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Judgment
The application filed by the Bank seeking correction/modification/clarification of the recovery certificate is declined by the Tribunal below. Aggrieved against this order, the appellant Bank has filed the present appeal.
The Bank had filed a suit for recovery of a sum of Rs. 25,84,248/-. The O.A. filed by the Bank was allowed on 12.8.2004 and a recovery certificate was accordingly issued. When the Bank sought recovery of this amount, an objection was raised by the certificate-debtors (CDs), stating that the Tribunal below had issued recovery certificate. In accordance with judgment dated 12.8.2004 passed by in O.A. No. 3/2002 and in the judgment there is no order as to from which date the future interest was awarded. As per the CDs, the Bank was not entitled to any interest. Faced with this situation, the Bank had filed a miscellaneous application before the Tribunal seeking correction/modification/clarification of the recovery certificate.
The prayer in the M. A. was opposed by the CDs. It was urged that application filed under Section 26 of the RDDBFI Act for modification/correction of the recovery certificate was not maintainable as the recovery certificate was issued on the basis of order passed in the O.A. As per the CDs, the Tribunal would have power to withdraw the certificate or to correct clerical and arithmetical mistake and so the M.A. filed to seek correction/modification/clarification of the recovery certificate was beyond the jurisdiction of the Tribunal. Plea is also that this application was filed after five years of the recovery certificate having been issued. As per the CDs, the correction/modification was in the nature of amendment which could be done only by way of review of the order and there was no application filed for review of the order.
The Tribunal considered the submissions made before it and has rejected the M.A. Accordingly, the Bank has filed the present appeal.
The submissions that were raised before the Tribunal were virtually repeated before me. The Counsel for the Bank would draw my attention to the order passed in the O.A. where in the relevant portion of the relief clause the Tribunal had granted interest @10% p.a. from the date of filing of original application till the date of realization. It would be appropriate to reproduce the relief granted by the Tribunal below in the O.A. which is as under :
"3. Relief
From the above discussion applicant Bank is entitled to recover an amount of Rs. 25,84.248/- from the defendant Nos. 1 to 4 jointly and severally with interest and cost. Applicant Bank is also entitled to realise aforesaid amount with interest and cost from the sale of hypothecated goods and mortgaged property of the defendants.
As regard rate of interest from the date of filing this original application till realisation in my view considering the discretion of this Tribunal and the law enunciated by the Hon'ble Supreme Court in I(2002) BC 150 (SC): VII (2001) SLT 400 : 1V (2001) CLT 127 (SC): AIR 2001 SC 3095, Central Bank of India v. Ravindra Kumar interest at the rate of 10% per annum will be sufficient on the amount of Rs. 25,84,248/- from the date of filing this original application till realisation."
Having granted this relief, the Tribunal below went on to hold that the Bank is entitled to recovery certificate of an amount, which was claimed, with interest @ 10% p.a. but, apparently, omitted to record the time from which the same was payable or upto which time it was payable. This relief was clearly granted in the relief column. Unfortunately, the recovery certificate was got prepared on the basis of that part of the judgment in the O.A. without keeping in view the directions contained in the relief clause. The Counsel for the Bank would plead that this was an inadvertent mistake percolating into recovery certificate as well and hence, the recovery certificate issued on the basis of the order passed in the O.A. could be so corrected in exercise of power under Section 26 of the RDDBFI Act.
This prayer is opposed with full force by the Counsel for the respondents who would submit that this was not a case of clerical or arithmetical mistake which could be so corrected and this correction, if so ordered, would lead to modification of the recovery certificate, which will be beyond the jurisdiction and power of the Tribunal under Section 26 of the RDDBFI Act. In support of his plea that only clerical or arithmetical mistake can be corrected under Section 26 of the Act Counsel for the respondents has placed before me a judgment passed by this Tribunal as well as that of the Apex Court.
Counsel would first refer to the case of Punjab National Bank v. Rama Fibres Ltd. & Ors., II (2008) BC 51 (DRAT). This Tribunal in this judgment has observed that as per Section 26(2) of the RDDBFI Act the Presiding Officer has power to withdraw the certificate or correct any clerical or arithmetical mistakes in the certificate, but his power is limited to correction of clerical or arithmetical mistakes mistake only. It is noticed that this pro vision is akin to Section 152 of the Code of Civil Procedure which provides that the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. While defining clerical or arithmetical mistakes, it is observed that these connote those of adding up, subtraction, multiplication or division. The Tribunal has found that in the case before it there was no clerical or arithmetical mistake. While dismissing the plea the Tribunal has observed that the Bank, if aggrieved against the final order, had a right to prefer appeal, etc.
