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Judgment
P.K. Bhasin, J
The two appellants, who are husband and wife, were directed by the Debt Recovery Tribunal-III, Delhi (in short 'DRT') to pay to the respondent Bank over a crores of rupees without specifying the exact amount vide its order dated 5.9.2014 in the Original Application No. 56/2004 filed by the respondent Bank under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ('Act of 1993' in short'. That O.A. was filed initially by the respondent Bank against five defendants, out of whom respondent No. 2 herein was sued as the principal borrower, a proprietorship concern of respondent No. 3 herein and the appellants herein and respondents 4 to 6 herein as the guarantors for the repayment of loans of crores disbursed to the said borrower Firm from time-to-time from 1995 onwards. The appellants had also created equitable mortgage of their residential house in Gurgaon and one plot of loan in Rajpuri Garden, New Delhi to secure the repayment of loans given to the borrower Firm. Respondent Nos. 4 and 5 herein had also created equitable mortgage of their Godown in Hissar (Haryana). Respondent No. 6 Randhir Sood had also created one equitable mortgage of one plot in village Nangli Sakrawati, Najafgarh Road, Delhi. The principal borrower became defaulter in repayment of the respondent Banks's dues and consequently its account was classified as Non Performing Asset. (NPA) on 31.3.2002 by the respondent Bank. As on 25.5.2004 a sum of Rs. 3,38,34,981.32 became due to the respondent Bank from the borrower Firm and the guarantors/mortgagors which they failed to liquidate despite service of demand notices. The respondent Bank then had to approach the DRT with an O.A. sometime in June, 2004 for issuance in Recovery Certificate for a sum of Rs. 3,38,34,981.32 with pendente lite and future interest thereon at the contractual rate of interest of 15.50% p.a. with quarterly rests also penal interest @ 2% p.a. It was prayed in the O.A. that in the event of defendants in the O.A. failing to clear the decretal amount within the period to be given to them by DRT the decretal amount should be recovered from the sale of mortgaged properties.
After filing of the O.A. the appellants appeared in the matter before the DRT and filed their joint written statement in August, 2005. However, the O.A. does not appear to have been disposed of on the basis of pleadings of the contesting parties for years thereafter. Then sometime in the May, 2009 the appellants offered to the Bank an OTS payment of Rs. 2 crores in full and final settlement of their liability and for release of the two properties which they had mortgaged with the Bank. The Bank appears to have not agreed to that proposal and informed them vide its rejection letter dated 4.6.2009 that their proposal of Rs. 2 crores was found not to be in consonance with the policy of the Bank and they were asked to improve their offer ' substantially'. Subsequently another offer letter was given to the Bank by the appellants for the same amount of two crores but the Bank turned down that proposal also sometime in 2011.
Then came the turn of co-sureties to approach the Bank with a settlement proposal in 2012 which was for a sum of Rs. 205 lacs in full and final settlement of the entire dues from them as were being claimed from them in the O.A. The Bank obliged them even though earlier it had informed the appellants that their offer of two crores was not in consonance with the Bank's policy of settlement. Those three guarantors paid the money as per the settlement proposal submitted by them. Though the money was paid late but the Bank accepted the late payment also after charging late payment interest. The Bank accordingly informed the DRT about the settlement with these three defendants (out whom defendant Shyam Das, respondent No. 5 in this appeal has now expired) by moving one application on which the DRT had passed the following order on 11.12.2012:
"1. This application has been filed by the applicant Bank praying therein to release/discharge of the defendant Nos. 3, 4 and 7 from their liabilities as guarantors/mortgagors in the present O.A.
The learned Counsel for the applicant Bank submits that during the pendency of this O.A., the defendant Nos. 3, 4 and 7 had approached the applicant Bank settlement of their outstanding liabilities with the applicant as guarantors/mortgagors and gave an OTS offer of Rs. 205 lacs to the applicant Bank, which was sanctioned by the Bank and the said defendant Nos. 3, 4 and 7 had paid the entire OTS amount of Rs. 205 lacs along with interest for the delayed period of Rs. 18,800/- to the applicant Bank.
