w w w . L a w y e r S e r v i c e s . i n



The New Red Bank Tea Co. Pvt. Ltd. and Others V/S United Bank of India

    Appeal No. DRAT/CAL/A-8 and 9 of 2001

    Decided On, 27 February 2002

    At, Debt Recovery Appellate Tribunal At Kolkata

    By, THE HONORABLE JUSTICE: A.B. MUKHERJEE. (CHAIRMAN)

    For Petitioner: M.P. Rai, Advocate And For Respondents: B.N. Joshi and S.N. Patra, Advocates.



Judgment Text


1. Two appeals being 8 of 2001 and 9 of 2001 have been heard in analogous. The respondent United Bank of India filed claim cases against the present appellants of both the appeals for realisation of certain sum of money. The Appeal No. 8 of 2001 arose out of O. A. No. 194/1998 while Appeal No. 9 of 2001 arose out of O.A. No. 195/1998. The impugned order is dated 14.12.2000 being order No. 7 of the respective claim cases. The facts of the claim cases as appears from the applications made before the claim's Tribunal which were disposed of by the similar order were also the same. Identical order were passed in both cases.

2. The case of the appellants in both the matters are that they instituted suits before the High Court in the month of June, 1998. It is alleged that as a counterblast, the claim cases were filed against them on 28.8.1998 with inflated claims. There was an interim order of the stay of the claim case which was vacated only on 5.12.2000 and the impugned order was passed on 14.12.2000 without giving any chance to the present appellant to file written objection against the prayer of the respondent Bank for an order of temporary injunction for appointment of receiver with regard of temporary injunction for appointment of receiver with regard to the Tea Estate belonging to the appellants. It is further alleged that on 14.12.2000, when the matter was called an application for adjournment was moved on the ground that due to the illness of the lawyer appointed by them, the had to engaged a lawyer at short notice and, as such, the latter is not in a position to prepare the written objection to get prepared for the case. But the said application was rejected on the ground that the petition for interim relief was pending for a long time. They have challenged this action on the part of the Presiding Officer taking into consideration that the proceeding was not delayed due to any move on the part of the appellants rather there was stay order by the High Court on suits against the respondent Bank filed earlier to the claim cases. Accordingly, they have prayed for setting aside, the said order with a view to get an opportunity to contest the claim of the respondent Bank.

3. The appeals are being resisted by the respondent Bank by filing written objection denying material allegations and supporting the impugned order. It is alleged by them that the appellants took dilatory tactics in order to delay, realisation of the unpaid loan and they were also trying to dispose of the property so as to defeat the claim of the Bank.

4. Both the appellants have been heard together and contrary to the steps taken by the Tribunal below in passing two verbatim orders in two appeals, one judgment shall govern both the appeals.

5. The learned Advocate appearing for the appellants has argued that the respondent Bank made the Section 19 application in August, 1998. But filed the application for appointment of Receiver and also for temporary injunction only on 10th of June, 1999. It is argued that in the event of urgency, such delay is fatal. On the other hand, this delay shows that there was no urgency at all. It is also argued that the proceeding in the Tribunal below has not been delayed due to any Act on the part of the appellants, but it was delayed due to the stay order issued by the High Court, which was vacated only on 5.12.2000. It is also argued that the appellants Counsel fell ill shortly before the date of impugned order when they immediately appointed another lawyer but the said lawyer wanted an adjournment to get himself ready which was refused. It is also appointed that the illness of the lawyer has not been disbelieved by the Tribunal below, but the adjournment petition has been rejected only on the ground that the application for interim relief was pending for a long time. The learned Advocate has also relied on certain decisions in support of his contention. It is stated in AIR 1977 Gujarat 206 that sudden illness of the Advocate is a good ground for adjourning a case. Reliance has also been placed on a decision reported in AIR 1984 Allahabad 14 in support of the contention that in the event of lawyer taking the plea of remaining busy in any Court, the matter ought not to have been heard ex parte because it would be putting a party to a great disadvantage. Reliance has also been placed on another decision reported in AIR 1984 Allahabad 16 where it is held that in the event of adjournment granted for last time, the fact of the Advocate concerned falling ill is a good ground for an adjournment granting an opportunity to contest the case. Reliance is placed on a decision reported in : AIR 1992 Delhi 197 where it is held that suppression of a material fact makes a suit liable for dismissal. Reliance has also been placed on a decision reported in : AIR 1990 MP 326 where it is stated that injunction is a discretionary and equitable relief and as such it can be refused in the event of delay in preferring an application. It is also argued that the appointment of receiver with the powers to look into books of account of the Tea Estate as has been done by the Tribunal below is against the spirit of the decision reported in AIR 1961 SC 1960.

6. The learned Advocate representing the respondent No. 1 Bank has however argued by stating that the impugned order has already been given effect to as much as the receiver has taken symbolical possession. He, however, admits that the claim case was filed subsequent to the filing of the suit by the appellants in the High Court. He also contends that application for interim relief which is the basis for the impugned order was made on 10.6.1999, about 10 months after filing of the claim case. It is his contention that the stay order was vacated by the High Court on 5.12.2000 and the impugned order was passed on 14.12.2000 and as such the appellants could easily file written objection in course of these nine days.

