Joginder Singh And Ors. vs Oriental Bank Of Commerce And Ors.

Ranjit Singh, J

Non-applicants Joginder Singh and another filed the present appeal impugning order dated 5.8.2008 passed by the Tribunal below whereby their application to recall expert order passed against them holding them liable for payment of some amount, was dismissed. This appeal was disposed of by this Tribunal on 22nd October, 2010. This Tribunal has observed that appellant Joginder Singh had tendered Pay Order of Rs. 3.75 lacs in compliance of the order dated 25.8.2010. The Tribunal has further noticed that Joginder Singh was liable to pay Rs.4.75 lacs out of which he has deposited Rs.1 lac. The Tribunal then considered rate of interest which was awarded and reduced the same @ PLR and directed the appellant to pay the same within two months. The Bank has now filed an application for review of this order.

As per the Counsel for the Bank, there is an error apparent on the face of record inasmuch as the order under appeal was one which was passed by the Tribunal on 5.8.2008 and there was no appeal filed by the appellant against the order determining their liability which was through the order dated 15th January, 1999.

No doubt, the appellants had been proceeded against ex parte before the Tribunal below when it passed the order dated January 15, 1999 but the fact remains that the Tribunal below had held the defendants liable pay a sum of Rs. 20,44,354.84 along with pendent lite and future interest @ 20.5% p.a. with quarterly rests. Besides, the defendants were also held liable to pay costs of the suit. All the defendants were held jointly and severally liable to pay this amount. The appellant did make an attempt to get this ex parte order set aside but that prayer was declined by the Tribunal below vide order dated 5.8.2008. This order was challenged before this Tribunal when the impugned order was passed, a review of which is now sought. There being no challenge before this Tribunal against the order dated 15.1.1999, this Tribunal perhaps could not have passed order which would ultimately nullify or set aside the order dated 15th January, 1999. I see substance in the plea made in review application that this Tribunal had no jurisdiction to pass an order which would lead to set aside or nullifying the order date 15th January, 1999 as no challenge has been raised against that order. The appeal was only directed against the order dated 5th August, 2008. This Tribunal either could have allowed this appeal or set aside the order date 5.8.2008, giving an opportunity to the appellant to contest the claim before the Tribunal below or could have dismissed the said appeal. In my considered view, this Tribunal exceeded its jurisdiction in passing the impugned order as no such relief had been claimed in the appeal. The relief which has been allowed while disposing of this appeal by directing the appellants to deposit a sum of Rs. 4.75 lacs, in fact, would go to nullify the order dated 15th January 1999, against which there was no challenge raised.

In view of this factual and legal position, it can be said that there is error apparent on the face of record as the relief granted is such which was not claimed and could not have been allowed. In my considered view, case for review of this order is made out.

Same is the position in Appeal No. 207/2008 except for the fact that the amount determined in OA is Rs. 12,56,961.00 along with pendent lite and future interest as well as costs of the suit and the appeal was disposed of with a direction that the appellant would be the sum of Rs. 4.75 lacs.

Therefore, orders dated 22nd October, 2010 in both the appeals are recalled. Both the appeals shall have to be heard afresh. The review applications are accordingly disposed of.

Since none has appeared on behalf of the appellant despite service of notice, it would be appropriate to send a fresh notice to the appellants for 1st August, 2014. The Registry would send notice to the appellant by all three modes. Counsel for the respondent shall take appropriate steps to serve the appellant for the adjourned date.

List the appeal for hearing on the adjourned date.