The learned Counsel for the applicant Bank submits that as such on receipt of the said OTS amount from the defendant Nos. 3, 4 and 7 as guarantors/mortgagors, the applicant Bank nothing to recover from the said defendants and they may be released/discharged in the present O.A She further submits that the applicant Bank has no subsisting mortgage charge over the properties i.e. (i) property being shop/godown No. 29, New Model Mandi, Hissar, Haryana (belonging to the defendant Nos. 3 and 4) and (ii) property admeasuring 1 Bigha 14 Biswas, comprised of Mustatil No. 34 Killa No. 21, situated in revenue estate of Village Nangil Sakrawati, Najafgarh Road, Delhi (belonging to the defendant No. 7).
The learned Counsel for the applicant Bank submits that the original title deeds of the property situated at Nangil Sakarwati, Najafgarh Road, Delhi belonging to the defendant No. 7, have been seized by the CBI during the investigation from the Bank due to some dispute and such as the applicant Bank is not in possession of the original title deeds of the said property and they have also issued the letter for satisfaction of mortgage charge of the applicant Bank over the said property.
In view of the above, the learned Counsel for the applicant Bank has prayed for release/discharge of the defendant Nos. 3, 4 and 7 from their liabilities as guarantors/mortgagors in the present O.A.
At this stage, the learned Counsel for the applicant Bank submits that the original title deeds of the property situated at Hissar, which is belonging to the defendant Nos. 3 and 4, are lying in this Tribunal and she has prayed for release of the same documents.
Heard the learned Counsel for the parties, perused the records and in view of the aforesaid facts and circumstances, the defendant Nos. 3, 4 and 7 are hereby released/discharged from their liabilities as guarantors/mortgagors in the present O.A. and the applicant Bank is hereby directed to file the amended memo of parties before the next date of hearing.
The prayer for release of the original title documents in respect of the property situated at Hissar is hereby allowed and Registry of this Tribunal is hereby directed to release immediately the original title documents of the said property situated at Hissar, if same are filed by the Bank, to the Authorised Officer of the applicant Bank for onward transmission to the defendant Nos. 3 and 4 after obtaining necessary certificate of acknowledgement and certified copies of the documents.
With the above observations, the present I.A. is allowed and disposed of. Matter be listed on 13.2.2013 for further proceedings.
Sd/-.
(ASHISH KALIA)
Presiding Officer
DRT-III, Delhi"
So, that way three guarantors whose valuable properties were under the control of the Bank and from also the Bank had sought joint and several recovery certificate for four crores odd (inclusive of interest) were let off by the Bank by accepting from them almost half of the recoverable amount and they walked out with their properties, from which also the balance public money could be recovered.
It appears that the appellants thereafter approached the DRT by moving an application for discharging them also on payment of balance unpaid amount in the borrower's account but with interest @ 6% p.a. The Bank had, however, opposed their request for awarding interest @ 6% p.a. and the DRT then passed the following order on 31.1.2013:
"1. This application has been filed by the defendant Nos. 5 and 6 praying therein to allow the defendant Nos. 5 and 6 to pay the O.A. amount along with 6% interest on reducing balance after giving the due adjustment of Rs. 205 lacs received by the applicant Bank from the defendant Nos. 1 to 4 within a period of 60 days.
The learned Counsel for the defendant Nos. 5 and 6 submits that the defendant Nos. 1 to 4 have already paid a sum of Rs. 205 lacs to the respondent Bank. He further submits that the defendant Nos. 5 and 6 are the guarantors to the facility availed by the borrower but in order to avoid further litigation the defendant Nos. 5 and 6 are ready and willing to deposit the balance amount with the applicant Bank along with further interest @ 6% simple within a period of 60 days.
On the other hand the learned Counsel for the applicant Bank has vehemently opposed for granting the interest @ 6% simple to the defendant Nos. 5 and 6.
