Biranjan Panda and Another vs Bank of India and Others

B.S. Chauhan, C.J.—This writ petition has been filed challenging the order dated 8-4-2008 by which the adjournment sought by the petitioners before the Debts Recovery Tribunal, Cuttack (herein after called the Tribunal'') has been refused, and as the counsel who appeared for advancing the petitioners'' application for adjournment refused to argue the case on merit, the Original Application has been dismissed for default.

The facts and circumstances giving rise to this case are that both the petitioners had incurred a loan to the tune of Rs. 10 lakhs each from the opposite parties - bank by mortgaging their immovable properties with the bank. As the instalments of the loan amount had not been paid by both the petitioners, the bank initiated proceedings u/s 13(2) of the Securitisation and Reconstruction of the Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the "Act"). After completing the proceedings the bank advertised sale notices in daily newspapers u/s 13(4) of the Act. In respect of sale of land relating to petitioner No. 1 measuring Ac.0.093 decimals the reserve price was fixed at Rs. 14.80 lakhs, while in respect of the land relating to petitioner No. 2 measuring Ac.0.080 decimals it was fixed at Rs. 12.50 lakhs. The auction was scheduled to be held on 16-4-2008 at 4.00 p.m. However, on the said date the auction could not be held. The properties were re-advertised for auction and the reserve price had been reduced to Rs. 12.50 lakhs &Rs. 12.00 lakhs respectively. The mortgaged properties were sold on 30-7-2007 for a consideration of Rs. 24.50 lakhs to opposite party Nos. 5 and 6.

Being aggrieved the petitioners approached the Tribunal u/s 17(1) of the Act mainly on the ground of undervaluation of the mortgaged properties pointing out that the land worth Rs. 35 lakhs had been sold at a low price of Rs. 24.50 lakhs. The Tribunal issued notices on the said application to the respondents bank, who submitted their written statement. The matter was fixed before the Tribunal on 1-4-2008. On the said date, the petitioners'' counsel filed an application for adjournment on the ground that the Senior Counsel appearing for the petitioner was not well and in support of the said application a photo copy of the medical certificate dated 31-3-2008 was also filed. According to the said medical certificate petitioners'' Senior Counsel had been advised complete bed rest for fifteen days. The Tribunal considered the application for adjournment, and instead of adjourning the case for two weeks, on the ground that the appeal had to be disposed of within four months from the date of its filing, adjourned it to 8-4-2008. When the case came up before the Tribunal on 8-4-2008 again an application for adjournment was filed enclosing therewith a photo-copy of the same medical certificate dated 31-3-2008. The Tribunal refused to give further adjournment and the counsel, who was pressing the application for adjournment, refused to argue the matter on merit. Hence the original application has been dismissed.

Mr. B. Baug, learned Counsel appearing for the petitioners has submitted that the petitioners'' application seeking adjournment was supported by medical certificate. Serious illness of the petitioners'' senior counsel was a good ground for adjournment. There was sufficient time for disposal of the appeal. The Tribunal ought not to have proceeded with haste and rejected the application for adjournment and in case the counsel refused to argue the case on merit, opportunity of arguing the matter by another counsel ought to have been granted adjourning the case. Therefore, the order impugned is liable to be set aside.

We have given serious thought to the submissions made by the learned Counsel for the petitioners. The matter was listed before the Tribunal on 1-4-2008 when the application for adjournment was filed seeking two weeks'' time on the ground of serious illness of the learned Senior Counsel and a photo copy of the medical certificate dated 31-3-2008 was filed wherein complete bed rest was advised to the learned senior counsel. The ailment shown in the medical certificate was cervical spondylitis.

