bank at the relevant time disputed that the said sum of Rs. 74,793/- was paid. The Bank, in fact, wrote to the learned advocate as already noted, that the said amount or Rs. 74,793/- was never paid. It is the specific case of the Bank that the said sum of Rs. 74,793/- was not received by the Bank. 74,793/- was paid. The Bank, in fact, wrote to the learned advocate as already noted, that the said amount or Rs. 74,793/- was never paid. It is the specific case of the Bank that the said sum of Rs. 74,793/- was not received by the Bank. Under such circumstances, there is no scope in my view, to pass the said decree and the said decree was passed on the basis of the submission made on behalf of the defendant No.1 and the learned advocate for the plaintiff-bank at the material time did not object to the submission made by the learned advocate for the defendant No.1. It appears that on the basis of wrong submission made on behalf of the defendant No.1 a suggestion was given to the learned advocate for the plaintiff-bank to accept the same. It also appears that the learned advocate for the plaintiff-bank without considering the records simply stated that he has no objection to the said suggestion by the Court. This, in my view, does not amount to consent. 10. Be that as it may, it is apparent that the said decree was passed on the basis of the wrong impression given to me on that date that the entire sum of Rs. 74,793/- was paid by the defendant No.1. The defendant No.1 has not annexed any document to show that the said amount or any part thereof has been paid. On the contrary recording satisfaction of the claim of the plaintiff-bank an Annexure was made wherein certain payments have been recorded which were made between April 1986 to June 1987. It appears, only Rs. 30,000/- was paid. After adjustment of the said sum of Rs. 30,000- with the principal amount, there is a balance sum of Rs. 44,858.18 paise on account of principal. It, therefore, appeals that the submission made that the entire principal amount was paid was not correct. The Bank, as already noted, all along objected to such recording in the order dated 14.3.1986 as also to the decree dated 23.8.1991. In that view of the matter, it cannot be said that the decree passed was by consent. In this connection, as already noted the mere recording that the learned advocate for the plaintiff-bank did not object to the suggestion of the Court does not imply that there is consent to the decree which was proposed to be passed. In that view of the matter, it cannot be said that the decree passed was by consent. In this connection, as already noted the mere recording that the learned advocate for the plaintiff-bank did not object to the suggestion of the Court does not imply that there is consent to the decree which was proposed to be passed. The decisions reported in (1942)2 Kings Bench 321 and (1982)1 AER 377 referred to by the learned Counsel acting as amicus curiae may be taken note of. 11. An order made by consent should on the face of it invariably be expressed so to have been made. In this connection, the judgment and decision in the case of Chandless Chandlees vs. Nicholson, (1942) 2 All ER 315: (1942) 2 KB 321, relied on by Mrs. Mukherjee and Mr. Bose, learned advocates acting as amicus curiae may be taken note of. In the aforesaid decision the observation of Lord Greene M.R. appearing at page 324 of the said report may be considered. The relevant observation of Lord Greene M.R. is noted as under:- "The original order which Master Ball made is not on its face expressed to be a consent order, and if it was a consent order it can only have been by a very regrettable mistake or inadvertence that circumstance was not expressed in it. If an order is made by consent the practice should invariably be that it should on the face of it be expressed so to have been made. When the Court finds an order which is not expressed to be made by consent it certainly is not going to treat it as a consent order unless it is satisfied that it was in fact a consent order. In the present case I am left in considerable doubt whether this order was a consent order in the strict sense, There is a great deal of difference between a consent order in the technical sense and an order which embodies provisions to which neither party objects. In the present case I am left in considerable doubt whether this order was a consent order in the strict sense, There is a great deal of difference between a consent order in the technical sense and an order which embodies provisions to which neither party objects. The mere fact that one side submits to an order does not make that order a consent order within the technical meaning of that expression, and I am not the least bit satisfied, having regard to the conflicting statements which we have before us as to how this order came to be drawn up, that it was a consent order In the technical sense. I cannot help thinking that at the time he made that order Master Ball cannot have so regarded it, because it is impossible to think that so learned and experienced a master, when he was making a consent order, should have disregarded what I apprehend is the universal practice of expressing on the face of the order that it is a consent order." 12. The question of what is a consent was also considered in the judgment and decision referred to in the case of Siebe Gorman & Co. Ltd. vs. Pneupac Ltd., (1982) 1 All ER 377, Lord Denning M.R. while discussing about consent order held and observed which appears at page 380 of the said report as follows:- "We have had a discussion about consent orders, it should be clearly understood by the profession that, when an order is expressed to be made by consent, it is ambiguous. There are two meanings to the words by consent. That was observed by Lord Greene M.R. in Chandless Chandlees vs. Nicholson, (1942) 2 All ER 315: (1942) 2 KB 321. One meaning is this, the words by consent may evidence a real contract between the parties. In such a case the Court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this the words by consent may mean the parties hereto not objecting. In such a case there is no real contract between the patties. The order can be altered or varied by the Court in the same circumstances as any other order that is made by the Court without the consent of the parties. The other meaning is this the words by consent may mean the parties hereto not objecting. In such a case there is no real contract between the patties. The order can be altered or varied by the Court in the same circumstances as any other order that is made by the Court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without obligation?" 