Heard the learned Counsel for the parties, perused the records and this Tribunal is of the view that no fruitful purpose would be served to drag this matter further when the guarantors being defendant Nos. 5 and 6 have come forward to clear the balance dues of the applicant Bank within a period of 60 days but the only hitch is that the defendant Nos. 5 and 6 want to pay the future interest @ 6%.
However, this Tribunal is of the view that as per the provision of Section 19(20) of the Recovery of Debts Due to Banks and Financial Institution Act, 1993 which is analogous to Section 34 of CPC, on filing of the suit/claim, the contract between the parties comes to an end and the Court/Tribunal has a discretion to award the same depending upon the circumstances of each case. Same principle has also been laid down by the Hon'ble Apex Court in the case of Central Bank of India v. Ravindera & Ors., I (2002) BC 150 (SC) : VII (2001) SLT 400 : IV (2001) CLT 127 (SC). Taking stock of all the circumstances and keeping in view that there is a drastic fall in rates of interest globally and domestically. I am of the opinion that interest of justice will be served if the interest at the rate 10% simple is awarded.
Thus, I hereby direct the defendant Nos. 5 and 6 to clear the balance dues of the applicant Bank (less the amount already received by the applicant Bank from the defendant Nos. 1 to 4) along with future interest @ 10% simple within a period of 60 days and it is needless to say that on receipt of their entire dues, the applicant Bank will release the original title documents to the mortgagor.
With the above observations, the present I.A. No. 31 of 2013 is disposed of.
Matter be listed on 31.3.2013 as date already fixed, for further proceedings.
Sd/-
(Ashish Kalia)
Presiding Officer
DRT-III, Delhi."
It appears that the appellants herein were not inclined to pay the unpaid dues of the Bank with interest @ 10% p.a. they were directed to do by DRT, as against the rate of interest 6% p.a. volunteered by them in the settlement proposal placed before the DRT and, therefore, they decided to approach the Bank itself for an out of Court with the hope that the Bank will oblige them also as was done in the case other three co-sureties by the Bank. The Bank agreed to settle the matter on payment of Rs. 275 lacs (as against the settlement amount of Rs. 205 lacs at which it had earlier settled with three co-sureties) vide its letter dated 6.8.2013. However, since the appellants did not accept that decision of the Bank the settlement (OTS) was revoked by the Bank vide its letter dated 12.11.2013. The O.A. of the Bank had remained pending by then. However, what happened thereafter in the O.A. proceedings is really quite strange. The procedure adopted by the learned Presiding Officer DRT thereafter was not in accordance with the procedure to be followed in such like O.As.
On 5.9.2014 the learned Presiding Officer abruptly on the request of the Bank brought to an end the O.A. proceedings by passing the following order:
"Present: Smt. Seema Gupta, Counsel for the applicant Bank. Shri Amit Dhall, Counsel for the defendant Nos. 5 and 6.
The learned Counsel for the applicant Bank submits that the applicant has already received a sum of Rs. 2.05 crores from the defendant Nos. 3, 4 and 7 and in view of the same these defendant Nos. 3, 4 and 7 have been released from this matter. She further submits that this Tribunal, vide its order dated 31.1.2013, directed the defendant Nos. 5 and 6 to clear the balance dues of the applicant Bank along with future interest @10% simple within a period of 60 days but till date these defendants have not cleared the balance dues of the applicant Bank and she has also prayed for issuance of recovery certificate in terms of the order dated 31.1.2013.
After hearing the learned Counsel for both the parties, perused the records and this Tribunal is of the view that the remaining defendant Nos. 1, 2, 5 and 6 have already availed more than sufficient time to clear the balance dues of the applicant as per the direction of this Tribunal but till date they have complied with the direction of this Tribunal. In view of the conduct of the defendants, I hereby direct the Registry of this Tribunal to issue the recovery certificate for a sum of Rs. 3,38,34,981.32 (less the amount already deposited by the defendants) along with future interest @ 10% simple to be charged from the date of filing of this O.A. till the date of realization against the defendant Nos. 1, 2, 5 and 6 as per the order dated 31.1.2013 passed by this Tribunal.