The Tribunal instead of granting two weeks'' time granted one week''s time as stated by the learned Counsel for the petitioners in the petition. For the reasons best known to the petitioners, the copy of the order dated 1-4-2008 passed by the Tribunal has not been filed. Therefore, the possibility that it was a peremptory order and the suggestions to make an alternative arrangement or observation by the learned Tribunal that cervical spondylitis was not such a disease which requires two weeks'' bed rest cannot be ruled out. When the matter was listed on 8-4-2008 similar application for adjournment with the photo copy of the same medical certificate dated 31-3-2008 had been filed. No explanation has been furnished by the learned Counsel for the petitioners as to why a new medical certificate had not been filed and why alternative arrangement of the counsel was not made and why the counsel who was present to press the application for adjournment could not advance the arguments on merit. Undoubtedly the provisions of CPC are not applicable before the Tribunal. However, the principles enshrined therein can be pressed into service (vide Beniram and Others Vs. Gaind and Others, ; Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, ; and M/s. Upadhyay and Co. Vs. State of U.P. and Others, ).

The issue of adjournments by the Courts/Tribunals has been considered by the Courts time and again.

Seeking unnecessary adjournment on non-existent grounds with the oblique motive to delay the conclusion of the cases, "are instances of contumacious conduct, tending to interfere with administration of justice, inviting action of contempt." (Vide Ramji Lal Sharma Vs. Civil Judge, Allahabad and Others, ).

Tendency to procrastinate proceedings by seeking adjournment deserves deprecation but at the same time sufficiency of reasons for seeking adjournment requires to be examined. (Vide Surendra Kumar and another Vs. Rajendra Kumar Agarwal, ).

Undoubtedly, taking unnecessary adjournments causes problems to the Court and inconvenience to the other party, but Courts should adopt an attitude not to penalise the party on that count. More so, procedural ill can be adequately compensated in terms of costs. (Vide K. Patel Chemo Pharma P. Ltd. v. Laxmibai Ramchandra Iyer 1993 (Supp) 2 SCC 174; and Chief General Manager, Telecom and Another Vs. G. Mohan Prasad and Others, .

In State Bank of India Vs. Km. Chandra Govindji, , the Supreme Court examined the case of seeking adjournment on the ground of ailment of the counsel appearing for a party and observed that in ascertaining whether a party had reasonable opportunity to put forward his case or not, one should not ordinarily go beyond the date on which the adjournment is sought for. The earlier adjournment, if any, granted would certainly be for reasonable ground and that aspect need not be once again examined if on the date on which adjournment is sought for the party concerned has a reasonable ground. The mere fact that the adjournments had been sought for could not be of any materiality. If the adjournment had been sought for on flimsy grounds, the same would have been rejected.

Adjournment cannot be sought as a matter of right; not even on the ground that the counsel has no instruction from his client (vide Mary Alvares v. Roy Alvares (2004) 9 SCC 578.

In Nirankar Nath Wahi v. Fifth Additional District Judge, Moradabad AIR 1984 SC 1268, the Apex Court held that a party should not be permitted to abuse the process of the Court but at the same time, a party should be given a reasonable time considering the dimensions of the matter bearing in mind that justice must also appears to have been done and a short adjournment with a degree of understanding should be granted to make an alternative arrangement. However, the case is to be examined in the facts and circumstances involved therein and under no circumstances, the process of the Court should be permitted to be abused by any litigant.

In R. Viswanathan Vs. Rukn-Ul-Mulk Syed Abdul Wajid, the Apex Court while dealing with a similar issue held that seeking adjournment either to avoid a particular Bench or to enable a particular lawyer to appear cannot be held to be justified, as such an attempt at the behest of the litigant may be either for Bench hunting or for adopting dilatory tactics and in case the conduct of the litigant shows such an attitude, the refusal of adjournment is justified.

