JUDGMENT : Antony Dominic, J. In 1991, the petitioners availed of a performance mobilisation guarantee of Rs.100 lakhs from the respondent bank. On its invocation, as on 9.5.1994, Rs. 45,43,376/- was due to the Bank. Though payment was defaulted, on 03.04.2008, petitioners paid Rs. 1.5 crores. In spite of it, the Bank now claims that more than Rs. 27 crores is due to it. 2. Petitioners are husband and wife and were the partners of a firm, M/s.Bainds Associates. In connection with a contract work that the firm had undertaken with the Konkan Railway Corporation, on 21.10.1991, as per Ext.R(p) sanction letter, the firm had availed of a performance mobilisation guarantee of Rs. 100 lakhs from the Bank. As security, apart from margin money deposit of 25% and a counter guarantee, a plot of land owned by M/s.Bainds Towers (Pvt) Ltd., a company, of which, the petitioners were the Directors, was mortgaged: On 9.5.1994, Konkan Railway Corporation invoked the Bank Guarantee and thereupon, the Bank paid Rs. 67.20 lakhs. After appropriating Rs. 21,76,624/ - provided as margin money, the Bank demanded payment of Rs. 45,43,376/- from the defaulters, viz., the firm, its partners, including the petitioners herein and the company. 3. Due to their failure to pay the amount demanded, on 5.09.1995, the Bank filed O.S.No.816 of 1995 before the Sub Court, Trivandrum. The Sub Court declared the defendants exparte and on 31.10.1996, by Ext.P 1, the suit was decreed as prayed for allowing the Bank to realise Rs. 58,07,134.05 with interest @23.25% with quarterly rest till realisation, with costs from the defendants and their assets. It was also decreed that if the defendants failed to pay the amount within 2 months, plaint A and B schedule properties can be brought to sale. 4. Subsequently, the Bank filed O.A.23 of 1999 before the Debt Recovery Tribunal (Kerala and Lakshadweep). The O.A. was allowed with costs of Rs. 12,000/- by Ext.R(e) final order. By this order, the Bank was allowed to realise Rs. 1,36,25,152.03 together with interest u, 23.25% with quarterly rest from 1.3.1999 till realisation, on Rs. 74,62,116.98. Thereafter, on an application filed by the Bank, the Tribunal passed Ext.R(f) order and by this order, the figure Rs. 74,62,116.98 occurring in para 7 of Ext.R(e) order was corrected to be read as Rs. 1,32,69,251.03. 5. 1,36,25,152.03 together with interest u, 23.25% with quarterly rest from 1.3.1999 till realisation, on Rs. 74,62,116.98. Thereafter, on an application filed by the Bank, the Tribunal passed Ext.R(f) order and by this order, the figure Rs. 74,62,116.98 occurring in para 7 of Ext.R(e) order was corrected to be read as Rs. 1,32,69,251.03. 5. In 2007, the petitioners, along with the firm and the company, filed I.A.Nos.1492/ 2007 and 1491/2007 before the DRT, Ernakulam, praying to set aside the ex parte decree passed by the Sub Court and to condone delay of 10 years and 10 months in applying for the same. Copies of these applications are Exts.P2 and P3 and Ext.R(g) is the counter affidavit filed by the Bank opposing LA. 1491/2007. 6. The contentions urged in Exts. P2 and P3 are mainly that; (1) Summons issued by the Sub Court were not served on the defendants, (2) From 1996, the petitioners are residing in Bahrain and that on account of the orders passed by Bahrain courts, 1st petitioner was restrained from travelling outside the country. It is also stated that permission sought for travelling to India was denied and that during this period his wife, the second petitioner, was also in Bahrain, (3) By order dated 4.8.1998, the judgment and decree were amended by the court without notice to them, (4) From the beginning Ist petitioner was trying to persuade the Bank to settle the liability and that relying on the ex parte judgment and decree illegally obtained, the Bank was making unreasonable demands, and(5)According to the petitioners, the delay of 10 years and 10 months was not will ful and should be condoned, lest serious injustice and prejudice would be caused to them. 32 7. When the aforesaid applications were pending consideration of the DRT, the Recovery Officer notified the mortgaged property for sale on 5.2.2008. Thereupon, the 1st petitioner filed W.P (C).No.2739/2008 before this Court. That writ petition was disposed of by Ext. P4 judgment, and this Court directed the 1st petitioner to remit Rs. 1.5 crores on or before 28.2.2008 and the Tribunal was directed to pass orders on Exts.P2 and P3 on 29.2.2008. Sale was also ordered to be kept in abeyance till 29.2.2008. Later, I.A.No.4322/ 2008 was filed seeking extension of time and accordingly, time for payment was extended till 25.3.2008. Exts.P2 and P3 were considered by the Tribunal and were dismissed by Ext. Sale was also ordered to be kept in abeyance till 29.2.2008. Later, I.A.No.4322/ 2008 was filed seeking extension of time and accordingly, time for payment was extended till 25.3.2008. Exts.P2 and P3 were considered by the Tribunal and were dismissed by Ext. P5 common order dated 31.3.2008. Despite Ext.P5 order, though belatedly, petitioners remitted Rs. 1.5 crores on 3.4.2008 by cheques, copies of which is Ext.P6 and this amount was realised by the Bank. 8. Challenging Ext.P5 common order, the petitioners, the firm and the company, filed M.A.248/2008 and M.A.249/2008 before the Debt Recovery Appellate Tribunal. The appeals were dismissed by Ext.P7 common order. Thereafter, the Recovery Officer, DRT issued Ext.P8 sale proclamation. It was thereupon, this O.P. was filed invoking the supervisory jurisdiction of this Court, under Article 227 of the Constitution of India and the prayers sought are to quash Exts.PS and P7 and to direct the Bank to settle the liability, accepting the amount already paid. 9. The contention raised by the Senior Counsel for the petitioners was that the Tribunals committed gross illegality in rejecting the applications for condonation of delay and to set aside the ex parte decree. Further, counsel also contended that the Sub Court illegally ordered substituted service and proceeded with the suit ex parte, that both the Sub Court and the Tribunals did not exercise their power under Section 34 of Civil Procedure Code or consider the unconscionableness of the rate of interest of 23.25% with quarterly rest charged by the Bank and that too, at a time when the prevailing market rates were far below and banks were settling cases waiving interest, penal interest etc. According to the counsel, at any rate, pendente lite and the post decree period, interest ought not have been granted at 23.25% and that too, with quarterly rest. 10. Counter Affidavit has been filed by the respondent Bank. According to the Bank, there has been a long and inordinate delay of 10 years and 10 months in applying to set aside the ex parte decree that was passed by the Sub Court and that the delay has not been properly explained by the petitioners. It is also their case that there has been latches and negligence on the part of the petitioners disentitling them to get the delay condoned. It is also their case that there has been latches and negligence on the part of the petitioners disentitling them to get the delay condoned. Therefore, according to the Bank, the Tribunal was fully justified in dismissing the application for condonation of delay and the appellate tribunal was also justified in dismissing the appeal. They also contended that the Guarantee was furnished on the basis of an agreement between the parties, which entitled it to 23.25% interest with quarterly rest and the petitioners having voluntarily agreed for the same, cannot contend that the rate of interest is unconscionable. Therefore, it was contended that the sub court was fully justified in awarding the contract rate of interest. 11. In this background, the first issue that arises for decision is the legality of the order of the Tribunal rejecting the application for condonation of delay and to set aside the ex parte decree. I shall first examine the principles laid down by the Apex Court in dealing with applications for condonation of delay. There is a long line of judgments, where it has been repeatedly held that, in dealing with applications seeking condonation of delay, the court should, except in cases of proved negligence and latches, adopt a liberal approach. 12. In this context, it is profitable to refer to the judgment in Collector, Land Acquisition, Anantnag and another v. Mst katiji and others, [ 1987(2) SCC 1071 : 1987 ICO 174, where, the following principles have been laid down: " 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second' s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-de-liberate delay. 