Parties are directed to appear before the Recovery Officer, DRT-III, Delhi on 31.10.2014.
With the above observations, the present original application is disposed of.
File be consigned to records.
Sd/-
(ASHISH KALIA)
PRESIDING OFFICER
DRT-III, DELHI"
Thereafter recovery certificate was issued but in that certificate there was no mention of the two mortgaged properties of the appellants therein. Therefore, the Bank moved an application for correcting the recovery certificate. The DRT accepted that prayer vide its order dated 5.2.2015 which is re-produced below:
"1. This application has been filed by the applicant Bank praying therein for correction/amendment in the Recovery Certificate dated 15.9.2014 by incorporating the two mortgaged properties as mentioned in Para No. 7 of this application by giving the right to the applicant Bank to recover its certificate amount by sale of the mortgaged properties, in the name of the defendant Nos. 5 and 6.
It has been submitted by the applicant Bank that the defendant Nos. 3, 4 have settled the matter with the applicant Bank for a sum of Rs. 205.00 lacs and in the similar manner the defendant Nos. 5 and 6 also agreed to pay the balance amount and accordingly the recovery certificate was issued but inadvertently the mortgage properties could not be mentioned in the recovery certificate.
Notice of this application was issued and Mr. Amit Dhall, Counsel put his appearance on behalf of the defendant Nos. 5 and 6.
After hearing the learned Counsel for both the parties, this Tribunal is of the view that the present application is formal in nature because the following two mortgage properties are required to be incorporated in the recovery certificate. Thus, I hereby direct the Registry of this Tribunal to issue the amended recovery certificate incorporating therein following two mortgage properties.
(i) Plot No. 1, Block T, Rajouri Garden, New Delhi.
(ii) Plot No. B-684, Sushant Lok Phase-I, Gurgaon, Haryana.
With the above observations, the present application is allowed and the same is disposed of.
I.A. (M) No. 1665 of 2014
The present application has been filed by the defendant Nos. 5 and 6 praying to direct the Authorised Officer of the applicant Bank to restore back the possession/stato quo ante may be granted in relation to the property bearing plot No. B-648, Sushant Lok, Phase-I, Gurgaon.
In view of the above order passed in I.A. No. 1664 of 2014, the present application becomes infructuous and hence the same is hereby dismissed as infructuous.
With the above observations, these two applications being I.A. No. 1664 of 2014 and I.A. No. 1665 of 2015.
File be consigned to records.
Sd/-
(ASHISH KALIA)
PRESIDING OFFICER
DRT-III, Delhi"
The grievance of the appellants now before this Tribunal in this appeal is that even though the appellants had been trying to settle the dispute matter with the Bank directly as well as with the involvement of the Tribunal below and those efforts did not fructify the way the appellants wanted the DRT could not have wrapped the O.A. proceedings abruptly on 5.9.2014 just because the appellants had failed to accept the decision of the DRT to clear the Bank's dues with interest @10% p.a. It was submitted by Ms. Geeta Luthra, learned Senior Counsel for the appellants that the appellants had never abandoned their legal battle and the various objections which they had way back in the year 2005 taken in their written statement. The DRT was bound to proceed to adjudicate the Bank's claim after considering the pleas taken by the appellant-defendants in their written statement and after fixing the case for evidence and giving opportunity of oral arguments to all the contesting parties could have returned any finding in accordance with law either in favour of the Bank or the appellant defendants. Learned Senior Counsel vehemently argued that the order dated 5.9.2014 is no order in the eyes of law and is non est being devoid of any discussion of the pleadings of the parties which the DRT was bound to discuss even if the appellants had failed to accept the direction for payment of Bank's dues with interest @10% p.a. This case, according to the learned Senior Counsel Ms. Geeta Luthra, deserves to be remanded back to the DRT with a direction that the O.A. should be disposed of afresh in accordance with law after considering the pleadings and evidence and by passing a reasoned order.
