Parvesh vs J and K Bank Ltd.

S.K. Gupta, Judge

Both the Appeals, CIA No. 9/1991 and CIA No. 11/1991 have arisen out of the same judgment and decree dated 31.10.1990 passed by the

Learned District Judge (Bank Cases) Jammu, one filed by the Jammu and Kashmir Bank Ltd. and the other by Randhir Singh. Both these appeals,

were admitted and ordered to be heard together by this Court, as is discernible from order dated 1.8.1997 in CMP No. 55/1991. Appeal filed by

Randhir Singh judgment debtor, stood, however, dismissed as abated by this Court vide order dated 10.8.2000 on the ground that during the

pendency of the appeal, legal representatives have been brought on record in the appeal filed by the decree holder. But since no steps were taken

by the legal representatives to continue the appeal, after that the appeal has abated. A Review Petition was preferred against this order before this

court, which was allowed and order dated 10.8.2000, referred to above, was recalled with a direction to the Registry to list the appeal No.

11/1991 for hearing alongwith Review Petition no. 351/2000 filed against the judgment and decree of this Court in CIA No. 9/1991 in allowing

the appeal and modified the judgment and decree of the Trial Court to the extent that the entire claim made by the appellant preferred in plaint shall

stand decreed with 12% pendete lite future interest. This is how appeal No. 11 /1991 alongwith Review Petition No. 351/2000 have been heard

together in terms of the order passed by this Court on 15.11.2001 and are being disposed of by this Common judgment.

The Review Petition has been preferred by the petitioners seeking review of Judgment/order dated 10.8.2000 passed by this Court in Civil 1st

Appeal No. 9 of 1991. By the aforesaid judgment and order, the appeal of the appellant was allowed.

It is urged by the petitioners that Vehicle No. 4806-JKQ financed by the Bank was seized by the Appellant Bank alongwith all documents

pertaining to the said Vehicle on 24.1.1985. This fact stood affirmed from the Certificate issued by the Bank. It is also stated that the Bank was

approached many a times to sell the vehicle by auction and the amount received be adjusted towards the loan amount of the petitioners. It is further

submitted that the amount outstanding against the petitioners on the date of seizure of the vehicle was Rs. 61,480.23. Had the vehicle been sold by

auction immediately after seizure, the entire outstanding amount would have been adjusted towards the loan account. The appellant Bank instead

initiated an action in the recovery of outstanding amount on account of loan advanced. Further submission of the petitioners is that the appellant

Bank could not claim the payment of the due loan amount and also keep the vehicle seized in its possession. The Vehicle had been allowed to

deteriorate because of the negligence of the Bank and is doing so, not only caused great loss to the petitioners, but also prevented the petitioners to

liquidate the loan amount by plying the Vehicle or by its sale.

These vital facts very much existed on record and within the knowledge of the Court, but seem to have escaped the attention of the Court and

which, according to the petitioners would have led the Court to pass an order different to the one passed in appeal.

It is pertinent to point out that where a Court by taking too stringent a view order looks the substantial rights of the party there is good ground

for review. It is not only the omission to consider the important facts which were on the record but he fact must be such as the judge himself

immediately on passing his order realized that he had overlooked and which is his opinion would have led him to pass an order materially different.

Facts on record mean fact on the face of the record having a direct relation to the order the Court was about to make, facts which were actually

within the Court's knowledge and which momentarily escaped its memory.

A Court, therefore, has jurisdiction to review its own order made erroneously. It can review its judgment on the ground that previous judgment

was wrong. In appeal, the judgment and decree of the Trial Court was challenged on twin grounds, firstly, the amount claimed in suit was reduced

and, secondly, pendete-lite interest was denied without any justification.

It is not disputed that the vehicle against which loan was advanced stood seized alongwith all documents on 24.1.1985. It was neither plied nor

sold by auction by the Bank to adjust the amount against outstanding dues. The Vehicle continues to remain in Custody of Bank. If that be the

position, there is no manner of doubt that the loss has been caused to the petitioner by this act of negligence of Bank. The Bank can not be

exempted from its liability for negligence on account of which the petitioners have been prevented from liquidating the loan of the Bank either from

the income generated by plying the vehicle or by its sale. There is unrebutted evidence of the petitioners that there was offer from two parties for

purchase of vehicle, one for Rs, 65,000/- and the other for Rs. 60,000/- immediately after its seizure by the Bank.

The Vehicle was seized alongwith documents on 24.1.1985. The amount outstanding against the petitioners at that time was Rs. 61,480.23 only

as per the statement of accounts placed on record by the bank. The delay in putting the vehicle to auction has caused loss to the

defendants/petitioners. They were not only deprived of its use, but also of its price by keeping it stationary. No explanation is forth coming from the

bank as to why the vehicle was not sold immediately after seizure. The evidence that an amount of Rs. 65,000/- by one customer and Rs. 60,000/-

another-customer was offered has not been rebutted. When the Bank did not put forth the case of contracting out its liability for the loss or

deterioration of the vehicle on account of its wanton negligence, it is not entitled to claim the amount under the documents. It has failed to mitigate

the loss.

Once the Vehicle was seized with documents by the Bank, the steps should have been taken to put it to auction, so that the amount fetched

could have been adjusted against the liability of the petitioners. This, however, has not been done. Taking the price of the Vehicle to be Rs.

65,000/- immediately after seizure by the Bank, the claim could have been satisfied, if necessary steps have been taken for sale by auction. The

Bank can not have both the payment of the debt/loan and also the Vehicle. The liability of the Bank was not more than Rs. 65,000/- at the time of

seizure of Vehicle. Keeping it stationary was due to the negligence attributable to the Bank. The claim of the Bank could have been satisfied, if

proper steps have been taken by the Bank immediately after the Vehicle was seized by putting into auction and adjusting the amount into the

account of the loanee. It was wrong/negligent on the part of the Bank to keep the Vehicle Stationary for such a long time before putting into

auction. That being so, the plaintiff Bank was not entitled to a decree, The judgment and decree dated 10.8.2000 passed by this Court is recalled

and the appeal of the Bank, decree holder, bearing No. CIA No. 9/1991, is dismissed. Whereas the appeal preferred by the legal representatives

of the deceased, Randhir Singh judgment debtor, CIA No. 11/1991, against the judgment and decree of the Trial Court dated 31.10.1990, is

allowed and judgment decree passed by the Trial Court is set aside and the suit of the decree holder, Bank is consequence thereof, dismissed.

Under the peculiar circumstances of-the Case, the parties are left to bear their own costs. Both the Review petition No. 351 /2000 and Civil

1st Appeal No. 11/1991 stand disposed of