5. The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-de-liberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 13. In N.Balakiishnan v. M. Kishnamurthy, [ 1998 (7) SCC 123 ], the Court held that; "9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be condonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the lower Court. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have Incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss." 14. Again in Postmaster General and Others v. Living-Media India Limited and Another, [ 2012 (3) SCC 563 ], it was held thus; "28. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss." 14. Again in Postmaster General and Others v. Living-Media India Limited and Another, [ 2012 (3) SCC 563 ], it was held thus; "28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. 29. In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay." 15. Subsequently, in Maniben Devraj Shah v. Municipal Corporation of Britian, Mumbai [ 2012 (5) SCC 157 ] : 2012 ICO 363, referring to the earlier precedents and declining to condone delay of 7 years and 3 months, the Apex Court held thus in paragraphs 15 and 23; "15. Subsequently, in Maniben Devraj Shah v. Municipal Corporation of Britian, Mumbai [ 2012 (5) SCC 157 ] : 2012 ICO 363, referring to the earlier precedents and declining to condone delay of 7 years and 3 months, the Apex Court held thus in paragraphs 15 and 23; "15. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but 35 over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay. 23. What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost." 16. 1n this context the counsel for the Bank contended that the judgment in the case Maniben Devraj Shah was rendered without referring to the judgment in Post Master General 's case. Therefore, according to him, the judgment in Maniben Devraj Shah's case being per incurium, this Court should follow the judgment in Post Master Generals case. Although the counsel is right in contending that Maniben Devraj Shah's case was decided by a Bench of equal strength and that it did not make reference to the Post Master Generals case judgment, having gone through both the judgments, I don't find anything contradictory in these judgments. On the other hand, the judgment in Post Master Generals case show that after holding that liberal construction should be adopted to advance substantial justice, the court declined to condone the delay due to absence of proper explanation. Therefore, the judgment in Maniben Devaraj Shah case (supra) does not lay down any principle contrary to what is laid down in Post Master General' s case (supra). 17. Therefore, the judgment in Maniben Devaraj Shah case (supra) does not lay down any principle contrary to what is laid down in Post Master General' s case (supra). 17. That apart, even if there is substance in the contention that these two judgments lay down principles which are inconsistent, then also the question would be which of the judgments is to be followed by this Court. This precise question was considered by a Full Bench of this Court in Raman Gopi v. Kunju Raman Uthaman, ( 2011 (4) KLT 458 ]:2011 ICO 1344, where, after surveying all relevant precedents, it was held in paragraph 60(1) as follows: 60. The legal position, which therefore emerges on a discussion and analysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarised below: (i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one; Therefore, for both these reasons, the aforesaid contention raised by the counsel for the Bank cannot be accepted. 18. Further, the principles to be followed, while dealing with such applications, were considered by this Court in Pokkku v. Aninuni, 1987 (2) KLT 308 :1987 1CO 1529, where it was held thus: 5. It is true that at the stage of considering applications like these under Order 9, Rule 9 or Order 9, Rule 13 or Section 5 of the Limitation Act, merits of the claims and objections may not be very relevant materials that could influence the judicial mind. But when the object and purpose of the existence of courts and those for which parties are approaching legal institutions are taken into account, such considerations cannot be said to be totally irrelevant in all cases. Sometimes such considerations also may have to weigh with the court in giving the judicial verdict whether there was 'sufficient cause' as envisaged in Order 9, Rule 9 . That may sometimes help the court even in the absence of clinching evidence regarding 'sufficient cause' to come to a practical conclusion which subserves the ends of justice better. Sometimes such considerations also may have to weigh with the court in giving the judicial verdict whether there was 'sufficient cause' as envisaged in Order 9, Rule 9 . That may sometimes help the court even in the absence of clinching evidence regarding 'sufficient cause' to come to a practical conclusion which subserves the ends of justice better. Ordinarily a litigant who approaches the court with a genuine and substantial claim or contention and who knows that he is likely to suffer heavily by his absence, may not purposely evade court merely with a view to try his chance by a petition under Order 9, Rule 9 or R. 13. There may be cases where though the absence was not wilful or due to reasons beyond control, the party may not be able to offer an explanation which is fully convincing to the court or prove the same satisfactorily. In such circumstances, there is a wide discretion with the court in deciding what 'sufficient cause' is for the purpose of allowing or rejecting the prayer. 'Sufficient cause' is an elastic expression for which no hard and fast guidelines could be given. The decision on the question must be the cumulative effect of various factors depending upon the facts and circumstances of each case. The nature of the claims or contentions and the effect which the decision of the case is having on the rights of parties cannot be ruled out as absolutely foreign to the area of consideration under any circumstances. In appropriate cases if such considerations also weighed with the court, it cannot be said to be a jurisdictional error. 6. In this context the learned counsel for the revision petitioner drew my attention to the decision in Ramanatha Iyer v. Ibrahim Rowther, ( 1961 KLT 18 ): 1960 ICO 712, wherein a Single Judge of this Court held that a decree passed in a suit cannot be lightly set aside especially without proper legal grounds therefore and it cannot be done as a matter of judicial generosity in any special case, reminding that decisions should always be governed by the head and not by the heart. As normal principles to be followed in ordinary circumstances, there cannot be any dispute with those propositions. As normal principles to be followed in ordinary circumstances, there cannot be any dispute with those propositions. But there may be instances where equitable considerations may have to come from the heart also without doing violence to what comes from the head .......................................................................... 7. All these provisions are introduced to enable the courts to do substantial justice as between parties and avoid law's delays. Interpretations must always be in consonance with that purpose. That does not mean that whatever may be the negligence each and every application under Order 9, Rule 9 or R. 13 will have to be allowed in cases where refusal will amount to negation of a substantial claim or rejection of a substantial contention. That is a matter for the judicial mind to decide influenced by various considerations which cannot be put in a straight jacket. Law should be applied with facts in a meaningful and practical manner which subserves the ends of justice. Courts will have to bear in mind that ordinarily a litigant approaching a court with a bona fide claim does not stand to benefit by purposely absenting himself and courting a dismissal for default. In a case where there are more plaintiffs or more defendants, any one may be in complete charge of the case and others may be only silent spectators unable to do anything substantial for the conduct of the case due to various reasons. To insist that sufficient cause for absence in the case of each and every one among them will have to be proved may not sometimes be a practical approach. But there may be cases in which temples of justice are being misused with vexatious suits or contentions with ulterior motives. Such persons may be misusing the provisions of Order 9, Rule 9 or 13 or Section 5 of the Limitation Act or other provisions. Judicial wisdom and experience must enable the courts to distinguish the chaff from the corn. When once that is done substantial justice