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Allahabad High Court · body

2013 DIGILAW 2036 (ALL)

Bimla Singh v. Authorised Officer, Allahabad Bank

2013-08-05

R.K.GUPTA

body2013
JUDGMENT : R.K. GUPTA, J. (CHAIRPERSON) 1. The present appeal is preferred under Section 18 of the SARFAESI Act, 2002 challenging the order passed by the Tribunal on 5th February, 2013 in S.A. No. 272/2012, by this order the securitisation application has been dismissed by the Tribunal. The impugned order has been passed by the Presiding Officer, DRT, Jabalpur and on the date of order the Presiding Officer, DRT, Jabalpur was holding the charge of the DRT, Lucknow. 2. The relevant facts for the adjudication of the present case are that the appellants are the borrowers and the recovery amounting to Rs. 6,06,725/- with interest was to be effected after issuing the notice of demand dated 23rd April, 2009. The same was not paid and the property was put to auction. The sale proclamation was published on 19th December, 2012. The auction as such was challenged by the appellant by filing the securitisation application under Section 17 of the Act, 2002 before the Tribunal. 3. As per the judgment impugned, the Tribunal was of the view that since there was order passed by the Tribunal on 17th December, 2012, was not complied with, therefore, in terms of the judgment passed by the Apex Court in Prestige Light Ltd. v. State Bank of India, VII (2007) SLT 440 : III (2007) CLT 296 (SC) : 2007 AIR SCW 5330, the appeal is liable to be dismissed with the cost of Rs. 10,000/-. 4. Earlier, the appeal was dismissed by the Registrar for not depositing the amount up to the extent of 25% which was mandatory by virtue of Section 18 of the SARFAESI Act, 2002. Thereafter, the appellant moved an appeal-in-chamber for recall of that order, as the amount of 25% was deposited through two Demand Drafts. On appeal-in-Chamber preferred by the appellant, this Tribunal directed to issue the notice to the respondent Bank. 5. The said appeal-in-chamber was allowed by this Tribunal by an order dated 4th July, 2013 and the case was directed to be listed for admission on 12th July, 2013. On the said date the learned Counsel for the Bank appeared and it was submitted that the Tribunal below has dismissed the securitisation application on the ground that some order was passed by the Tribunal on 17th December, 2012, wherein certain conditions were imposed. On the said date the learned Counsel for the Bank appeared and it was submitted that the Tribunal below has dismissed the securitisation application on the ground that some order was passed by the Tribunal on 17th December, 2012, wherein certain conditions were imposed. The Tribunal was of the view that the conditions appended to the order dated 17th December, 2012 since were not complied with, therefore, in the light of the judgment passed by the Apex Court in Prestige Lights Ltd. (supra), the securitization application was dismissed. 6. Learned Counsel for the appellants submitted that the appellants have not known about the order dated 17th December, 2012 passed by the Tribunal and it is further submitted that no such order was passed by the Tribunal as per the knowledge of the appellants. 7. On the basis of the same, the information was sought by the Appellate Authority from the Registrar, DRT, Lucknow. Section Officer, DRT, Lucknow vide his letter dated 18th July, 2013 has intimated to this Tribunal that there was no order dated 17th December, 2012 passed by the Tribunal in the case in hand. Thereafter, the notice was issued to the Presiding Officer, DRT, Jabalpur, who was on the relevant date holding the charge of DRT, Lucknow. 8. The record of the Securitization Application No. 272/12 was also sent to the Presiding Officer, DRT, Jabalpur on 23rd July, 2013 so that after perusal of the record, the correct explanation can be offered by the Presiding Officer, DRT, Jabalpur. Thereafter, the Presiding Officer, DRT, Jabalpur has submitted its reply dated 29th July, 2013, which was received to this Tribunal on 1st August, 2013. The relevant extract of the same is as under : There were several other cases for orders for the same day i.e. on 5th February, 2013. Due to pressure of work during the period of additional charge of Lucknow as well and due to inadvertence, the Page 2 of some other judgment prepared earlier happened to be kept with the judgment in this case. The order dated 17th December, 2012 was not of this case but of S.A. No. 313/12 which was also finally decided on 5th February, 2013. The order dated 17th December, 2012 was not of this case but of S.A. No. 313/12 which was also finally decided on 5th February, 2013. After receiving the records in S.A. No. 272/12 today sent from Lucknow as directed by Your Lordship when the judgment was searched in the computer I was able to find out the discrepancy by referring to the relevant documents referred in this case records as well as the affidavit with the stay application. It is therefore humbly requested that the error which by the inadvertence has crept in the judgment due to pressure of work, where a wrong and erroneous page was sent with the 1st Page of the judgment in S.A. 272/12 may kindly be condoned and I may be pardoned for the mistake finding the same as not a deliberate or wilful one. 9. After explanation the judgment passed in S.A. No. 313/12 was directed to be sent to this Appellate Tribunal and the Registrar, DRT, Lucknow has sent the record of this case. Thereafter, the Page No. 2 of the said judgment of which the shelter was taken that it was attached wrongly, has been compared. 