Manmohan Singh And Ors. vs Bank Of India

Ranjit Singh, J

The prayer made in the application (I.A. No. 838/2015) to take on record the written statement filed before the Tribunal below is allowed and the written statement is taken on record. The appellant has filed this appeal to impugn the order passed by the Tribunal below whereby his M.A. filed before the Tribunal in O.A. No. 361/1997 with the prayer to withdraw/cancel/amend R.C. has been dismissed.

Bank of India had filed O.A. No. 361/1997, which was allowed by the Tribunal below on 8.2.2001. The Tribunal had issued an R.C. for recovery of a sum of Rs. 39,46,561/- with interest @ 22.25% p.a. with quarterly rests.

The appellant has appeared in person to make submission in this appeal. The appellant had not affixed full Court fee on this appeal. On first hearing of appeal on 18.6.2015, the appellant had prayed for time to make up the deficient Court fee and the case was adjourned to 29.7.2015. On this date, the case was again adjourned to 10.9.2015 on the request of the appellant. On 10.9.2015, the appellant was heard at some length, taking the case at the end of board as per the request of the appellant. The appellant made his submission in a manner any litigant appearing in person would make, who is not well-versed with the manner in which the appeal was required to be argued. The appellant had made submission in his own way being unaware of procedure. The appellant would read each paragraph of the impugned order to say that point is wrongly decided. Despite being apprised that he has to explain the delay, of 12 years in making the present approach, the appellant continued to proceed in his own manner.

The plea of appellant as recorded by the Tribunal below is that the Bank had not account for US$ 744,000 (approx.) which the Bank had received by honouring the bills and upon adjustment of this amount, nothing would be due against the appellant. The Tribunal in this regard has observed that the appellant had filed a suit claiming this amount from the Bank before the Civil Court. A suit was also filed before the High Court, which was dismissed. The appellant had filed an appeal, which was also dismissed. The Tribunal found that the appellant would be precluded from raising this issue again in the present MA.

What is primarily weighed with the Tribunal is that final judgment in the O.A. was passed on 8.2.2011 and the appellant had filed this application (MA) for recall of the R.C. after a lapse of 12 years. The Tribunal did not find any merit in the application and has dismissed the same.

The appellant would submit that the suit which he had filed was for rendition of accounts and was not for claiming this amount as has been held by the Tribunal below. The appellant would accordingly contend that the finding returned by the Tribunal would be bad on this count alone.

An attempt was made to apprise the appellant about the difficulty confronting for filing this application with a delay of 12 years. The appellant, however, has remained stuck to his line and failed to understand and appreciate what was told to him. It was then thought appropriate to grant time to the appellant to have the assistance of a Counsel. This order was passed on 10.9.2015. The case was adjourned to 7.10.2015 for further arguments when the appellant promised to bring a Counsel.

On the adjourned date, the appellant again appeared without a Counsel to state that he was unwell. He was apprised that he has been seeking adjournment since June 2015. Still, last opportunity was allowed to enable the appellant to engage and bring a Counsel, if he so desired. In fact, the appellant has been taking the assistance of a Counsel for reading the documents which he wanted to highlight in support of his plea before this Tribunal.

Today, the appellant has appeared with the Counsel who had earlier been present with the appellant. The appellant hands over a copy of written submissions stating that he would make some oral submissions as well.

Besides these written submissions, the appellant has also addressed this Tribunal orally. He has been switching from one point to another without correlating these in any manner to challenge the impugned order. He would submit that the Bank has not denied that the documents were given but these documents were not returned. He has referred to some application which was filed by him for extension of time for forwarding the document to RBI, but despite this the Bank had not forwarded the document. The appellant submits that the R.C. is based on the false and non-genuine documents.

The appellant was apprised that there is no challenge raised to the R.C. in the appeal, but he has not been able to appreciate the same. Appellant has not made any challenge to the order passed in the O.A. so far as the present appeal is concerned. It is not clear from the record if the appellant had ever challenged the order passed in the O.A. The appellant is neither prepared to receive any advice nor has engaged a Counsel to present his case in a proper manner.

In the written submission also the plea is that the appellant had handed over to the Bank for collection all shipping documents worth approx. US$ 7.44 lac, which is an admitted fact. The non-credit of the amount of these bills and non-return of the shipping documents to the appellants is a fact explained by him which is not rebutted or denied by the respondent-Bank. The demand to claim set-off of this amount in the recovery certificate was in the M.A. filed before the Tribunal below. It is stated that 1, 2 and 3 points of the impugned order have been discussed before this Tribunal. Reference to this has been made where the appellant has made submission while reading three different paragraphs of the impugned order. As per the appellant, the fourth point was never discussed in the judgment dated 28.2.2001. The appellant would plead that the Tribunal has included irrelevant and untrue facts about the application before the High Court, which was for the rendition of the account. Appellant would accordingly claim that the M.A. was filed in accordance with rules. It was pleaded that various untrue, false and fake documents were relied on when the order dated 28.2.2001 was passed by the Presiding Officer. It is alleged that the Presiding Officer also relied upon fake and non-genuine resolution reproduced. It is accordingly pleaded that the impugned order be quashed by this Tribunal.

As already noticed, there is no justification for this delayed approach in seeking withdrawal/cancellation/modification of the R.C. Though it is not on record, but the Counsel assisting the appellant was required to read the order passed by the High Court in the suit which had been filed by the appellant before the said Court about which reference is found in the impugned order. From the reading of the order, it is revealed that application filed by the Bank under Order 7 Rule 11, CPC was allowed and the suit filed by the appellant was dismissed because of the order passed by the DRT. The appellant had filed an appeal against this order passed by the Single Judge of the Hon'ble High Court, which, apparently, was also dismissed and the review filed against the same was also dismissed on 12.12.2014. The Counsel says that the review was not pressed as the appellant had filed the present M.A. and though it appropriate not to pursue two remedies simultaneously.

The submission made by the appellant in legal and factual background cannot be accepted. There is no justification given for making this approach with inordinate delay.

No valid ground is made out for modifying or withdrawing or cancelling the R.C. on the grounds as pleaded. The present appeal is dismissed as it is found to be lacking in merit. Since the appeal has been dismissed in limine, no orders are called for on application seeking condonation of delay (I.A. No. 594/2015).