must be preferred to technical considerations in deserving cases. There is no presumption that non appearance is deliberate or on account of culpable negligence or mala fides. Judicial wisdom and experience must enable the courts to distinguish the chaff from the corn. When once that is done substantial justice must be preferred to technical considerations in deserving cases. There is no presumption that non appearance is deliberate or on account of culpable negligence or mala fides. That is what the Supreme Court said in a recent decision reported in Collector Land Acquisition, Anantnag, v. Katiji, AIR 1987 SC 1353 , Though that decision was concerning Section 5 of the Limitation Act the principles evolved are equally applicable in matters coming under Order 9, Rule 9 or 13 also." 19. From the judgments referred to above, it can be safely concluded that while dealing with applications for condonation of delay, length of the delay is not very material and even if there was some latches on the part of the litigant if the explanation does not smack of mala fides or is not put forward as a dilatory tactics and when there is no ground to think that the delay was deliberately occasioned to gain time, the court should lean in favour of the applicant so that, a case would be decided on merits. Further, the endeavour of the court shall be to advance substantial justice and while doing so, consideration of prejudice to the opposite side shall also be a relevant factor which would be taken into account. 20. Bearing these principles also in mind, I shall proceed to consider the main issue, viz., the legality of the orders passed by the Tribunal and the Appellate Tribunal rejecting the applications for condonation of delay and the order confirming the same. Ext. P I is the ex parte judgment of the Sub Court, which was rendered on 31.10.1996. Exts. P2 and P3, I.A. Nos.1491/07 and 1492/07 are the applications that were filed before the Tribunal. Ext. R(g) is the counter affidavit filed by the Bank and Ext. P5 is the common order passed by the Tribunal dismissing the petitions. 21. In the similarly worded affidavits filed in support of Exts. Exts. P2 and P3, I.A. Nos.1491/07 and 1492/07 are the applications that were filed before the Tribunal. Ext. R(g) is the counter affidavit filed by the Bank and Ext. P5 is the common order passed by the Tribunal dismissing the petitions. 21. In the similarly worded affidavits filed in support of Exts. P2 and P3 petitions, the case pleaded by the petitioners are that, summons was not served on defendants 1, 2, 3 and 7 in the suit, that from 1996, the petitioners are residing in Bahrain, that the 1st petitioner was restrained by an order of the Bahrain court from travelling outside that country, that during 2000-2007, he was denied permission to travel out of Bahrain, that they were not given notice before correcting the judgment and decree by order dated 4.8.1998, that no notice was issued to them before order dated 1. 12,2000 was passed for the issuance of the recovery certificate for Rs. 1,36,25,152.03 with interest @ 23.25% on Rs. 74,62,116.98 with quarterly rest from 1.3.1999, that in 2004, the Bank filed I.A.2277/04 for correcting the order dated 1. 12.2000 and that since the petitioners were abroad, they did not get an opportunity to read the petition. It was further averred that since beginning, the petitioners were negotiating with the Bank to settle the liability and that in May, 2007, the Bank made an unreasonable demand of Rs. 4.5 crores to settle the liability which was rejected by the petitioners. It is also stated that after the last week of June 2007, when all their efforts for settlement failed, the petitioners obtained a certified copy of the judgment and decree. They say that only in June 2007, the contents of the ex parte decree came to their knowledge and that the delay of 10 years and 10 months has occurred in these circumstances and that delay ought to be condoned. 22. In Ext. R(g) counter affidavit filed by the Bank, all these allegations have been denied and the stefcs taken for service of notice on the defendants have been explained. It is stated that in the proceeding in O.A.No.23/1999, the defendants were represented by counsel. Further, it is also stated that when I.A.58/03 was filed seeking modification of the order, the only contention was that the petitioners had no notice in the suit. It is stated that in the proceeding in O.A.No.23/1999, the defendants were represented by counsel. Further, it is also stated that when I.A.58/03 was filed seeking modification of the order, the only contention was that the petitioners had no notice in the suit. According to the Bank, the petitioners were actively participating in the proceedings and had filed the petitions only when the proceedings before the Recovery Officer reached final stages. On these averments, describing the petitions experimental, the Bank sought its dismissal. 23. Ext. P5 is the common order that was passed by the Tribunal dismissing Exts. P2 and P3. In this order, after making reference to the Apex Court judgments dealing with the nature and legal effect of the circulars issued by Reserve Bank of India, the Tribunal held that the "petitioners cannot be heard to contend in a proceeding like this that since 1996, they were trying for settling the liability under OTS but the respondent/applicant bank was not agreeable for such settlement". Thereafter, examining the merits of the application and the steps taken by the Bank to serve summons on the petitioners, the Tribunal held thus: 12. The Sub Court, Thiruvananthapuram issued summons to the petitioners/ defendants I to 3 and 7 through Process Server on three occasions but such summons were returned unserved with the reports that petitioners I and 4/ defendants 1 and 7 were not functioning for a long time and found locked and that petitioners 2 and 3/defendants 2 and 3 were not available for service as they were in Bahrain/Gulf for a long time. Thereafter, the respondent / applicant bank filed I.A.356/1996 before the Sub Court, Thiruvananthapuram for permitting it to take out substituted service of summons on the petitioners/defendants I to 3 and 7 in the Mathrubhum daily and the same was allowed. Accordingly, the respondent/applicant bank published the summons to the petitioners/defendants I to 3 and 7 in the Mathrubhumi daily dated 02,08.1996. But they did not appear pursuant to such publication of summons. It appears that the other defendants though entered appearance remained ex parte subsequently. Thereafter the II Additional Sub Court, Thiruvananthapuram passed the ex parte judgment and decree dated 31.10.1996. 13. The petitioners/defendants I to 3 and 7 have no case that they never had addresses as shown in the suit. It appears that the other defendants though entered appearance remained ex parte subsequently. Thereafter the II Additional Sub Court, Thiruvananthapuram passed the ex parte judgment and decree dated 31.10.1996. 13. The petitioners/defendants I to 3 and 7 have no case that they never had addresses as shown in the suit. They have no case that they have informed the respondent/applicant bank of change of their address. As stated above, the respondent/applicant bank took out summons in O. S.No.816/ 1995 to the petitioners/ defendants I to 3 and 7 on several occasions but such summons were returned unserved. In the above circumstances the only course open to the respondent/applicant bank was to take out summons by substituted service. As stated above, the Sub Court, Thiruvananthapuram allowed substituted service of summons on them by publication and accordingly the respondent/applicant bank published the summons to them in the Mathrubhumi daily. According to learned counsel for petitioners/ defendants I to 3 and 7, the Mathrubhumi daily was not available in Bahrain and, therefore, petitioners 2 and 3/defendants 2 and 3 could not read the publication of summons in such daily. The Hon'ble Supreme Court in Sunil Poddar v. Union Bank of India, (2008) 2 SCC 326 ] : 2008 ICO 11877, has held that service of summons by publication in newspaper is effective even if the defendant was not a subscriber or reader of the said newspaper. The decision reads thus: "It is immaterial whether the appellants were subscribers of the said newspaper and whether they were reading it. Once a summons is published in a newspaper having wide circulation in the locality, it does not lie in the mouth of the person sought to be served that he was not aware of such publication as he was not reading the said newspaper." In view of the aforesaid decision of the Hon'ble Supreme Court there is no merit in the case of petitioners/defendants 