10. At the first instance, this is to be seen that the present case is a classical example of judicial negligence by the judicial officer. Because of the negligence the Appellant against whom the total dues claimed by the Bank were for a sum of Rs. 6,06,725/- has been made to suffer by filing an appeal and also to suffer with regard to pre-deposit of 25% of the amount due as per third proviso appended to Section 18 of the SARFAESI Act, 2002. The appellant has also deposited the same with this Tribunal to maintain the appeal. 11. Before considering the explanation, it is admitted in the present case that there was no order passed on 17th December, 2012 by the Presiding-Officer, DRT, Jabalpur and the securitization application was dismissed only on the ground that certain conditions mentioned in the order dated 17th December, 2012 were not complied with, therefore, the case was dismissed for non-compliance of the order dated 17th December, 2012 in the light of the judgment passed by the Supreme Court in Prestige Lights Ltd. (supra). Since the case was dismissed on wrong reasons, the order passed by the Tribunal has to be set aside. 12. Since the case was dismissed on wrong reasons, the order passed by the Tribunal has to be set aside. 12. The judicial negligence while performing the duty of judicial officer, it is the only expectation that a judicial officer will act with application of mind and while discharging duty any negligence major or minor may result into a great prejudice to the poor litigant. Therefore, it is the duty of a judicial officer to be more careful before signing the judgment. 13. The factual scenarios which are referred in the judgment for adjudication of the rival claims of the parties have to be marshaled carefully to verify the difference of three different judgments and also to consider, whether the page No. 2 of three judgments are entirely different. 14. From the comparative reading of the page No. 2 of the judgments as aforesaid, it is clear that the order dated 17th December, 2012 was not of this case but was of S.A. No. 313/2012 which was also decided on 5th February, 2013. 15. The beginning of page No. 2 of the judgment passed in S.A. No. 313/12 does not match with the page No. 2 of the judgment impugned filed alongwith appeal and the judgment sent by the Presiding Officer along with the explanation. Thus, there was no question of attaching the wrong page No. 2. 16. The job of a judicial officer is not a job of routine nature but he owes the duty to the society not only to be careful while adjudicating the claims but also a duty is cast upon the judicial officer that he shall act in most careful manner rather being casual in approach while writing a judgment. Any casual approach of a judicial officer may prejudice the justice to a party who deserves justice. 17. In the light of the aforesaid observation, if the explanation offered by the Presiding Officer is to be considered, where it is stated that the error is due to inadvertence in the judgment due to pressure of work, where a wrong and erroneous page was sent with the 1st page of the judgment in S.A. No. 272/2 and it deserves to be condoned and may be pardoned for the mistake finding the same as not a deliberate or wilful one. 18. 18. On the basis of such an admission, it appears that the Presiding Officer, DRT, Jabalpur was of the view that the second page was erroneously attached to the first page, therefore, the mistake has crept. The real page No. 2 appended to page No. 1 by taking the print from the computer of DRT has also been sent. 19. This is to be seen at the first instance such an explanation apparently has to be rejected because when the judgment appended alongwith the appeal and the judgment appended by the Presiding Officer to the explanation through letter dated 29th July, 2013 are to be compared, then till sixth line of para No. 1 of the page No. 2 of both the judgments are the same, where the sentence finishes with the word "produced as CA3 to CA4". Therefore, in other two paragraphs of the same page, the texture of the judgment received alongwith the explanation changes with the judgment filed with appeal. 20. Thus, under no stretch of imagination, this can be accepted that the second page has wrongly been attached to the first page and the second page of the judgment filed is of a different case. For the purpose of clarity, the following chart shall make the position clear which are as under : Page No. 2 of the Judgment filed along with the appeal. Page No. 2 of the sent by the Presiding Officer along with the explanation. Page No. 2 of the judgment passed in S.A. No. 313/12. “Pursued by the Bank against its borrowers for the recovery of the dues amounting to Rs.6,06,725/- with interest as per demand notice CA1 dated 23.3.2009, The Bank is seen to have taken possession of the property as per CA2 and the property was put to auction after obtaining the valuation report from the valuer and the sale notice was published on 19.12.2012 produced as CA3 & CA4. when it is revealed that the order dated 17.12.2012 was not complied with there is no scope for further proceedings in this appeal following the ratio of the decision of the