On the other hand, Ms. Seema Gupta though could not support the way the O.A. proceedings were wrapped up by the learned Presiding Officer of DRT but opposed the appeal on the ground that whatever way the O.A. was disposed of that was done on 5.9.2014 and then the recovery certificate was corrected by DRT vide its order passed in February, 2015 and, therefore, the present appeal is hopelessly time barred as far as challenge to these two orders of DRT are concerned.
Responding to this objection of limitation raised by the learned Counsel for the Bank learned Senior Counsel for the appellants submitted that there was no question of law of limitation getting attracted in this case since there was no adjudication of the Bank's O.A. and the order dated 5.9.2014 was a nullity having been passed without putting the case to trial and the adoption of short cut route by the learned Presiding Officer is unknown in law and unless and until there was an adjudication of the disputes between the parties the O.A. could not be said to have been disposed of. Ms. Seema Gupta however did not contest this legal issue raised by Ms. Geeta Luthra that incase order dated 5.9.2014 is considered by this Tribunal.
After giving my thoughtful and serious consideration to the rival submissions and the different orders passed by the learned DRT in the Bank's O.A. I have unhestitatingly come to the conclusion, and as was submitted by Ms. Geeta Luthra, learned Senior Counsel for the appellants also, that stricto senso there has been no disposal of the Bank's O.A. and the order dated 5.9.2014 cannot be considered to be an order of disposal of the O.A. at all. The same is a nullity and so there is no question of the appeal being time barred as far as that order is concerned. As noticed already, it was not that the appellant-defendants had admitted the claim of the Bank either wholly or even part thereof. Way back in the year 2005 they had opposed the Bank's case by filing a detailed written statement in which various objections were raised in opposition. It was pleaded that the appellants had revoked their guarantee in the year 2009 and so they were not liable for any amount falling due to the Bank on the basis of loans advanced/enhanced to the principal borrower subsequent thereto. Another plea taken was that the Bank having discharged three co-sureties without the knowledge and consent of the appellants the appellants got automatically discharged of entire liability if at all any existed. Yet another objection raised was that the O.A. qua the appellants was time barred. Other pleas were also raised in the written statement. The Bank does not claim to have refuted those pleas by filing any rejoinder to the written statement of the appellants. Therefore, the learned Presiding Officer of the DRT was bound in law to deal with all those objections of the appellants in its final order. Just because the appellants had at some stage moved the DRT with a proposal of settlement to clear the Bank's dues with interest @ 6% p.a. and that rate of interest was not acceptable to the Bank as well as the DRT the appellants could not have been considered to have abandoned their pleas taken in their written statement in opposition to the Bank's claim. It is well settled that even when a defendant is ex parte in some recovery case the Court or any Tribunal ought not to decree the plaintiff's case blindly without even noticing the facts of the case and returning appropriate findings in accordance with law applicable.
It was held by the Hon'ble Supreme Court in the case of Rameshwar Dayal v. Banda (Dead) Through His L.Rs., 1993(1) SCR 198, that an order without reasons as non est. This Tribunal considers it appropriate and profitable to reproduce the said illuminating decision of the Apex Court in extenso including the paras where facts are narrated and where relevant discussion is there:
"2. The appellant claimed to be the owner of 'Gher' (property in dispute) in the town of Shameili and in that capacity, according to him, he had let out the property to one Habib as long ago as in 1966. He had filed Suit No. 591/66 against Habib for recovery of rent and the suit was decreed. According to the appellant, Habib sublet the property to one Banda. In 1974, the appellant filed a suit for eviction of both Habib and the subtenant Banda in the Court of Small Causes. This suit was decreed against both Habib and Banda.
Thereafter, Banda, filed an application for setting aside the said decree. His application was dismissed. The revision filed by him before the Additional District Judge was also dismissed on 26th September, 1977. Thus, according to the appellant, the eviction decree against both Habib and Banda became final on that date.