1 to 3 and 7 that they were not served with summons in the suit. As stated above, they filed vakalath in OA K-23/1999 long back in the year 1999 or 2000. They also filed counter or objection in IA Nos.58/2003 and 2277/2004 long back in June 2004 and March 2005. Under these circumstances, their case that they were not served with notice in the aforesaid IAs cannot be accepted at all. As stated above, they filed vakalath in OA K-23/1999 long back in the year 1999 or 2000. They also filed counter or objection in IA Nos.58/2003 and 2277/2004 long back in June 2004 and March 2005. Under these circumstances, their case that they were not served with notice in the aforesaid IAs cannot be accepted at all. There is nothing to indicate that the 2nd petitioner/ 2nd defendant was prevented by any court in Bahrain from coming to India as claimed by him. In this connection it may be noted that he has not even disclosed the date of the order or even the name of the court. Under these circumstances there is no merit in the above IAs and they are liable to be dismissed. In view of what is borne out by the records and discussed earlier I am of the view that the petitioners/defendants I to 3 and 7 have filed the above IAs suppressing material facts and putting forth falsehood and as an abuse of the process of this Tribunal and hence they are liable to pay costs to the respondent/applicant bank. In the circumstances, it may not be unreasonable if I direct them to pay costs of Rs. 10,000/- to the respondent/ applicant bank." These findings were upheld by the DRAT by dismissing the appeals filed against Ext.P5 order. 24. I shall now examine the legality of the order rejecting the application for condonation of delay. It is an undeniable fact that there occurred a delay of 10 years and 10 months in making the application to set aside the ex parte decree passed by the Sub Court. This can lead a layman to think that the petitioners could have made the application earlier, But then, what this Court is concerned is whether, in the light of the legal principles noticed above, the Tribunals were right in dismissing the petition. 25. In this case, there is no material at all to conclude that the petitioners delayed the application for condonation of delay with any mala fide motive. On the other hand, there could not have been any such motive because delay only increases their liability and therefore, it was always in their own interest to get the decree set aside at the earliest. On the other hand, there could not have been any such motive because delay only increases their liability and therefore, it was always in their own interest to get the decree set aside at the earliest. This makes the case of the first petitioner that on account of the restraint orders passed by the Bahrain Courts he could not leave that country and hence could not apply earlier and that therefore, the delay has occurred, a plausible explanation. If the prejudice that is likely to be caused to the Bank is considered, there also, I am satisfied that an order condoning delay would not be prejudicial to it because the Bank is fully compensated by interest for the whole period. Further no third party rights would be affected if delay is condoned. That apart, as against the principal amount of Rs. 45,43,376/-, petitioners have already paid Rs. 1.5 crores to the Bank on 3.4.2008 and the collateral security furnished is available to be proceeded against. Therefore, the Tribunal should have condoned the delay as prayed for. 26. In the impugned order, the Tribunal has held that the petitioners cannot be heard to contend that they were trying to settle the liability under OTS. A reading of Ext.PS order shows that this conclusion has been arrived at by referring to some of the judgments of the Apex Court. In other words, according to Tribunal, in view of the principles laid down by the Apex Court in the judgments referred to in Ext.P5 order, this contention of the petitioners is legally untenable. 27. In my opinion, this view taken by the Tribunal is fallacious and is untenable. While dealing with an application for condonation of delay, the Tribunal is not called upon to 40 adjudicate upon the rights of the parties or pronounce upon the merits of the lis, although, the Tribunal cannot be oblivious of the merits of the case for the purpose of finding out whether a meritorious cause is lost on account of delay alone. Instead of confining itself to this limit, the Tribunal has pronounced finally upon the contention of the petitioners, which it could not have done, within the scope of the enquiry that it was conducting. Therefore, in reaching the aforesaid conclusion, the Tribunal has exceeded its powers, rendering the order unsustainable. 28. In the first part of Ext. Instead of confining itself to this limit, the Tribunal has pronounced finally upon the contention of the petitioners, which it could not have done, within the scope of the enquiry that it was conducting. Therefore, in reaching the aforesaid conclusion, the Tribunal has exceeded its powers, rendering the order unsustainable. 28. In the first part of Ext. P5 order, the Tribunal has explained, nay justified, the ex parte decree and judgment dated 31.10.1996 passed by the Sub Court, Trivandrum. In order to verify the correctness of the factual aspects, this Court summoned the records of the suit and the proceedings before the Tribunal. The records of the case show that as rightly found by the Tribunal, summons was sent to the petitioners thrice and were returned with the endorsement of the process server that the petitioners were in Bahrain for a long time. Thereupon, the Bank filed I.A.356/96 for an order under Order 5, Rule 20 of the Civil Procedure Code, permitting it take out summons by substituted service. In this context, the averments in the affidavit filed in support of I.A.356/96 are relevant and therefore, are extracted below for reference: "1 I. am the Senior Manager of the Ernakulcm branch of the Plaintiff Bank. I am acquainted with the facts sworn to in this affidavit. 2. The suit is instituted against the Defendants for recovery of money due from them to the Plaintiff. 3. Summons to the defendants I to 3 and 7 were taken out in the address furnished by him to the Bank. However the summons taken out of the Defendants 1 to 3 and 7 returned unserved. Inspite of summons being taken out to the Defendants 1 to 3 and 7 for more than two times, the summons could not be served on the Defendants I to 3 and 7 in the address furnished by him to the Bank. 4. In such circumstances it is respectfully submitted that summons could not be served on the Defendants 1 to 3 and 7 in the ordinary way. It is therefore respectfully prayed that this Hon'ble Court be pleased to order substituted service of summons to the Defendants 1 to 3 and 7 by advertisement in the Malayalam News Paper 'Mathrubhoomi Daily' having circulation in the locality in which the Defendants I to 3 and 7 is last known to have actually and voluntarily resided. Hence the accompanying petition. Hence the accompanying petition. The facts stated above are true." 29. I have extracted the affidavit for the purpose of examining whether, in this case, the requirements of Order 5, Rule 20 were satisfied to pass an order for substituted service. Necessarily, to answer this question, I should also refer to the provisions of Order 5, Rule 20 of the Civil Procedure Code, and therefore, the said provision is extracted for easy reference: Substituted service-(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot the served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. (I A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. (2) Effect of substituted service- Service substituted by order of the Court shall be as effectual as if it has been made on the defendant personally. (3) Where service substituted, time for appearance to be fixed- Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require." 