Hon’ble Apex Court reported in AIR 2007 SCW 5350 . The interim order on merits part of this judgment to avoid repetition of finding on merit. when it is revealed that the order dated 17.12.2012 was not complied with there is no scope for further proceedings in this appeal following the ratio of the decision of the Hon’ble Apex Court reported in AIR 2007 SCW 5350 . The interim order on merits part of this judgment to avoid repetition of finding on merit. The appeal is, therefore, dismissed with cost of Rs.10,000/- to the respondent-Bank which is granted liberty to proceed with the recovery of dues strictly as per provision of Act, 2002. When it is revealed that the order dated 17.12.12 was not complied with there is no scope for further proceeding in this appeal following the ratio of the decision of the Hon’ble Apex Court reported in AIR 2007 SCW 5350 . The interim order on merit dated 17.12.12 is made part of this judgment to avoid repetition of finding on merits. The appeal is, therefore dismissed with cost of Rs.10,000/- to the respondent-Bank which is granted liberty to proceed with the recovery of dues strictly as per provisions of the Act, 2002.” “Pursued by the Bank against its borrowers for the recovery of the dues amounting to Rs.6,06,725/- with interest as per demand notice CA1 dated 23.3.2009, The Bank is seen to have taken possession of the property as per CA2 and the property was put to auction after obtaining the valuation report from the valuer and the sale notice was published on 19.12.2012 produced as CA3 & CA4. When no illegality as pleaded in this appeal is proved against the respondent-Bank, there is no scope for interference in this appeal under Section 17(3) by this Tribunal. In Para 8 of the filed by the appellant in support of the IA for stay dated 28.1.2013, it is seen submitted that they are ready to liquidate the dues so as to redeem the property before the confirmation of sale to which the Bank has no objection and for which interference by this Tribunal is required because of the mandate under Section 13(8) of the Act, 2002. Therefore, appeal found to be devoid of merit is dismissed with costs directing the appellant to comply with the mandate of Section 13(8) of Act, 2002. Therefore, appeal found to be devoid of merit is dismissed with costs directing the appellant to comply with the mandate of Section 13(8) of Act, 2002. The Bank is given the liberty to proceed as per law, if the dues are not liquidated by the appellant as stated in Para 8 of the affidavit to the stay application.” “Fix 28 th January, 2013 compliance report by the appellant along with receipt in proof of remittance and reply by the Respondent-Bank.” No compliance report is seen produced in this case when put up for hearing on 4.2.2013 at DRT, Jabalpur or produced before the Registrar, DRT, Lucknow prior to 28.1.13. Today there is no representation for the appellant. When it is revealed that the order dated 17.12.2012 was not complied with there is no scope for further proceedings in this appeal following the ratio of the decision of the Hon’ble Apex Court reported in AIR 2007 SCW 5350 . The interim order on merits part of this judgment to avoid repetition of finding on merit. The appeal is, therefore, dismissed with cost of Rs.10,000/- to the respondent-Bank which is granted liberty to proceed with the recovery of dues strictly as per provision of Act, 2002. 21. Thus when the new Sentence of Para 1 of Page 2 from S.A. No. 313/12 starts, the same is found to be different, but the later part of the same page relates to the facts of the S.A. No. 272/2012. After six lines also of the same page No. 2 from the top, it is not afresh para, but forms part of the same para though the judgment which has been sent alongwith the explanation does not form a part of six lines of the judgment, which is filed along with the appeal. If the explanation is to be accepted, then fresh sentence of page No. 2 completely will be changed and not part of the paragraph one of page No. 2. 22. It is submitted in explanation that because of inadvertence the error has crept. The word "inadvertence" means "an accidental oversight, a result of carelessness" as defined in Black's Law Dictionary Ninth Edition at Page No 827. 23. 22. It is submitted in explanation that because of inadvertence the error has crept. The word "inadvertence" means "an accidental oversight, a result of carelessness" as defined in Black's Law Dictionary Ninth Edition at Page No 827. 23. In its explanation submitted that the correct judgment in S.A. No. 272/12 has been placed which has been taken from the computer, which may be taken into account at the time of passing of the judgment, the explanation apparently does not gibe the correct facts to the situation with regard to the comparison of the beginning of page No. 2 of the judgment filed along with the appeal and the judgment sent along with the explanation. 