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Judgment
ICICI Bank had granted financial assistance to the appellant. Later, the debt/security was assigned to Kotak Mahindra Bank Ltd. On default by the appellant, Kotak Mahindra Bank instituted an O.A. on 23.1.2007 for recovery of 4,72,06,961/- with interest and cost.
The appellant appeared and filed written statement beside counter-claim on 16.2.2009. The Bank filed evidence on 25.3.2011 whereafter the appellant was directed to file evidence and the case was fixed for final arguments on 3.11.2011, On request made by the Counsel, the case was adjourned to 16.12.2011 for final arguments. Even thereafter the appellant sought time to adduce evidence and the case was adjourned to 22.5.2012.
At this stage, the appellant filed an I.A. raising objections on marking of certain documents by the Bank, which was dismissed with the observation that such objection could be raised at the time of final hearing. When the time was granted to the appellant to file evidence and the case was fixed for 6.6.2012, a representation came to be filed before the Registrar that the appellant wanted to file an application to amend the counter-claim. In this background, an application was filed to amend the counter-claim.
The plea to amend the counter-claim is made on the ground that case was referred to BIFR under SICA and revival package was prepared. ICICI Bank was appointed as Operating Agency by BIFR. The rehabilitation scheme was agreed by the lenders on 22.12.1999. The liability of the company was determined and fixed at Rs. 11.78 crores. Reference is then made to the litigation which had reached the High Court as well as Supreme Court where some orders were passed. It is stated that Hon'ble Supreme Court had modified the earlier orders on 7.5.2012 by directing that out of the amount realised by sale, a sum of L 4.50 crore would be paid to Kotak Mahindra Bank. The prayer for amendment of the counter-claim was accordingly filed to urge that this amount has been so paid. The prayer made by the appellant has been rejected by the Tribunal below with the observation that this application has been filed only for the purpose of gaining time for filing the evidence and to protract the proceedings.
The appellant has not effected service on all the respondents. On 12th January, 2015 the case was adjourned when the Counsel for the appellant made a statement that all the respondents stood served. None had appeared on behalf of respondent Nos. 3 to 5. The case was adjourned by observing that if it was found that the respondents have not been properly served, the consequences would entirely be of the appellant.
Affidavit of service now filed shows that respondent No. 5 has been served whereas the tracking report shows that notices issued to respondent Nos. 3 and 4 had reached only till the post office. The result is that respondent Nos. 3 and 4 have not been served. Consequently, appeal qua respondent Nos. 3 and 4 cannot be allowed to be prosecuted and shall stand dismissed.
The Tribunal below has also made reference to the application filed by the appellant challenging the jurisdiction and for dismissal of the O.A. being barred by limitation. The amendment sought in this background has been viewed in the context of the overall conduct of the appellant which is to prolong the lis. The counter-claim is otherwise raised on the basis of loss it suffered. The amendment in the counter-claim was sought on the ground that the appellant had suffered some losses over and above the sustained losses. Though the issue of counter-claim may not have to be examined on merits at this stage, but the fact as pointed out by the respondent is that the appellant had accepted the liability before the BIFR and even the package for rehabilitation could not succeed as the respondent Bank had not received full amount. If some payments have been made to the respondent Bank, then that would be a matter of evidence and for that purpose no case for amending counter-claim is made out.
The Counsel for the appellant, however, would still submit that the Tribunal has rejected the prayer of the appellant primarily going by the provisions of Order 6Rule 17, CPC. By making reference of the Section 22(2) of the RDDBFI Act, the Counsel would contend that the provisions of CPC are not applicable to the proceedings held under the RDDBFI Act. Counsel submits that the Tribunal under the RDDBFI Act has to follow procedure which is in accordance with of principles of natural justice and the word 'trial' used in Order 6 Rule 17 to regulate the amendment in the pleadings cannot be applied to the proceedings under the RDDBFI Act as no trial in that sense is envisaged under the provisions of the RDDBFI Act. It is urged that the trial which is held in the Civil Court cannot be equated with the proceedings before the DRT.
Though the Counsel for the appellant has made submission on the above noted lines, but the application seeking the amendment of counter-claim is filed under Section 19(25) of the RDDBFI Act with the aid of Order 6 Rule 17 and Section 151, CPC. Even otherwise, I am not impressed with the submission so made. Once the appellant itself has invoked the provisions of Order 6 Rule 17, CPC to seek this amendment, which is a specific provision made in this regard, it can not plead to say that this provision will not strictly apply and the amendment is to be considered in the light of the provisions of 19(25) of the RDDBFI Act. Section 19(25) of RDDBFI Act is provision made in the nature of inherent powers. Use of inherent power is called for only when there is no provision made in this regard in the statute.
It may need a notice here that Section 22 of the RDDBFI Act cannot be read to mean that the provisions of CPC are inapplicable in any manner and this Section only provides that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the CPC. A view, therefore, is possible that the Tribunal and the Appellate Tribunal may not be bound by the procedural limitation laid down in the CPC and even can go beyond the CPC, and when required, and when the same is in tune with the principles of natural justice. Irony of fact is that the Counsel, after pleading that Order 6 Rule 17 of the CPC would not be attracted, has relied upon some judgments which are rendered while considering Order 6 Rule 17 only.
In this regard, Counsel has referred to M/s. Estralla Rubber v. Dass Estate (Pvt.) Ltd., VI (2001) SLT 577=AIR 2001 SC 3295, to submit that mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. It is also observed that the amendment is to be allowed when it does not cast serious prejudice to the opposite side. Reliance is placed on the case of R.N. Jadi and Brothers & Ors. v. Subhashchandra, VII (2007) SLT 24, to highlight the observation of the Court that while justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried. The Court in this case has also observed that all the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. The Court has also observed that in an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court hapless to meet extraordinary situations in the ends of justice.
The above noted observations made by the Hon'ble Supreme Court was in regard to the principle of administration of justice which perhaps was the issue arising before the Court. The Court otherwise was considering the scope of provisions of Order 8 Rule 1, CPC in this case. These observations accordingly will not apply to the facts of the present case where, concededly, the aim of the appellant appears to be to prolong the proceedings by filing one application after another. Even the reliance on the case of Rajendra Prasad Gupta v. Prakash Chandra Mishra & Ors., V (2011) SLT 134=111(2011)CLT82(SC)=AIR2011 SC 1137, can also not be of any help to the case of the appellant. The Court in this case was considering the issue of application filed by the appellant to withdraw this suit. Having filed this application, the appellant had change of mind and filed an application for withdrawing the earlier application. The second application was dismissed and the order was also upheld by the High Court. The appellant accordingly had filed the appeal before the Supreme Court when the Court has considered the scope of inherent power under Section 151, CPC to do justice. As already noticed, the question of invoking inherent power would arise in those cases where no specific provision is made in the statute. The Hon'ble Supreme Court has considered this issue in the light of the facts situation before it. Accordingly, this judgment would not help the cause of the appellant in any manner.
There is no merit in the prayer made for amending the counter-claim. The Tribunal below has rightly dismissed the application for amendment and the same would not call for any interference. The appeal is thus dismissed.