30. If this provision is examined closely, it can be seen that substituted service is not to be allowed on the mere asking of it and is to be allowed only if the requirements of the Rule are satisfied. The requirements to be satisfied are that the court should be satisfied that there is reason to believe that for the purpose of avoiding service, the defendant is keeping out of its way or that for any other reason, the defendant cannot be served in the ordinary way. Only if these requirements are satisfied, the court is empowered to order that summons be served on the defendant by advertisement in a newspaper. Only if these requirements are satisfied, the court is empowered to order that summons be served on the defendant by advertisement in a newspaper. Further, if such service is to be valid, in view of Rule (I A), the newspaper shall be a daily newspaper circulating in the locality, where, the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. If substituted service is effected as above, in view of sub rule (2), such substituted service shall be as effective as if it had been made on the defendant personally. In this context, I shall refer to two judgments relied on by the counsel for the Bank. In the first one, referring to the provisions of Order 5, Rule 20 of the Civil Procedure Code, the Madhya Pradesh High Court held in Rameshchandra Rathore v. Union Bank of India, [ 2001 (1) CCC 42 ], that once summons is served by way of publication, it will then be deemed to be a service on the defendant and that law presumes knowledge on the part of the defendant. Similarly, in R. Ramachandran v. G Hariharan, [ 2001 (2) MLJ 417 ] : 2001 ICO 7510, the Madras High Court has also upheld the validity of substituted service by newspaper publication. Although the above legal position is unassailable, the question to be considered in this case is whether the requirements of law are satisfied. 31. Order 5, Rule 20 of the Civil Procedure Code enabling service of summons on the defendant by substituted service cannot either be the rule or a short cut for the parties and courts to avoid service of summons in the manner laid down. On the other hand, this enabling provision is to be resorted to only in exceptional circumstances and that too, only when the requirements specified in the rules are satisfied in all respects. In this context, it is apposite to refer to the Apex Court judgment in Smt. Yallawwa v. Smt. Shantawa, [ AIR 1997 SC 35 ]: 1996 ICO 1189, where, the Court faulted an order holding that; "in the present case, it appears that almost automatically the procedure of substituted service was resorted to". 32. In this context, it is apposite to refer to the Apex Court judgment in Smt. Yallawwa v. Smt. Shantawa, [ AIR 1997 SC 35 ]: 1996 ICO 1189, where, the Court faulted an order holding that; "in the present case, it appears that almost automatically the procedure of substituted service was resorted to". 32. Some of the general principles that are laid down by courts regulating the exercise of power under Order 5, Rule 20 are; (1) that before ordering substituted service the court should be satisfied that the conditions on which alone it can be ordered exist, viz., that the defendant is keeping out of the way to avoid service or that for any other reason, service cannot be effected in the ordinary way, (2) that the satisfaction of the court contemplated by this rule is an objective satisfaction and material must exist on the record to justify the conclusion, (3) that the court must record in writing its satisfaction about the 42 defendant's evasion of service or why service cannot be effected in the ordinary way, (4) that mere statement of the plaintiff that he cannot ascertain the address of defendant, without proof of reasonable efforts to find out his whereabouts is not enough to enable the court to pass an order for substituted service, (5) that where the court has ordered service of notice by publication, the newspaper must be a daily newspaper circulating in the locality in which the defendant is last known to have resided, carried on business or personally worked for gain, (6) that it is for the plaintiff to prove that the newspaper was in daily circulation in the locality where the defendant was last known to have resided or carried on business or worked for gain, (7) that substituted service through publication in newspaper can be effective only if there is every reasonable chance of the notice coming to the knowledge of the person concerned and this is possible only if the newspaper concerned has such circulation that in the normal course it would reach the defendant in time, (8) that an order for substituted service should be passed as a last resort when there is no possibility of effecting service on the defendant by other means provided in the order and (9) that if publication has been validly effected, it is no answer for the defendant to contend that he does not subscribe or read the newspaper concerned. 33. The case records would show that summons issued to the petitioners were returned unserved on three occasions with the report of the Process Server that the petitioners were not available for service as they were in Bahrain for a long time. This is recorded in paragraph 12 of Ext.P5 common order of the Tribunal also. It was thereupon that the Bank filed I.A.356/96 seeking to permit it to take out summons by substituted service by publication in Mathrubhumi Daily. The order sheet of the trial court shows that on I.A.No.356/96, it passed order dated 09.07.1996, which reads thus: "For publication and publish against D 1, D2, D7 and W.S. of D3 to D5. 12.9.96." Accordingly summons was published in the Mathrubhumi Daily dated 2.8.1996. On 12.09.1996, another order was passed, which reads thus; "Publication produced. D 1, D2, D3 and D7 absent, ex parte, W.S. D4 and D5" 34. The affidavit filed in support of the IA. (supra) shows that there is not even an averment that any effort was taken by the Bank to serve summons on the defendants directly and that it failed. There is also no averment that despite its efforts, the Bank could not trace out the Bahrain address of the defendants. There is also no plea that the defendants were keeping out of the way of the court or that service was not possible for any such reason. There is also not even a claim that Mathrubumi Daily suggested by the Bank and accepted by the court was having any circulation in Bahrain, where the defendants were reported to be residing or that, if published in this newspaper, it would in the normal course reach the defendants. For these reasons, the affidavit filed by the plaintiff Bank did not satisfy the legal requirements for a valid order for substituted service of summons, as provided under Order 5, Rule 20 of the Civil Procedure Code. 35. The orders passed by the Sub Court are equally untenable. Reading of these orders show that these were passed without any application of mind. These orders do not even reflect the required mandatory satisfaction of the court regarding the existence and compliance of the statutory conditions for passing an order under Order 5, Rule 20 . 35. The orders passed by the Sub Court are equally untenable. Reading of these orders show that these were passed without any application of mind. These orders do not even reflect the required mandatory satisfaction of the court regarding the existence and compliance of the statutory conditions for passing an order under Order 5, Rule 20 . Further if the order dated 9.7.1996, is taken as the order allowing substituted service, that order does not include the third defendant, who is the 2nd petitioner herein. Suffice it to conclude that the plaintiff did not make out a case for an order under Order 5, Rule 20 and the trial court, without any application of mind and illegally, passed orders dated 43 9.7.1996 and 12.9.1996 on 1.A.No.356/96. Regrettably, both the Tribunal and the Appellate Tribunal lost sight of these vital aspects while passing the impugned orders. 36. Yet another contention that was pressed into service by the counsel for the Bank was that, at any rate, the firm, first defendant in the suit, cannot argue that it was set ex parte without proper service of summons. Relying on the provisions of Rule 3 Order 30 of Civil Procedure Code, counsel contended that since, by substituted service, summons was served on the partners of the first defendant firm, that should be deemed to be service on the firm also. In support of this plea, counsel for the Bank relied on Goidhandas Kalyaniji Bhat v. Gautamchand Rupchand, [AIR 1925 Bom 331], where it was held thus: "Order 30, Rule 3, provides for the service of the summons in cases where suit is filed against a partnership firm in the firm' s name. The service may be effected upon any one or more of the partners, or at the principal place at which the partnership business is carried on within British India upon any person having, at the time of service, the control or management of the partnership business there; and it is provided that such service should be deemed good service upon the firm so sued, whether all or any of the partners are within or without British India. Then, there is a proviso that in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within British India whom it is sought to be made liable. The said rule, to my mind, is quite clear and capable of only one construction, namely, that where a suit is, under Order 30, Rule 1, properly filed against a partnership firm in the firm' s name, service on any one or more of the partners or on the manager shall be deemed good service upon the firm." 37. This contention was answered by the Senior counsel for the petitioners by referring to Ajit Kaunar Shaha v. Mritunjoy Kundu and Others, [AIR 1925 Cal 1136], International Continental Caoutchoue Compagnic v. Mehta & Co., [AIR 1927 Cal 758], and M/s.Sitaram Ramavtar v. M/s.Lohiya Mturalither Meghraj, [ AIR 1975 Raj 121 ], where it has been held that Order 30 Rule 3 has application only if the suit is brought in the name of the firm, and that summons has been served on partners after obtaining directions from the Court. 