Shivshankar Talkies v. State Bank of Idia, Hyderabad
2007-12-04
C.Y.SOMAYAJULU
body2007
DigiLaw.ai
ORDER: This petition is filed seeking review the judgment dated 07.07.2006 in A.S.No.114 of 1991. 2. Second petitioner for and on behalf of the first petitioner, which is a cinema theatre, borrowed money from the first respondent Bank for construction of the first petitioner theatre, by depositing their title deeds as security for the amount borrowed and as they failed to discharge the said debt, first respondent filed the suit for recovery of the amount by sale of the hypothica, in which first petitioner filed a written statement, which was adopted by the second respondent, inter alia contending that inasmuch as they are agriculturists within the meaning of Andhra Pradesh (Andhra Area) Agriculturists Relief Act, 1938 (the 1938 Act), they are entitled to benefits of that Act and if not as agriculturists they are entitled to reduction of interest in view of the provisions of the Usurious Loans Act, 1918 (the Act). The trial court accepting the contention of the petitioners, by reducing the rate of interest, found that they need not pay any further amount to the Bank and dismissed the suit filed by the first respondent. Questioning the same, first respondent preferred an appeal to this Court. By the judgment sought to be reviewed, this Court allowed the appeal. Now, this petition is for review the said judgment on the ground that the then counsel for petitioners failed to appear at the time of hearing of the appeal and that this Court did not properly appreciate the evidence on record. 3.
By the judgment sought to be reviewed, this Court allowed the appeal. Now, this petition is for review the said judgment on the ground that the then counsel for petitioners failed to appear at the time of hearing of the appeal and that this Court did not properly appreciate the evidence on record. 3. The contention of the learned counsel for the petitioners is that though the trial court gave cogent reasons for its conclusion that the first respondent is not entitled to the amount claimed in the suit this Court without taking into consideration two important judgments relied on by the trial Court in M.RAMACHANDRA REDDY V/s. S.RAJARATNAM NAIDU, 1989(1) ALT 265 and UNION BANK OF INDIA,VIJAYAWADA, V/s. J.MOHAN RAO, 1989(1) APLJ 388 and as this Court also failed to take into consideration the fact that the trial court had on the basis that the first respondent failed to produce the account books showing the rate of interest charged etc., drew an adverse inference against the first respondent and rightly reopened the transaction as the first respondent failed to produce any material with respect to the initial loan transaction, and reversed the judgment of the trial court by judgment dated 07.07.2006 allowing the appeal may be reviewed. The contention of the learned counsel for the first respondent is that since the grounds of review are in the nature of grounds of appeal, and so, since no ground for review is pointed out in the grounds of appeal, if the petitioners felt aggrieved by the judgment of this court, their remedy is to question the same in appeal, but not by way of a review application, and in any event, since the two decisions relied on by trial court and the counsel for the petitioners should be deemed to have been impliedly over-ruled by a Full Bench in STATE BANK OF HYDERABAD V/s. ADVATH SAKRU, AIR 1994 AP 170 (FB), where it is held that Section-21A of Banking Regulation Act, 1949 (the 1949 Act) does not make any distinction between an advance made for agricultural purpose or for commercial purpose and prohibits reopening of transaction between the Banking Company and its debtor under the provisions of the Act, there in fact are no grounds for review also. 4.
4. I find force in the contention of the learned counsel for the first respondent that this petition for review is not maintainable because the grounds for review are in the nature of grounds of appeal, but not as grounds for review. Counsel for the petitioners not being heard at the time of passing of the judgment sought to be reviewed, due to his absence at the time of hearing is not a ground for review. So, the appeal was allowed on merit after hearing the counsel for the first respondent i.e. the appellant. If the petitioners felt aggrieved by the disposal of the appeal without hearing their counsel, the remedy open to them is to file an application under Order-41, Rule-21 CPC to rehear the appeal by showing the cause, which prevented their counsel from appearing before the Court when the appeal was called for hearing, but not by way of filing a petition for review. 5. Be that as it may, the grievance of the petitioners seems to be that this court did not take into consideration the reasons that were taken into consideration by the trial court for reopening the transaction by applying the provisions of the Act. For the provision of the Act being applied, the debtor being an agriculturist is the sine qua non. For a person to be an 'agriculturist' as per the provisions of the Act, he must be a tiller of the soil and mere possession of agricultural land per se does not make him an 'agriculturist' within the meaning of the Act, unlike the 1938 Act. So, the first petitioner, which is a cinema theatre, in any event is not entitled to invoke the provisions of the Act. Be that as it may, M.RAMACHANDRA REDDY's case (1 supra) relied on by the trial Court and the learned counsel for the petitioners relates to a transaction between two individuals, but not between a Bank and its debtor. So, the effect of Section-21A of the 1949 Act was not considered therein. So, that decision is of no help to the petitioners.
So, the effect of Section-21A of the 1949 Act was not considered therein. So, that decision is of no help to the petitioners. Placing strong reliance on the observations in para-12 of J.MOHAN RAO's case (2 supra), where the Court basing on the observation of a Division Bench in an earlier case that the benefit of Section-21A of the 1949 Act granted by the trial court in respect of a transaction that took place before introduction of Section-21A in the 1949 Act cannot be taken away by the High Court in an appeal preferred by a Bank, negatived the contention of the Bank that in view of Section 21-A of the 1949 Act the court cannot grant relief to a debtor by reopening the transaction. In view of the decision of the Full Bench in ADVATH SAKRU's case (3 supra), where it is held that the Court, in view of Section 21-A of the 1949 Act, cannot reopen a transaction with a Banking Company on the ground of the interest charged by on the advances made by it are excessive. J.MOHAN RAO's case (2 supra) must be deemed to have been impliedly over-ruled. 6. For the above reasons, I find no merit in this petition and hence is dismissed. No costs.