Indiabulls Housing Finance Ltd. vs Chander Mohan Kapur And Ors.

Ranjit Singh, J

The appellant Indiabulls Housing Finance Ltd. had earlier filed Appeal No. 418/2014, which was disposed of by this Tribunal on 15.12.2014. In this appeal the appellant had challenged the action of the Tribunal below in entertaining two M.As. in an S.A. which had been disposed of even after an unsuccessful attempt by the borrower to seek review of that order. In fact the appellant had raised two-fold grievance in the said appeal field against the order passed by the Tribunal blow.

The second grievance in the said appeal was in regard to the action of the Tribunal below in leaving the adjudication of the amount which may have been due and payable, to the Advocate Commissioner. As per the appellant, the action of the Tribunal to leave the adjudication of the amount to the Advocate Commissioner amounted abdication of powers of adjudication by the Tribunal as calculation, if any, was required to be done and ought to have been done by the Tribunal itself.

This Tribunal found substance in the submissions made by the appellant. This Tribunal had observed that the Tribunal itself should settle the amount which may be due and payable in terms of the order passed in the S.A. on 15.1.2013. It was further observed that this exercise would be needed to ensure that the earlier order passed by the Tribunal is not subjected to any review.

It was also observed that the amount due could easily be calculated on the basis calculation of interest allowed which was 13% p.a. from 8.10.2008 on the principal amount of Rs. 18,64,443/- from which the amount received could easily be deducted. This Tribunal accordingly had held that for this purpose there was no need or requirement for appointing any Advocate Commissioner and thus disposed of the appeal giving direction to the Tribunal below to calculate the amount which was due and payable in terms of the order dated 15.1.2013. The direction issued by the Tribunal below to appoint Advocate Commissioner to do this exercise was set aside without going into the issue of maintainability of the M.A. filed by the borrower in a disposed of S.A. This was considered necessary to bring an end to the litigation.

The relevant part of the direction issued by this Tribunal in the order 15.12.2014 are as under:

"I find substance in the plea raised by the Counsel for the appellant. Without going into the aspect whether the Tribunal below was justified in entertaining this M.A. in disposal of S.A. or not, I would observe that the Tribunal below should itself settle the amount which may be due and payable in terms of the order passed in the S.A. on 15.1.2013. This would be needed to ensure that the earlier order passed by the Tribunal is not subjected to any review. The determination of the amount due by calculating 13% p.a. interest from 8.10.2008 on the principal amount of Rs. 18,64,443/- and then deducting the amount received directly or through the Tribunal after 8.10.2008 can easily be worked. For this purpose, there was no need or requirement for appointing any Advocate Commissioner. It would therefore be appropriate for the Tribunal below to calculate this amount which is now due and payable in terms of the order dated 15.1.2013. Accordingly, the direction by the Tribunal to appoint an Advocate Commissioner to do this exercise is set aside without, however, going into the issue of maintainability of the M.A. filed by the borrower in disposal of S.A. The direction to calculate this amount is given having regard to the peculiar nature of this case so as to bring an end to the litigation which is still pending despite adjudication of the S.A. on 15.1.2013."

The Tribunal below instead of complying with the direction issued by this Tribunal has again placed reliance on the report of the Advocate Commissioner to determine the amount. The Tribunal has done so even after taking note of the order dated 15.12.2014 passed by this Tribunal, requiring the Tribunal itself to calculate the amount due and payable in terms of the order dated 15.1.2013.

I find that this conduct of the Tribunal in relying upon the report of the Advocate Commissioner, which appointment was set aside by this Tribunal vide order dated 15.12.2014, is a mode which, to say the least, is impermissible. Once the action of the Tribunal below to appoint an Advocate Commissioner was set aside, the Tribunal below cannot show any justification to rely upon any report given by such Advocate Commissioner. The order by the Tribunal below is thus contrary to the directions issued by this Tribunal. It gives an impression of deft defiance and may convey obstinacy.

The mention made by the Tribunal that Advocate Commissioner is an independent person and thus the Tribunal can consider his report to come to the conclusion when there is an ocean of difference in-between the applicant and the respondent is certainly an act which is contrary to the direction given by this Tribunal. Once the direction to appoint Advocate Commissioner was set aside by this Tribunal, any action taken by such Advocate Commissioner could not have been made the basis of passing an order. A well trained judicial mind ought to have realized the implication of relying on the report of the Advocate Commissioner which is set aside unless the intention was to ignore the order passed by this Tribunal. It would be a rather bad day for judiciary if the orders passed by Higher Courts are permitted to be glossed over or ignored while being aware of the orders. Such a method would have to be checked.

The reasons for which the order passed by the Tribunal below is interfered with may not call hearing for the respondent side. Accordingly, it is not considered necessary to issue notice to the respondent in this appeal. If the respondents still have grievance they may seek review of the order by moving proper application.

For this reason as aforementioned the impugned order passed by the Tribunal cannot be sustained and is set aside. This appeal is allowed. The Tribunal below is directed to do this exercise itself without taking into consideration or without placing reliance on the report given by the Advocate Commissioner. This exercise be completed within one week from the date fixed for hearing before the Tribunal. The copy of the order so passed be forward to the Registry of this Tribunal for perusal. The copy of this order be also communicated to the Tribunal below immediately under intimation to the parties to appear before the Tribunal below on 5.5.2015.