38. The absence of directions from the court required under Order 30 was answered by the counsel for the Bank relying on the Division Bench judgment of this Court in Mohammadali Kunju Ahammed Kunjuv. Abraham George [1953 KLT 104]: 1952 ICO 256, where such a defect was held to be a curable irregularity under section 99 of the Civil Procedure Code. 39. Although the principles laid down in the judgments relied on by both sides are not open to doubt, in this case, a detailed discussion on the rival contentions is unnecessary because a Division Bench of this Court had occasion to consider the provisions of Order 30 of the Civil Procedure Code in Achamnia George v. Trio Packaging Co., [1993 (1) KLT 868], and it was held thus: "Order 30, Rule 3 only provides for the service on the firm by serving that notice upon any one or more of the partners" The judgments in Gordhandas Kalvanji Bhat v. Gautanchand Rupchand, [AIR 1925 Born 331], and Ajit Kumar Shaha v. Mritunjoy Kundu & Others, [AIR 1925 Cal 1136], also support this principle. The counsel for the Bank did not even argue that the summons allegedly served on the partners was that issued to the firm. Further, the suit was not filed merely in the name of the firm and decree was also not Basheer M.Picha Anr. v. Indian Bank, (Antony Dominic, J. 44 sought or granted against the firm alone. For these reasons, the provisions of Order 30 of Civil Procedure Code cannot be invoked by the Bank. 40. There are some other issues which are also equally disturbing. In this case, the Bank claimed and the Sub Court as well as the Tribunals have readily allowed interest @ 23.25% with quarterly rest. The rate of interest is always determined by the terms of the contract between the parties. It has been judicially recognised that in agreements with Banks, borrowers sign on dotted lines/without realising the consequences and leaving most of the relevant columns blank (see paragraph 55 of Central Bank of India v. Ravindra and Others, [ 2002 (1) SCC 367 ] : 2001 ICO 1296, and this case is no exception. In this case, Ext.R(p), the Sanction Ticket dated 21.10.1991, alone contains a provision regarding the rate of interest payable and what is stated therein is : "commission & interest payable as per RBI rules" Ext. P 1 judgment of the Sub Court shows that on behalf of the Bank, Exts. A I to A79 documents were marked in evidence and that the sanction ticket is Ext.A 1. It is also noticed that no oral evidence was tendered by the Bank. The Bank did not produce any document indicating that either on the date when the Guarantee was sanctioned or on the date of its invocation, the rate of interest specified by the RBI was 23.25% with quarterly rest. In fact, it was in the counter affidavit in I.A.No.1473/2013, that the Bank has stated that as per Ext. Rl (q) circular dated 16.05.1995, as on 05.09.1995 when the suit was filed, interest chargeable was 23.25% with quarterly rest. It was in spite of it, the Sub Court blindly granted interest at the rate claimed. 41. Another important aspect is the legality of the decree granting interest @23.25%with quarterly rest pendente lite and for the post decree period, which should be governed by the provisions of Section 34 of the Civil Procedure Code. It was in spite of it, the Sub Court blindly granted interest at the rate claimed. 41. Another important aspect is the legality of the decree granting interest @23.25%with quarterly rest pendente lite and for the post decree period, which should be governed by the provisions of Section 34 of the Civil Procedure Code. The scope of this provision has been examined by the Apex Court on several occasions and I shall refer to few of those judgments. 42. Central Bank of India v. Ravindra and Others, ( 2002 (1) SCC 367 ), is a case where the Apex Court upheld legality of interest capitalization, but however, in so far as interest pendente lite and for the post decree period is concerned, in paragraph 55(8) of the judgment, the Apex Court held thus; "(8) Award of interest pendente lite and post-decree is discretionary with the court as it is essentially governed by Section 34 Civil Procedure Code dehors the contract between the parties. In a given case if the court finds that in the principal sung adjudged on the date of the suit the component of interest is disproportionate with the component of the principal sum actually advanced the court may exercise its discretion in awarding interest pendente lite and post-decree interest at a lower rate or may even decline awarding such interest. The discretion shall be exercised fairly, judiciously and for reasons and not in an arbitrary or fanciful manner." 43. CK Sasankan v. Dhanalakshmi Bank Limited, ( 2009 (11) SCC 60 ):2009 ICO 1006,is a case which is comparable on facts. In this case, the Bank had granted an overdraft facility of Rs. 9 lakhs in 1980 and when default was committed, the Bank filed suit in 1991, which was later transferred to the DRT, Chennai. The DRT by judgment dated 10.08.2001 declared that the debt due to the Bank is Rs. 28,50,707.03 together with interest @ 25% with quarterly rests from the date of filing the suit till the date of judgment and with simple interest @ 19.4% for the period thereafter. This order was upheld by the Appellate Tribunal and the High Court of Madras in a writ petition. 28,50,707.03 together with interest @ 25% with quarterly rests from the date of filing the suit till the date of judgment and with simple interest @ 19.4% for the period thereafter. This order was upheld by the Appellate Tribunal and the High Court of Madras in a writ petition. In an appeal filed by the defaulter's legal representative, the Apex Court held that the entitlement of the Bank for interest shall I be under Section 34 Civil Procedure Code and reduced the interest awarded pen-dente lite and future interest to 9% on the basis that it was found to be just, proper and reasonable. 44. The principles adopted by the Court stated in paragraphs 12 to 14 of the judgment, reads thus: "12. According to the provisions of Section 34 of the Code interest is to be awarded at a reasonable rate and on the principal amount. It is needless to point out that although the amount of interest from the date of filing of the suit till the date of the decree and thereafter till realisation is in the discretion of the court as is con-firmed by the use of the word "may" but, such a discretion has to be exercised by the court properly, reason-ably and on sound legal principles and not arbitrarily and while doing so the court is also to consider the parameters, scope and ambit of Section 34 of the Code. 13. The aforesaid scope and ambit of Section 34 of the Code has been the subject of discussion in many cases of this Court. 14. We are inclined to refer to the decision in Clariant International Ltd. v. Securities, & Ezphange Board of' India where it was held by this Court that the interest can be awarded in terms of an agreement or statutory provisions and it can also be awarded by reason of us-age or trade having the force of law or on equitable considerations but the same cannot be awarded by way of damages except in cases where money due is wrong-fully withheld and there are equitable grounds there-for, for which a written demand is mandatory. It was further held that in the absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate and such interest is payable upon establishment of totality of circumstances justifying exercise of such equitable jurisdiction. It was further held that in the absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate and such interest is payable upon establishment of totality of circumstances justifying exercise of such equitable jurisdiction. It was also held that in ascertaining the rate of interest the courts of law can take judicial notice of both inflation as also a fall in the bank rate of interest. The bank rate of interest both for commercial purposes and other purposes has been the subject-matter of statutory provisions as also the judge-made laws. In the said case reference was made to the decisions in Kaushnunra Begunr v. New India Assurance Co. Ltd., H.S. Ahammed Hussain v. Irian Ahammed, and United India Insurance Co. Ltd. v. Patricia Jean Mahajan, and it was observed that even in cases of victims of motor vehicle accidents, the courts have upon taking note of the fall in the rate of interest held 9% interest to be reason-able. Direction to pay such a rate of interest is also found to be reasonable and fair as the plaintiff was deprived to utilise and roll its money in commercial transaction and kept out of it due to wrongful withholding of the same by the defendant". 