However, Banda filed the present suit on the basis of his title as the owner of the property which has given rise to the present appeal. In the suit, he claimed two reliefs, viz., that the decree passed by the Small Causes Court in Suit No. 45/1974 was nullity, and an injunction restraining the defendant in the suit, namely, Rameshwar Dayal the present appellant, from dispossessing him of the property. The trial Court dismissed the suit on 7th May, 1979 by recording a finding that plaintiff Banda was not the owner but it was the appellant before as, viz., Rameshwar Dayal who was its owner. In support of its conclusion, the Trial Court relied on a registered rent deed dated 7th December, 1956 under which the present appellant had let out the property in dispute to some other tenant, earlier.
The judgment of the trial Court was set aside in appeal by the Civil Judge, District Muzaffarnagar by his decision dated 13th December, 1985 the effect of which was to decree the suit filed by the respondent Banda. The second appeal filed by the appellant was dismissed by the High Court by the impugned order.
Two contentions were raised before us by Mr. Shanti Bhushan, the learned Counsel appearing for the appellant. The first was that the decree passed by a Court of competent jurisdiction could not be declared as not binding on a person who was a party to the suit, and the second was that, the view taken by the lower Appellate Court that the judgment of the Small Causes Court did not operate as res judicata between the parties because the Small Causes Court had no jurisdiction to decide the title to the suit property, is erroneous in law.
It is sought to be argued before us on the basis of the aforesaid provisions of Section 23, that it is not obligatory on the Small Causes Court to refer the issue of title to immovable property to a Court having jurisdiction to determine such title. The expression 'the Court may at any stage of the proceedings............suggests that an option is given to the Small Causes Court to use its discretion whether it would proceed to decide the title itself or refer the question to the Court having jurisdiction to do so. According to us, in the facts of the present case, it is not necessary to go into that question since the decision of the Small Causes Court nowhere indicates that the Court had used, any such discretion, even assuming that it is the discretion of the Court to refer or not the question, to the Court of competent jurisdiction. The decision which is contained in two paragraphs only, reads as follows:
"This suit is for ejectment of the defendant from a Gher (House) as per details given at the foot of the plaint as well as for the recovery of Rs. 1,756.50 towards rent at Rs. 50 a month with effect from 7.6.1974 upto date of delivery of possession. The defendant did not turn up to contest the suit on the date fixed for hearing. Hence, the case proceeded ex parte against him. The plaintiff has proved his case by adducing necessary evidence. The suit is ex parte decreed with costs for the ejectment of the defendants from the suit property as well as for the recovery of Rs. 1,756.50 as prayed. The plaintiff shall further be entitled to recover mesne profits with effect from 7.6.1974 upto the date of delivery of possession as permitted by law at Rs. 50 a month on paying the requisite Court fees on the execution side."
In order to appreciate what the Small Causes Court has and has not done, it is necessary to remember that in that suit the present appellant was the plaintiff and both Habib and the present respondent Banda were defendant Nos. 1 and 2 respectively. It is not disputed that the present respondent had filed his written statement, and had in terms contended that he was the owner of the property in question being in possession of the same since the time of his ancestors, and he had not been living in the property as sub-tenant. However, the aforesaid so-called decision of the Small Causes Court does not refer to the present respondent or to the written statement filed by him and the plea taken by him in the said written statement. It only states that "the suit is for ejectment of the defendant (not defendants) as per the details given at the foot of the plaint as well as for the recovery of Rs. 175650 towards rent etc. etc. It also says that "the defendant (not defendants) did not turn up to contest the suit hence the case proceeded ex parte against him (not them)". Then it proceeds to state that the plaintiff has proved his case by adducing necessary evidence.