13. The question as to what is the effect of an order passed without any objection have also been considered in the said decision. The relevant portion of the said judgment appearing at the same page on the same question may be taken note of. Lord Denning M.R. in this connection observed as follows:- "I cannot put any such interpretation on the order which was drawn up in this case. It often happens in the Bear Garden that one solicitor or legal executive says to the other: Give me ten days. The other agrees. They go in before the master. They say: We have agreed the order. The master initials it. It is said to be by consent. But there is no real contract. All that happens is that the master makes an order without any objection being made to it. It seems to me that is exactly what happened here. The solicitors for the plaintiffs were saying: We do not object to the order. Give us the extra ten days from the time of inspection, and that is good enough. It seems to me quite impossible in this case to infer any contract from the fact that the order was drawn up as by consent." Considering the aforesaid observations made in the aforesaid decision, the order in the instant case cannot be said to be a consent order. "In my view, judgment and decision in the case of R.N. Gosain vs. Yashpal Dhir, 1992 (4) SCC 683 , cannot have any application to the facts of the instant case. "In my view, judgment and decision in the case of R.N. Gosain vs. Yashpal Dhir, 1992 (4) SCC 683 , cannot have any application to the facts of the instant case. In the aforesaid decision the High Court while allowing the revision petition filed by landlord on 6.3.1992 under Section 18A(8) of the E.P. Urban Rent Restriction Act for ejectment of the tenant petitioner, directed that the petitioner could continue in occupation of the premises for a period of one month on his (i) paying the entire arrears of rent within 15 days from the date of the judgment; and (ii) filing an undertaking with the Court of Rent Controller to the effect that he shall hand over the vacant possession of the premises on the expiry of the period of one month. The petitioner paid the rent arrears but filed a petition before the High Court under Section 151 C.P.C. for extension of time for vacating the premises without furnishing the undertaking. The High Court dismissed the petition. Thereafter the petitioner submitted an undertaking dated 20.3.1992 before the Rent Controller that he will vacate the premises and shall hand over the vacant possession on the expiry of one month from 6.3.1992 as per the order or High Court, subject to his rights for filing S.L.P. in the Supreme Court against the order of eviction. On 21.3.1992 the petitioner filed the S.L.P. before the Supreme Court. Dismissing the S.L.P. the Supreme Court held that having failed in his attempt to obtain extension of time for vacating the premises without furnishing an undertaking the petitioner had two options open to him, (i) to avail the protection from eviction from the premises for a period of one month by filing an undertaking as directed, or (ii) not to avail the said protection and run the risk of Immediate eviction. The petitioner chose the first option. In order to avail the protection from eviction from the premises for a period of one month he filed the requisite undertaking in the Court of the Rent Controller within the period of 15 day's prescribed under the directions of the High Court. The petitioner chose the first option. In order to avail the protection from eviction from the premises for a period of one month he filed the requisite undertaking in the Court of the Rent Controller within the period of 15 day's prescribed under the directions of the High Court. The statement in the undertaking that it was subject to the rights of the petitioner to file special leave petition in the Supreme Court against the order of eviction, does not have any effect on the legal consequences flowing as a result of the filing of the undertaking by the petitioner. By furnishing the said undertaking the petitioner elected to avail the protection from eviction from the premises and he enjoyed the said protection till the passing of the order by the Supreme Court on 26.3.1992 staying dispossession of the petitioner. Having done so, the petltl0ner cannot be permitted to invoke the jurisdiction of the Supreme Court under Article 136 of the Constitution and assail the said judgment of the High Court." 14. In this context, the Supreme Court further held that law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. 15. In the instant case as already noted the Bank did not agree at any point of time to the decree that was passed and all along raised objections to their Advocate on record. The said decree therefore was passed and the learned advocate acted without instruction from the Bank. Moreover, from the facts it is clear that the Court was misled by the wrong representation made by the advocates of the parties. Under such circumstances, the Court has inherent power to recall the decree passed by it. 16. The said decree therefore was passed and the learned advocate acted without instruction from the Bank. Moreover, from the facts it is clear that the Court was misled by the wrong representation made by the advocates of the parties. Under such circumstances, the Court has inherent power to recall the decree passed by it. 16. It is apparent in the instant case that the Bank never consented to the passing of this decree, on the contrary objected immediately after the decree was passed to such recording of the amount of the decree which was passed at the instance of the learned advocate for the parties. 17. Considering all aspects of the matter, in my view, the decree passed in the instant case should be recalled. 18. Accordingly, decree passed on 23.8.1991 stands recalled and set aside. 19. It is, however, made clear that I have not adjudicated on the claim of the plaintiff bank or as to the contention of the defendant No.1 as to the amount due and payable by the defendant No.1 and all questions are left open. 20. Costs of this application will be cost in the suit. The applications stands disposed of. Mr. Drolia, learned advocate for the defendant No.1 prays for stay of operation of the order which is refused.