45. Similar is the judgment in Ranrpur Fertiliser Ltd. v. Vigyan Chemicals Industries ( 2009 (12) SCC 324 ) : 2009 ICO 1096, where refer-ring to Section 34 Civil Procedure Code and the judgments in Clariant International Ltd. v. Securities & Exchange Board of India, ( 2004 (8) SCC 524 ) : 2004 ICO 198 and United India Insurance Co. Ltd. & Others v. Patricia Jean Malraian & Others, ( 2002 (6) SCC 281 ):2002 ICO 413, the Apex Court held that the High Court was not justified in granting interest @ 18% per annum and directed that pendent elite and future interest @9% shall be paid. 46. Punjab and Sind Bank v. Allied Beverage Company Private Limited & Others, ( 2010 (10) SCC 640 ), is yet another judgment that is relevant. In this case credit facilities were availed by the company and when default was committed, the Bank filed OA before the DRT which was allowed with interest pendent elite and future interest. Company filed appeal to the Tribunal and on it's dismissal, a writ petition was filed before the Delhi High Court. In this case credit facilities were availed by the company and when default was committed, the Bank filed OA before the DRT which was allowed with interest pendent elite and future interest. Company filed appeal to the Tribunal and on it's dismissal, a writ petition was filed before the Delhi High Court. The High Court disposed of the case modifying the rate of interest. Challenging the High Court judgment, both parties filed appeals to the Apex Court. In it's judgment, the Apex Court framed the following questions for consideration; "(i) Whether the High Court is justified in reducing the interest @ 18% p.a. with monthly rests to 14% p.a. with 12 monthly rests without appreciating the contractual rate of interest. (ii) Whether the High Court has power and jurisdiction under Section 34 of the Code of Civil Procedure , 1908 (hereinafter referred to as "CPC") to change the periodicity of the payment of interest as has been done in the present case, wherein as per the original judgment and decree dated 9-6-2005 passed by DRT, the interest was payable at 18% p.a. with monthly rests, whereas the Division Bench of the High Court has reduced the rate of interest from 18% p.a. to 14% p.a. with 12 monthly rests. (iii) Whether the claim of the Company for further reduction of the rate of interest to the extent of 12% p.a. is feasible and acceptable. 47. Referring to Section 34 Civil Procedure Code and the principles laid down in Central Bank of India v. Ravindra and Others, [ 2002 (1) SCC 367 ], the High Court judgment reducing interest was confirmed with a further modification that the interest to be paid shall be simple interest. The relevant paragraphs of the judgment reads thus; "20 ...............................................Even other- wise, considering factual aspects, even the Company agreed for settlement but it was not successful due to financial difficulties and all other circumstances, we feel that the High Court has fairly neutralised the claim of the Bank as well as the sufferings of the Company and passed a workable order by reducing the rate of interest to 14% p.a., which would be simple interest, in respect of period pendente lite and future interest with effect from 4-7-2003, the day on which the Bank filed an application before DRT. Though request was made by the Company for further reduction up to 12% p.a., since it was a commercial transaction and the Bank being a nationalised bank, we are not inclined to accede to their request. 21. The approach and the course adopted by the High Court is acceptable and we are not inclined to either enhance the rate of interest as claimed by the Bank or order further reduction as requested by the Company. Consequently, both the appeals are dismissed with no order as to costs." 48. The decree of the Sub Court allowing interest @ 23.25% with quarterly rest pendente lite and for the post decree period shows that there is no discussion or consideration of any of the relevant legal principles and that the discretion conferred on the court under Section 34 of the Civil Procedure Code has not been exercised. Thus there has been total violation of all legal principles, including Section 34 of Civil Procedure Code itself and instead, the Court blindly allowed interest as claimed. Such a decree granting interest is illegal. 49. However, counsel for the Bank made an attempt to tide over this difficult situation by contending that capitalisation of interest is legally permissible and that since interest and its rate are matters of contract voluntarily entered into by the parties, courts cannot alter the same. To buttress this contention, counsel relied on the Apex Court judgments in State Bank of India v. Yasangi Venkateswara Rao, [ 1999 (2) SCC 375 ] : 1999 ICO 45, Central Bank of India v. Ravindra and Others, [ 2002 (1) SCC 367 ]; Syndicate Bank v. R. Veeranna, [ (2003) 2 SCC 15 ] : 2002 ICO 759, and Deepa Bhargava v. Maheslr Bhargava, [ (2009) 2 SCC 294 ] : 2008 ICO 11645, Having considered the judgments relied on, while I should concede that the legal principles laid down therein are unquestionable, it should not be forgotten that in these judgments the Apex Court did not lay down any principle that courts are not bound by Section 34 of Civil Procedure Code. Therefore, while understanding the principles laid down in the judgments relied on by the Bank, this court is bound to take into account Section 34 of the Civil Procedure Code also and the principles laid down should be understood subject to Section 34 of the Civil Procedure Code. Therefore, while understanding the principles laid down in the judgments relied on by the Bank, this court is bound to take into account Section 34 of the Civil Procedure Code also and the principles laid down should be understood subject to Section 34 of the Civil Procedure Code. Therefore, irrespective of these judgments, if a decree has been rendered ignoring the mandate of Section 34 of Civil Procedure Code, such a decree would be illegal and liable to be set aside. 50. Another contention raised by the counsel for the Bank was that no order affecting the right of the Bank to proceed against the mortgaged property can be passed in this petition because the Company which mortgaged the property and which is a party to the suit and the proceedings before the DRT and the Appellate Tribunal, is neither a petitioner in this writ petition nor has questioned the orders passed by the Tribunals. According to him, this shows that the Company has accepted the decree and the orders passed by the Tribunals and therefore, irrespective of the outcome of this case, the Bank should have the liberty to realise it's dues from the mortgaged property. 51. 1 have considered this submission also and in my view, though this argument would sound appealing, a closer probe would prove it otherwise. It is true that the company has offered it's property as security for the facility availed by the firm and throughout the proceedings nobody has disputed this fact. Even if the mortgage is subsisting, the Bank will get right to proceed against the mortgaged property if the debt is proved and a valid decree is obtained by it. In a dispute regarding the debt claimed by the Bank, the company cannot have any role. Therefore in a suit or other proceeding, where the dispute is regarding the legality of the debt or the decree obtained by the Bank is the issue, even if the company is not a party, it cannot be said that the proceeding is defective for non joinder of a necessary party. 52. My findings on the issues discussed above would certainly justify an order setting aside the impugned orders of the Tribunals and also the ex parse decree passed by the Sub Court. 52. My findings on the issues discussed above would certainly justify an order setting aside the impugned orders of the Tribunals and also the ex parse decree passed by the Sub Court. However, this court cannot be oblivious of the fact that the whole dispute arose out a Mobilisation Guarantee availed in 1991 and a Suit filed in 1995 and that despite the passage of almost three decades, the dispute is still not resolved. Therefore, I feel that it will be in the interest of all parties to give an early quietus to the controversy. 