24. The pressure of work should not come in away while discharging judicial function. The pressure of work may not give good quality of the judgment, but that does not mean, the pressure of work absolutely will have the effect of changing the scenario of the case and even by changing the judgment and thus, the explanation as offered that wrong and erroneous page sent with the first page of the judgment in S.A. No. 272/12, cannot be accepted. This is not the case that the page No. 2 along with these two appeals was sent or supplied to the appellant. Whatever the judgment is on record, the same has been supplied. Thus, the explanation as offered that wrong and erroneous page was supplied with the page No. 1 of the judgment in S.A. No. 272/12, cannot be accepted. Whatever was the judgment on record, the same has been supplied to the parties. The record of the case reveals the same. 25. With regards to the unintentional mistakes committed, of course some mistakes are liable to be ignored, which are clerical in the nature, but where the whole texture of the judgment changes, which is clear from the earlier paragraphs of the judgment, then such a mistake is nothing but is a deliberate dismissal of the case by supplying the wrong reasons which were irrelevant for dismissal of the securitization application, without any motive. 26. 26. It is known that Section 18 of the SARFAESI Act, 2002 as regards the provision for preferring the appeal against the final orders, the IInd and IIIrd provisos appended to Section 18 of the SARFAESI Act, 2002 imposes an obligation and liability on the borrower to make pre-deposit for the purpose of maintaining the appeal. Thus, any carelessness at the time of signing the judgment apparently results in injustice and prejudice to a person who comes to a Court of Law for the redressal of his grievance. A party suffers due to wrong and carelessness of a judicial officer as he may have no funds to make pre-deposit to maintain the appeal under Section 18 of the Act, 2002 or have no sufficient funds to meet the expenses. The appellate authority is also left with no discretion to waive the amount, where in the judgment any carelessness is found and there are grounds to set aside the judgment, but in the absence of any pre-deposit the appellate authority is not in a position to entertain the appeal and the result would be that the genuine litigant will suffer because of the fault, carelessness and unintentional mistake on part of the judicial officer while discharging the judicial function. 27. More care and caution are the ingredients of good judgment and good judicial officer, but merely to say that the mistake was because of the pressure of work and mistake is liable to be condoned and pardoned, this do not get rid of the responsibility of a judicial officer. If such type of approach is adopted by the judicial officer in judicial function, the judicial officer does great injustice to the litigants. Wrong application of law relating to the appreciation of law and fact in the judgment is certainly to be ignored as every judicial officer has discretion to decide the case in accordance with his own conscious, but deciding the case on the basis of certain facts not born out from the record of the case would be an act of negligence and cannot be said to be an act of justice. 28. This is also to be seen that if the mistake is because of cut and paste from the computer, then still that shows negligence and for the reason stated hereinabove, such negligence since results into a prejudice to the litigant, cannot be ignored. 28. This is also to be seen that if the mistake is because of cut and paste from the computer, then still that shows negligence and for the reason stated hereinabove, such negligence since results into a prejudice to the litigant, cannot be ignored. The question is how a poor litigant can be compensated, who is a victim of carelessness of a judicial officer. 29. This is not one case but there are various cases in which this Appellate Tribunal has observed the carelessness and for the example, few case are as under: 1. Appeal No. R-205/12 (Decided on 16th July, 2013) (Assets Reconstruction Co. (India) Ltd. v. The Company Secretary, Welspun India Ltd.): Application was allowed by the Tribunal by ignoring the objection raised by the securitization company that the securitization application is barred by time. There is no whisper in the judgment with respect to the condonation of delay or its application and a sum of Rs. 99.20 lacs was awarded to be paid by the securitization company to the applicant. 2. Appeal Sr. No. 296/13 (Pending) (Suresh Kumar Chourasiya v. State Bank of India): There was an application for condonation of delay on record, but the Tribunal held that no application for condonation of delay was filed. 3. Appeal No. R-198/12 (Decided on 17th July, 2013, (Housing and Urban Development Corporation Ltd. v. Central Government Employees Cooperative Housing Society Ltd.) : In this case, the Tribunal dismissed the original application by taking contrary view. The contrary view was taken in S.A. No. 164/2010 decided on 21st February, 2013, Munna Lal Choudhary v. Sarguja Kshetriya Gramin Bank. Ultimately this Tribunal allowed the appeal. 30. Thus, any judicial officer cannot be permitted to go on committing the mistakes under the grab of pressure of work or due to inadvertence and if the mistake is once, then it may be condonable but repeated mistakes shocks the conscious of justice and the litigants, as no litigants, will have faith in a Court of Law. 31. For the reason stated hereinabove, the order passed by the Tribunal is set aside and the case is remanded to the Tribunal for its fresh decision. Money deposited by the appellant with this Tribunal to maintain the appeal be returned to the Bank, as the dues are still to be recovered. The said amount shall be adjusted towards the total dues.