The Apex Court in Bashir Ahmed Vs. Mehmood Hussain Shah, while considering the provisions of Order XVII, Rule 1(2) proviso (d) CPC, which provides that illness of a counsel cannot be a ground for adjournment unless the Court is satisfied that the party applying for adjournment could not have engaged another counsel in time, held as under:

Therefore, the Court is enjoined to satisfy itself in that behalf. If the party engages another counsel as indicated therein, then the need for further adjournment would be obviated. The words "in time" would indicate that at least reasonable time may be given when a counsel suddenly becomes unwell. There would be reasonable time for the parties to make alternative arrangement, when sufficient time intervenes between the last date of adjournment and the next date of trial. In such a case, adjournment on the ground of counsel''s ill health could be refused and the party would bear the responsibility for his failure to make alternative arrangements.

(Emphasis added).

The Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), , while dealing with the issue of adjournments held that the case can be adjourned by the Court, provided the party satisfies the Court that there exists special and extraordinary circumstances. The Court while considering such a prayer has to keep in mind the legislative intent to restrict the grant of adjournments, as it cannot be claimed in a routine manner. The circumstances seeking adjournment must be shown to be beyond the control of such a party.

Similarly, in Shibanand Mukherjee v. Gopal Chandra De (2005) 11 SCC 557, the Supreme Court dealt with the similar issue of adjournment, wherein the case was dismissed by the High Court refusing the adjournment and the application for restoration was also rejected. The Apex Court restored the matter with the condition that a sum of Rs. 50,000/- would be paid to the other side as compensation. In the said case also, the lawyer did not appear because of ailment and had sent the illness slip.

In Syed Naseem Ahmed v. Mohd. Abudul Hakeem (2005) 12 SCC 302, the Apex Court held that inability of lawyer to attend the Court cannot be a ground for adjournment and dismissed the appeal without adjourning the case further.

In Sheela Devi v. Narbada Devi (2005) 13 SCC 432, the Supreme Court held that breach of faith on the part of the counsel falsely claiming illness as ground of inability to attend the Court is a professional misconduct and sending such false illness has been deprecated and further action was directed to be taken against the lawyer.

Thus, from the above, the legal proposition emerges that adjournment cannot be sought by a litigant in a routine manner. It must be a bona fide attempt, on behalf of the party, illness of the counsel cannot be a ground of seeking adjournment. In certain cases, Court can give short time so that an alternative arrangement be made. It cannot be a means of Bench hunting or dilatory tactics. Where there are more than one counsel, illness of one counsel is no ground to adjourn the case.

Law prohibits grant of unnecessary adjournments by the Courts. Considering the fact situation of the case, since the petitioners'' counsel had sought only one adjournment earlier a sympathetic view could have been taken by the Tribunal. However, the petitioners'' do not seem to be prosecuting their case diligently and bona fidely which is apparent by the following facts.

(i) Copy of the order dated 1-4-2008 has not been filed. Therefore, we are unable to ascertain as to whether any condition had been incorporated in the said order by the Tribunal.

(ii) Learned Counsel who was appearing before the Tribunal and pressing the application for adjournment refused to make any submission on merit.

(iii) The application for adjournment filed on 8-4-2008 was accompanied by the photo copy of the medical certificate dated 31-3-2008 on the basis of which adjournment had already been sought on 1-4-2008. No reason for not furnishing the fresh medical certificate has been given. More so, ailment of the counsel i.e. cervical spondylitis was not of such a nature that he could not attend the Court.

(iv) No explanation is being given as to why the alternative arrangement of counsel was not made if sufficient time had been given by the Tribunal by adjourning the case on 1-4-2008.

(v) The adjournment application was dismissed on 8-4-2008, certified copy of the order was applied for on 25-5-2008, i.e. about one and half months after passing of the order.

(vi) Certified copy of the impugned order was made available to the petitioners on 28-5-2008 the writ petition was filed.

(vii) No attempt was made by the petitioners to get the matter listed before this date.

In view of the above, we are of the opinion that the petitioners failed to prosecute their case diligently and disentitled themselves from grant of equitable relief. From the above facts referred to, it is evident that petitioners had been merely buying time.

The petition lacks merit and is accordingly dismissed.

B.N. Mahapatra, J.

I agree.