Vikramajit Sen, CJ. (Oral):
1. The respondent-bank ICICI Bank Limited has initiated recovery proceedings before the Debt Recovery Tribunal, Karnataka (hereinafter referred to as 'DRT') against the appellant-defendant for a sum of Rs.6,97,92,197/-.
2. The extant practice in the DRT is for the reception of evidence, by way of affidavits, a procedure which is also contemplated by the Civil Procedure Code, 1908 consequent upon changes/amendments brought in 2002 for reasons which we need not go into. The DRT required the presence of PW1 for the purposes of cross-examination on 13.04.2010, and since the witness was not present, the evidence was closed and the matter was posted for arguments on 20.04.2012. Immediately thereupon, on 15.04.2010, ICICI bank filed an application for recalling the order dated 13.04.2010. The application was taken up on 20.04.2010, but as there was no appearance on behalf of ICICI, its application was dismissed and the case was adjourned to 25.05.2010 for arguments on the bank's claim. Inexplicably, even on 25.05.2010, the claimant-bank ICICI failed to appear., In the circumstances, it was open to the DRT to dismiss the claim because of non-appearance of the claimant and/or because of the failure of the claimant-bank to substantiate its case through evidence. The DRT however, though it appropriate to adjourn the proceedings to 01.06.2010, on which date, the claimant-bank was again absent. Once again the claim was not dismissed, but was posted to 01.07.2010. Once again on 01.07.2010, ICICI bank was absent and therefore, the matter was adjourned to 28.07.2010 for pronouncement of judgment. In this interregnum, on 02.07.2010, an application was filed by ICICI bank for recalling the order dated 01.07.2010, by which the matter was adjourned to 28.07.2010 for pronouncement of judgment. This was followed up by filing of two other applications on 12.07.2010, essentially for advancement of the case. These three applications appeared to have been posted on 13.07.2010, but were again dismissed because of the absence of ICICI Bank. This time around M.A,No.50/2010 was filed by ICICI on 23.07.2010 and emergent notice was issued. The Miscellaneous Appeal as well as some applications were dismissed on 09.09.2010 and the matter was fixed for arguments on 16.09.2010, on which date ICICI filed written arguments. Yet again, the matter was posted for orders on 12.10.2010 but four days prior i.e., on 08.10.2010, M.A.No.50/2010 came to be dismissed. It is in these circumstances, W.P.No.37226/2010 came to be filed, in which the impugned order has been passed.
3. Learned counsel for the appellant firstly relies on the application of the celebrated judgment inArjun Singh V/s. Mohindra Kumar (AIR 1964 SC 993)which has been applied by this court inRabiya Bi Kassim V/s. The Country Wide Consumer Financial Service Ltd. (ILR 2004 Kar. 2215),to contend that in the instant case, the judgment should have been pronounced forthwith by the DRT and all the applications preferred by ICICI Bank should not have been entertained after 01.07 2010 when the matter was adjourned to 28.07.2010 for judgment We are of the view that the learned Single Judge was justified in concluding that the aforesaid judgment did not preclude the court from entertaining an application even in the hiatus between the conclusion of arguments and the actual pronouncement of judgment.Arjun Singh'scase does not hold that the Court lacks power to entertain any application, if the court so chooses. The gravaman of the judgment is that none of the parties have a vested right to prefer an application once the lis is posted for judgment. It is also to be borne in mind that in the instant case the Presiding Officer had changed and therefore, the judgment could not be pronounced as per the schedule fixed. Once that situation comes about, the rigors of the law with regard to lack of presence of the party to file an application when the case has been adjourned for pronouncement disappears. This is what Order XVII of the CPC ordains. We are unable to find any observations inM/s. M.S.S. Food Products V/s. Rasiklal Manickchand Dhariwal & another (2012 (2j SCC 196)which makes observations contrary to urgency. Both are coordinate Benches and therefore; the normal rule is that the subsequent Bench would adhere to the views expressed by the previous Bench. All that appears to have been observed inRasiklal Manickchand'scase is that it is not incumbent or mandatory for the successor judge to hear arguments afresh. These observations were made in the backdrop of proceedings which were exparte and where the plaintiffs advocate had himself conceded that further arguments are not necessary. We may clarify that where a lis is proceeding exparte, the decision would invariably rest on the pleadings and the evidence let-in thereupon.
4. As observed by the learned Single Judge in the impugned order, the case is relegated to the position where the claimant-bank ICICI was required to produce PW1 for cross-examination. This being the position, no adverse effect has been foisted on the appellant. Of course, because of the wisdom of the Presiding Officer, the appellant has lost the advantage of arguing the case on the platform of there being no substantiating evidence on behalf of the claimant-Bank. It would not be sanguine for us to believe that the Presiding Officer did not in the interest of justice note that such a situation would be taken advantage of by the appellant herein.
5. It is also contended before us that the appellant had raised the objection of non-maintainability of the writ petition because of the existence of remedy by way of an appeal. There is no mention whatsoever of this argument in the impugned order. It is not unknown that several contentions or arguments or submissions are contained in the pleadings of the parties, but only some of them are actually ventilated. We cannot come to any conclus
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ion other than that the appellant had not raised the question of availability of an appeal before the learned Single Judge during the course of arguments. If the argument had actually been made and the impugned order nevertheless was totally silent on that argument, a review should have been filed before the learned Single Judge. This recourse has not taken. Therefore, we would not, in the appeal before us, find any infirmity with the impugned order only because of an argument raised for the first time before us. 6. Viewed in this dimension therefore, the decision of the learned Single Judge is unassailable. The appeal is, accordingly dismissed.