53. This is a petition filed under Article 227 of the Constitution of India and the extent and limits of the power of this Court has been explained by the Apex Court in various judgments and I shall refer to some of those judgments. In State through Special Cell, New Delhi v. Navjot Sandhu alias Afshan Guru & Others, [ (2003) 6 SCC 641 ] : 2003 ICO 770, it was held thus: "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of super-intendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisoryju-risdiction extends to keeping the-subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court it selfdoes not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of super- Intendence was not meant to circumvent statutory law. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of super- Intendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise". 54. This question was considered in detail in Surya Del, Rai v. Ram Chander Rai & Others, [ (2003) 6 SCC 675 ] : 2003 1CO 884, in which, the relevant principles laid down are; "38. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long- drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, i Not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not 40 convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari, the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. 39. 39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a strait jacket formula or rigid rules. Not less than often, the High Court would be faced with a dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where "a stitch in time would save nine". At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge". 55. These principles were again reiterated in Shalini Shyann Shetty v. Rajendra Shankar Patil, [ (2010) 8 SCC 329 ]:2010 ICO 855. 56. In this case, I am satisfied that in spite of my findings on the issues discussed above, this court should not invalidate the impugned proceedings in its totality and leave the parties to start their fight afresh and that instead should pass an order which will give a finality to the controversy itself. Before this Court also, petitioners did not argue that the principal amount of Rs. 58,07,134.05 claimed in the plaint was not due as on the date of filing of the suit. On the other hand, their grievance was mainly about the rate of interest that was claimed and granted. As far as the interest is concerned, the trial court had the discretionary power under Section 34 Civil Procedure Code to decide on the rate of interest to be awarded pendente lite and for the post decree period. Referring to the materials available on record, I have already concluded that this statutory power was not exercised by the Sub Court. As far as the interest is concerned, the trial court had the discretionary power under Section 34 Civil Procedure Code to decide on the rate of interest to be awarded pendente lite and for the post decree period. Referring to the materials available on record, I have already concluded that this statutory power was not exercised by the Sub Court. The Tribunals also have lost sight of this vital aspect while dealing the applications and the appeals filed by the petitioners. As a result of this failure to discharge the statutory duty, which is a patent illegality, the liability of the petitioners increased by crores. It is relying on such a decree, the Bank claimed before this court that inspite of Rs. 1.5 crores paid, more than Rs. 27 crores is still due and this unconscionable demand demonstrates the grave injustice and prejudice that was caused to the petitioners. 57. Therefore, as held by the Apex Court, this is a case where, as a result of the failure of the Sub Court the DRT and the DRAT to exercise it's jurisdiction under section 34 of the Civil Procedure Code, which it did have, grave injustice was caused to the petitioners, obliging this court to step in and undo the injustice. Further, the Apex Court judgements also lay down the principle that unlike in the case of a petition filed under Article 226 of the Constitution of India, while exercising powers under Article 227 of the Constitution of India, this court is not only entitled to invalidate the impugned proceedings but is also entitled to issue appropriate consequential directions. Otherwise, in so far as this case is concerned, it " would result in travesty of justice" and also "would result in prolonging of the lis" (vide paragraph 38 (7) of Surya Dev Rai (supra)). 58. In the plaint the Bank claimed interest (5)23.25% with quarterly rest. Except the Sanction Ticket, no other document produced before the Sub Court had any reference to the rate of interest payable by the petitioners. In the Sanction Ticket, it was only mentioned that interest payable is as per the RBI Rules. Therefore the court was completely in the dark about the applicable rate of interest, either on the day when the guarantee was sanctioned or on the date when default was committed or even on the date when the suit was filed. In the Sanction Ticket, it was only mentioned that interest payable is as per the RBI Rules. Therefore the court was completely in the dark about the applicable rate of interest, either on the day when the guarantee was sanctioned or on the date when default was committed or even on the date when the suit was filed. Further, the wording of the condition in the Sanction Ticket could give rise to an argument that the rate of interest is not fixed but is a floating one requiring to be proved by the Bank. It was ignoring all these; the Sub Court allowed 23.25% interest and that too with quarterly rest till date of realisation. In the circumstances, I have no doubt that the rate of interest allowed, is unconscionable and unjustifiable and cannot be sustained. 59. The petitioners have pleaded that during the period 1.11.1996 to 11.4.2007, the prevailing rates of interest were between 18.25 to 13.25% and this assertion is not effectively controverted by the Bank. The fact that after 1995, the interest rates underwent downward revisions is a matter which can be taken judicial notice of. This fact has to be taken note of while fixing the interest payable by the petitioners. On 5.9.1995, when the Bank filed O.S. No. 816 of 1995, undisputedly, the principal amount due was Rs. 58,07,134.05. This amount included interest @23.25% with quarterly rests till the date of suit. Once the entitlement of the Bank to recover this amount is upheld, the surviving question to be considered is what should be the rate of interest for the subsequent period. 60. As far as interest pendente lite and for the post decree period is concerned, considering the subsequent variations in the interest rates and also the prevailing rates, it would be unconscionable to award interest as prayed for and would be reasonable to award 15% simple interest on the principal amount of Rs. 58,07,134.05. Therefore, I direct the petitioners to pay simple interest at 15% percent per annum pendente lite and till realisation. The petitioners should also get the same rate of interest on Rs. 1.5 crores paid by them. The Bank shall quantify the up to date liability of the petitioners and from the amount payable, Rs. 58,07,134.05. Therefore, I direct the petitioners to pay simple interest at 15% percent per annum pendente lite and till realisation. The petitioners should also get the same rate of interest on Rs. 1.5 crores paid by them. The Bank shall quantify the up to date liability of the petitioners and from the amount payable, Rs. 1.5 crores together with simple interest at 15% thereon from 3.4.2008, when it was paid, shall be deducted and the balance shall be paid by the petitioners. I further direct that, within 4 weeks of receipt of a copy of this judgment, the Bank shall quantify the amount due as above and intimate the liability to the petitioners and on being intimated of the amount payable by them, the petitioners shall pay the amount due within six weeks thereafter. It is ordered that once payment is made as above and the liability is settled, the Bank shall, without any further delay, return to the person concerned the documents of title of the mortgaged properties. The decree and the final order passed by the DRT will stand modified to the above extent and in case amount is not paid as directed above, proceedings before the Recovery Officer will continue, subject to the directions herein regarding the interest payable. Original petition is disposed of as above. No costs.