It is, therefore, obvious that the Small Causes Court proceeded to dispose of the suit as if what mattered in the suit was only the presence or absence of the defendant Habib. It did not take any cognizance of the present respondent's presence or absence, and of the written statement filed by him. Had it taken cognizance of the written statement, it would have become obligatory on its part to set down the points for determination. Had it further itself decided to proceed with adjudication of the title instead of referring it to the Court of competent jurisdiction, it could have done so after stating the points for determination. What is more, the Court had to give its decision on the point. The Small Causes Court did neither. In fact, as is clear from the so-called decision the whole of which is reproduced above, there is no reference to the written statement or to the question of title to the suit property raised, therein nor is there a decision on the point even remotely, not to say incidentally.
In the circumstances, the controversy raised before us as to whether the Small Causes Court is under an obligation or not to refer the issue with regard to the title to the property to a Court of competent jurisdiction and whether the bar of res judicata would apply to the present suit brought to establish title to the property, is purely academic. It would be a travesty of justice to hold that by the above order the Small Causes Court had even incidentally decided the issue with regard to the title which fell for determination directly and substantially in the subsequent suit which has led to the present appeal.
The next question is whether the decision of the Small Causes Court is binding on the respondent Banda. In order to be binding, the order of the Court disposing of the suit must amount to a decree. Section 2(2) of Code of Civil Procedure (the 'Code') defines decree as follows:
"(2) 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the right of the parties with regards to all or any of the matters in controversy in the suit and may be either preliminary or final.............
The definition of 'Order' given in Section 2(14) of the Code is as follows:
(14) "Order' means the formal expression of any decision of a Civil Court which is not a decree."
However, neither the order nor the decree should be confused with judgment which is defined by Section 2(9) of the Code as the statement given by the Judge of the grounds of a decree or order'. The definitions of decree, order and judgment given in the Code show that decree or order as the case may be, can come into existence only if there is an adjudication on the relevant issues, which conclusively determines the rights of the parties.
We have already pointed out earlier that the Small Causes Court has not even noticed the matters in controversy between the appellant and the respondent, and consequently, there has been no adjudication or decision on the said matters. There is thus no formal expression of adjudication............. Conclusively determining the rights of the parties with regard to............The matters in controversy in the suit".
It is not disputed that in view of the provisions of Section 17(1) of the Provincial Small Causes Court Act, the Code is applicable to Small Causes Court except where it is otherwise provided either by the Code or the said Act. Apart from Rules 4(1) and 5 of Order XX of the Code, on this count also, it was obligatory for the Small Causes Court, in the present case, to state the points for determination and give its finding or decision on each of the said points. Hence the present decision of the Small Causes Court is not a judgment and a decree in the eye of law and is, therefore, non est as far as the respondent is concerned.''''
(Emphasis laid by me)
In view of these views of the Apex Court of the country the submission of the learned Counsel for the Bank that the order dated 9.5.2014 cannot be touched having attained finality needs to be rejected. That order is non est and the grave irregularity committed by the DRT in fastening such a huge financial liability on the appellants cannot be overlooked by this Tribunal which besides being the DRT's Appellate Authority also exercises power of judicial superintendence over the DRTs under its jurisdiction and in exercise that power of judicial superintendence by this Tribunal no hurdles can come in its way in rectifying the grave blunder committed by the DRT by throwing to the winds all legal and procedural formalities to be observed while dealing with such like recovery cases. There is no doubt that the DRTs are bound to ensure speedy recovery of public monies but certainly not by treading over and sidelining the basis procedure to be followed for the disposal of such recovery cases. The upshot of above is that the matter has to be remanded back to the DRT for disposal of the Bank's O.A. qua the appellants herein after considering and dealing with the pleas raised by the appellant-defendants in their written statement and also the evidence led already and if no date was earlier fixed for evidence one opportunity only will be given to both the parties for filing affidavits of evidence. This appeal is accordingly disposed of with an order of remand and direction to the DRT to pass a reasoned final order in the O.A. and since the matter is very old the DRT should make endeavour to pass the final order with a maximum period of three months from the date of receipt of this order. The matter shall now be taken up on 4.9.2018 at 2 p.m. for giving appropriate directions to the parties.