Arvind Aggarwal vs Punjab National Bank

Ranjit Singh, J

This appeal was listed for hearing on 2.7.2015. When the case was called, none appeared for the parties. Obviously, the absence of the Counsel was due to the strike call given by one Bar Association. In the afternoon of 30.6.2015, one Advocate had left a notice with the Registrar of this tribunal disclosing that the members of the Bar Association would be on indefinite strike w.e.f. 1.7.2015 This appeal, therefore, ought to have been dismissed in view of the law laid down by the Hon'ble Supreme Court. Still, in the interest of justice, the appeal was adjourned to 3.7.2015 by this Tribunal to assure itself that the absence of the Counsel/parties was not due to any reason other than strike.

On 3.7.2015, none appeared for the parties. This appeal accordingly came to be decided on 3.7.2015 and the order passed in this regard is as under:

"In the SA filed by the appellant, the Tribunal below, on 18th February, 2015, had restrained the respondent Bank from taking physical possession of the property in question as some investigation in regard to criminal case under Section 156, Cr.P.C. was in progress. This order was impugned by the Bank. The Miscellaneous Appeal No. 90 of 2015 filed by the Bank came up for hearing before this Tribunal on 2nd July, 2015. It was noticed that during the pendency of the said appeal, even the SA had been dismissed on 15th May, 2015 which order the appellant has impugned in the present appeal. While disposing of the said appeal, this Tribunal passed the following order--

"In the SA filed by respondent Mr. Arvind Aggarwal, the Tribunal below had restrained the Bank from taking possession of the property in question for four months on the ground that the some investigation in a criminal case under Section 156, Cr.P.C. was in progress. Aggrieved against the same, the appellant Punjab National Bank has filed this appeal.

Notice in this appeal was issued and reply has been filed on behalf of respondent Mr. Arvind Aggarwal, who has also filed a separate appeal (Inward No. 312 of 2015) to impugn the subsequent order dated May 15, 2015 passed by the Tribunal below dismissing the SA as well. Having passed the order on 18th February, 2015, the Tribunal below has passed order dated 15th May, 2015 observing that sufficient time of four months had been allowed to investigate the matter and if Mr. Arvind Aggarwal (appellant/respondent in these appeals) has any grievance then he should approach the Civil Court against the borrower. The SA has therefore been dismissed.

Mr. Arvind Aggarwal has impugned the order dated 15th May, 2015. The effect of this order would be that the appeal filed by the Bank is rendered infructuous, as now even SA has been dismissed on 15th May, 2015. Once the SA filed by Mr. Arvind Aggarwal, who is respondent in the appeal filed by the Bank, has been dismissed nothing would survive in this appeal filed by the Bank which was filed to challenge the interim order restraining the Bank to take possession. This appeal filed by the Bank is thus rendered infructuous and is disposed of as such.

A copy of this order be sent to the CMD of Punjab National Bank to ascertain why no one has appeared to represent the Bank when the appeal came up for hearing. It is for the Bank to ensure the presence of their Counsel when the cases are called.

While dismissing the SA, the Tribunal has formed a view that the appellant Mr. Arvind Aggarwal has to seek his remedy in regard to investigation before the Civil Court. The view apparently is justified. The Bank cannot be deprived of its legal right to proceed against the property for perpetuity or till completion of the investigation of the allegations made. Still, in the interest of justice, Appeal/Inward No. 312 of 2015 is adjourned to 3rd July, 2015 to wait for the presence of the Counsel for the appellant.'

Still, in the interest of justice, this appeal was adjourned to today to wait the presence of the Counsel as none had appeared on 2nd July, 2015. Since no one has chosen to appear today, this appeal is dismissed for non-prosecution.

Before the order could be signed, appellant Mr. Arvind Aggarwal has appeared and prayed for recall of the order on the ground that he was prevented by the lawyers from appearing and so could not appear when the case was called. Let him move an appropriate application for recall of the order as the order has been pronounced in the open Court.

From the facts as brought out, it is noticed that the lawyers are interfering with administration of justice by striking work and by preventing the parties to appear, Hon'ble Supreme Court has held that lawyer has no right to go on strike or give a call for boycott not even on a token strike (See Ex. Capt. Harish Uppal v. Union of India, (2003) 2 SCC 266). In Ramon Services Pvt. Ltd. v. Subhash Kapoor & Ors., Appeal (Civil) No. 6385 of 2000, decided on 14th November, 2000, the Apex Court has held that no leniency can be shown to the defaulting party. It is held that defaulting Courts may also be contributory to the contempt of the Apex Court.

A copy of this order be sent to respondent Punjab National Bank."

The appellant appeared in person and filed an application for recall of the order passed on 3.7.2015. In this application, the applicant had clearly averred that his Counsel could not appear due to ongoing strike and the appeal was dismissed in default. This application was supported by an affidavit filed by the appellant. Since the appellant had stated about the reasons of absence of his Counsel being on strike, the case was adjourned with the direction to the lawyer of the appellant to disclose reason for non-appearance to enable the Tribunal to assure itself that the absence of the Counsel was for the reasons as stated by the appellant in his affidavit. The appellant was also required to disclose complete details of the manner he was prevented from entering the Court room before he could force his way through as noticed in the order dated 3.7.2015.

The appellant has now filed an affidavit, but his Counsel is neither present nor has chosen to file affidavit to disclose reasons of his absence on 2nd and 3rd July, 2015. The appellant has now disclosed that on 2.7.2015 he along with his Counsel was waiting for his matter and due to strike suddenly many persons came into the corridor and prevented deponent and his Counsel from entering into the Court room. During his altercation, the appeal which was listed as item No. 5 was shown over at the display board. The appellant confirmed the next date of hearing from the Court staff when he learnt that the case was adjourned to 3.7.2015. The appellant has further disclosed that on 3.7.2015 he along with his Counsel came to DRAT but his Counsel was stopped by some unknown person from entering the Court room. The appellant alone could enter the Court room and appear, but by the time the appeal was dismissed for none prosecution.

In the absence of the Counsel, the affidavit filed by the appellant cannot be taken as reflecting the correct position for absence of Counsel. The Counsel for the appellant has not come forward to file any affidavit or to disclose the fact that he was prevented by others from entering the Court room. The appellant has deposed that he and his Counsel were stopped by some unknown lawyers. If the Advocate of the appellant was indeed so stopped them he could have easily come forward to disclose the names of such Advocate. These Advocates may be unknown to the appellant, but his lawyer can be expected to know these Advocates. If the appellant could appear on 3rd July, 2015, the Advocate could easily have made his way through if he was present outside the Court room. The appellant and his Counsel obviously have made an attempt to withhold the information available with then and thus have not helped the cause of justice. In the application the appellant had stated that the Counsel has not appeared due to strike. He did not even state on 3.7.2015 that his Counsel was present outside while stating that he was prevented from appearing. The present stand appears to be an afterthought.

Once the appeal has been dismissed for non-prosecution due to absence of lawyer who apparently did not appear due to strike call, it may not be possible for this Tribunal to restore the appeal. In this regard, reference may be made to a detailed order dated 9.7.2015 passed by this Tribunal in Miscellaneous Case No. 538/2015 titled as Smt. Neelam Nagpal & Anr. v. Syndicate Bank & Ors., holding that in the eventuality of Counsel not appearing before the Tribunal due to strike then no case for recall is not made out.

Following the said precedent, the present application for recall of the order dismissing this appeal for non-prosecution is dismissed. Even otherwise, nothing much would remain to be decided in this appeal as can be noticed from the order dated 3.7.2015.

The present application filed by the appellant is accordingly dismissed.