7. He has placed reliance on a decision reported in 1986(16) Company cases 180 in support of his contention that if a document is exhibited without any objection regarding mode of proof a party to the litigation cannot raise it later for the first time in an appeal. It is also argued on the basis of a decision reported in 1999(4) SC cases 10 that the Debts Recovery Tribunal has power to grant interim order and that also an ex parte order through for a limited period. At the same time, it is stated that it should be a reasoned order and not a stereotyped order as a matter of course.

8. Respondent Nos. 2 to 5, however, challenged the order passed by the Tribunal below and submitted that the claim case was even fixed for ex pane hearing without giving an opportunity to file written objections.

9. I have given my careful consideration to the submission of both sides. It is the admitted position that a suit was filed by the present appellant in the High Court against the respondent Bank. Claim cases were filed by the respondent Bank against the appellant some time thereafter, about 2 months from the date of filing of suit. The High Court passed an interim order staying the claim cases. There was no application for interim order passed simultaneously with filing of the claim case is as generally done but such an application was filed for temporary injunction as well as appointment of receiver after a lapse of about 10 months. The High Court vacated the said order on 5.12.2000 and on 14.12.2000, when the interim application were taken up for hearing, there was a prayer on behalf of the present appellants praying for an adjournment on the ground that they had to appoint a lawyer at a short notice due stand illness of their lawyer and as such the newly appointed lawyer requires some time to get prepared for the case. The course of action taken by the learned President Officer, at this stage cannot be upheld. To quote his language, "it appears that the petition for interim relief is lying pending for a long time and no objection has been filed by the defendants. On the other hand, the defendants had gone to Hon'ble Court in the meantime for staying this proceeding but ultimately the stay order has been vacated. In this view of the matter, the petition for adjournment is rejected. Parties are directed to get ready". The aforesaid observation of the learned Presiding Officer is against the facts of the cases. The appellant's suit is earlier than the claim case of the respondent Bank. Besides, filing of suit in the High Court and obtaining stay order cannot be a reason to refuse an adjournment which amounts to a penal measure. It further appears from the impugned order that the learned Lawyer appearing for the appellants when asked to argue the case submitted in the Tribunal below for granting him some time to take instruction from the client to which the learned Presiding Officer writes "that cannot be a ground for adjournment. So the petition for interim relief is heard". This action on the part of the learned Presiding Officer cannot also be supported. A lawyer cannot be debarred from taking instruction from his client especially in a case when such lawyer is appointed recently due to illness of erstwhile lawyer.

10. The remaining portion of the order deals with merit for granting injunction and appointment of receiver which has been the subject matter of much criticism by the learned Advocate for the appellants. At this stage, I do not propose to discuss the same since I find that the present appellants has not been given ay opportunity to contest the application for interim relief which was filed about 10 months after institutions of the claim case which by itself speaks a volume about urgency of the prayer. It is the cardinal principle of law that parties to a litigation should be given sufficient opportunity to place his case for trial. By any stretch of imagination, nine days cannot be a sufficient time for filing a written objection against two prayers like temporary injunction and appointment of receiver. Therefore, there was no other way but to set aside the impugned order since, it was passed without giving any opportunity to the appellants to contest. Another factor which also comes to my notice is that the learned Presiding Officer without giving any opportunity to the present appellants to file written objections regarding the claim case straightaway fixed the cases for ex parte hearing on the ground that they have not filed any written statement till date i.e. 14.12.2000. Obviously, when the matter was adjourned for more than three months to be heard ex parte there cannot be any reason for refusing an opportunity to file written statement.

11. However, it has been admitted by the learned Advocate for the appellants that the receiver has taken formal possession. This matter has not been further elucidated either by the learned Advocate for the appellant or by the learned Advocate for the respondent No. 1. However, this fact has not been challenged before me. Therefore, such formal possession shall continue. At the same time, there shall be some restriction on the part of the appellants to deal with the property mortgage/hypothecated to the Bank. Accordingly, it is :

ORDERED

That the appeals being Appeal Nos. 8 of 2001 and 9 of 2001 be allowed on contest but without any costs and the impugned order dated 14.12.2000 stands set aside. The appellants are however restrained to transfer or alienated the concerned property, otherwise than in ordinary course of business. They are also given the liberty to file written objection against the prayer for injunction and appointment of receiver in the Tribunal below within a period of four weeks from the date of receipt of the L.C.R. and copy of the judgment at the Tribunal. The learned Presiding Officer, in charge of the Debts Recovery Tribunal, Calcutta, (unless the permanent incumbent joins in the meantime) shall make an earnest effort to dispose of the application for temporary injunction and also appointment of receiver within a period of 8 (eight) weeks from the date of receipt of the L.C.R. by him. Be it mentioned that no averment of this order shall influence the learned Presiding Officer, who shall dispose of the petition on merit and the order to be passed by him shall have effect on the date of the same irrespective of the restriction imposed in course of the present order.

This judgment shall govern both the appeals namely Appeal Nos. 8 of 2001 and 9 of 2001.