The Counsel for the appellant has also relied upon the case of Dwarka Das v. State of U.P. & Anr., 11(1999) SLT 69 : 11 (1999) CLT 26 (SC): (1999) 3 SCC 500. The Court in this case has considered the provisions of Sections 151 of 152 of Civil Procedure Code, which regulates correction of mistakes or errors in judgments, orders or decrees. Noticing the sweep of Section 152, CPC, it is observed that this section provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein of accidental slip or omission. The exercise of this power, as per the Court, contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The Court has observed as under:
"6.......... The settled position of law is that after the passing of the judgment, decree or order, the Court or the Tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing or effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections, modify, after or add to the terms of its original judgment, decree or order "
In this regard only reference is made to State of Punjab v. Darshan Singh, VI (2003) SLT 582 : IV (2003) CLT 375 (SC) : (2004) 1 SCC 328. The ratio of law laid down in the case of Dwaraka Das (supra) is virtually reiterated as follows :
"12. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction or mistakes by the Court of its ministerial actions and does not contemplate passing of effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the veiy Court or the Tribunal cannot and, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. The posers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party, if at all, is to file an appeal or revision before the higher Forum or review application before the very Forum, subject to the limitations in respect of such review. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the provisions of Sections 151 and 152ofthe Code even after passing of effective orders in the list pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. Similar view was expressed by this Court in Dwaraka Das v. State of M.P. and Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181."
The ratio of law which would emerge from the judgments of the Hon'ble Supreme Court is that Section 152 which is akin to Section 26 of the RDDBFI Act provides for correction of clerical or arithmetical arising from any accidental slip or omission. The correction which are contemplated thus are those which happens accidentally and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The present case is required to be examined in the light of this proposition of law.
If the slip in the part of the order pursuant to which the recovery certificate is issued is an accidental one, then, obviously, this falls within the purview of the power and jurisdiction of the Tribunal for correction. There is clear indication available form the order passed in the O.A. that it was due an accidental omission that this mistake has happened where the words "from the date of filing this original application till realisation" recorded in the relief clause granted by the Tribunal got omitted in the subsequent paragraph of order which led to the issuance of recovery certificate in this case. Such omission could not have passed as accidental omission if while granting relief the Tribunal below had not recorded that the amount with interest is payable from the date of filing of the original application till realisation.
Once these words are found recorded in the order while granting relief, it can reasonably be inferred that these words accidentally got omitted from the subsequent paragraph where it was to be repeated. If the intention of the Tribunal below had been not to grant the interest from the date filing of the original application till realization, the same was not required to be mentioned in the relief clause. This omission is not on the merits of the case, This omission cannot be taken as an intentional one. To me, the omission sounds pure and simple accidental omission or mistake. While granting relief the Tribunal held the Bank entitled to the interest from the date of filing of the O.A. till realisation and this will reflect the intention of the Tribunal which is now being taken as that no interest was allowed for the pendente lite and future period. The Tribunal below, in my view, has failed to notice this important aspect available in the final order itself while rejecting the application. In my view, there was no need for the Bank either to seek correction by filing the appeal for correction or review of the order passed in the O.A. Once this was granted as relief in the impugned order, it is to be taken as an accidental slip or mistake which ought to be corrected. Clear intention of the Tribunal is noticeable. It has awarded interest form the date of filing of the O.A. till realisation and this could easily be incorporated in the recovery certificate in exercise of power under Section 26 of the RDDBFI Act by correcting the recovery certificate so issued.
It would be inequitable to relieve the respondents herein of their liability to pay interest on a loan amount, which they have enjoyed, because of this accidental slip. It needs to be corrected to maintain purity of administration of justice. The present appeal is accordingly allowed. The Tribunal below is directed to carry out correction in the recovery certificate to bring it in tune with the relief granted in the O.A. by incorporating that the amount is payable with interest @10% p.a. from the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 17(A), 13(2) - Joint trial of proceedings - Symbolic possession of properties - Issuance of notice - Recovery of loan amount - Nine SAs date of filing of the O.A. till realization.
The appeal accordingly allowed.