Raj Kumar Gupta vs Punjab National Bank And Ors.

Ranjit Singh, J

After participating in the Suit/Original Application proceedings for eight long years, the appellant chose to become absent w.e.f. 21st July, 2004. The Original Application filed by the Bank thereafter continued to spend for nine long years when it was allowed ex parte 17th June, 2013. Now when the appellant received a notice from the Recovery Officer (R.O.) calling upon him to appear and file affidavit of his assets, he has come forward to file M.A. No. 107/2013 for review/recall/set aside the ex parte order dated 17th June, 2013. Even this M.A. was filed with delay of 181 days. The appellant had accordingly also filed an I.A. (No. 817/2013) for condoning this delay in filing the M.A.

The Tribunal below, before taking the M.A. for consideration, has considered the prayer in application by the appellant for condoning the delay in filing the M.A.

The appellant came forward with a prayer to review/recall/set aside the ex parte final order dated 17th June, 2013 passed in Original Application No. 1158/1995 which prayer is rejected by the Tribunal below vide its order dated 24th March, 2015. The present Appeal is filed by the appellant to impugn the said order. The appellant has pleaded that when he received notice from the R.O., he learnt about some order passed in the Original Application for the first time. The appellant immediately instructed his Counsel to take steps that were required. The Counsel thereafter statedly carried out inspection of R.C. and Original Application files to learn about the ex parte order passed in the Original Application on 17th June, 2013. It was accordingly pleaded that there was no delay in filing the M.A. from the date of knowledge, but still by way of abundant, caution, the application seeking condonation of delay was filed.

This prayer was opposed by the Counsel for the Bank. The Tribunal thereafter considered the prayer made in the application seeking condonation of delay in filing the M.A. While doing so, the Tribunal below has taken note of the fact that initially a Suit for recovery was filed before the Hon'ble Delhi High Court in the year 1994. The Suit was transferred to DRT and was registered as Original Application 1158/1995. The Counsel for the appellant appeared in the Original Application and his presence was recorded on 19th April, 1996. The appellant thereafter pursued his case but suddenly stopped from appearing, when he was declared ex parte on 17th July, 1996. This order subsequently was recalled on 22nd July, 1996 and thereafter the appellant continued to appear in the Original Application proceedings till 21st July, 2004. From this date onward the appellant again failed to appear before the Tribunal and was proceeded ex parte. It was nine years thereafter that this ex parte judgment was pronounced on 17th June, 2013, but the appellant made no efforts either to appear or to challenge this order till the present M.A. was filed with a delay of 181 days.

The Tribunal, on the basis of record, has found that the appellant was aware about the proceedings in the Original Application and intentionally did not participate in the proceedings from the year 2004 onwards. The Tribunal accordingly found that the plea by the appellant to seek recall/review/setting aside of the order was based on sham plea.

The Tribunal also found that the appellant had raised contradictory plea while praying for condoning the delay in filing the M.A. Finding this to be a careless attitude which revealed clear gross negligence on the part of the appellant at every stage for which no plausible reasons were forthcoming for condoning the delay, the M.A. was rejected. It is also observed that it was a case of deliberate omission on the part of the appellant. The Tribunal accordingly dismissed the application seeking condonation of delay as well as M.A. seeking review/recall/setting aside of the ex parte order.

The Counsel for the appellant has pressed his Appeal rather too hard and in the bargain he has lost track of the relevant issues raised in this Appeal. When apprised of this, the Counsel loses his cool while making submission. Instead of explaining the reasons for which he failed to pursue his remedy in the Original Application and delay on the part of the appellant to make this approach, the Counsel starts making submission on merits to challenge the order passed in Original Application.

The Counsel would refer to the order passed by the Hon'ble Delhi High Court on 11th March, 1994 in the Suit vide which the High Court had required the Counsel for the Bank to bring precedent to show that the Suit filed under Order 37 was maintainable against a guarantor when the principal was not sued. The Bank, as per the Counsel, never came forward to satisfy this query of the Court about the maintainability of the Suit. The Counsel would also refer the guarantee deed, which is on record, to point out that the guarantee was governed by and construed according to English Law and the fact that the Guarantor agreed to submit to the jurisdiction of the English Courts. It is recorded in Guarantee deed that it was understood and agreed that none of the terms and provisions of the Guarantee may be waived, altered, modified or amended except in writing to be signed for and on his behalf. The Counsel accordingly could submit that the Courts in India and, for that matter, the Tribunal below did not have any jurisdiction to determine the liability of the appellant. It is also urged that the loan was granted by the London branch of the Punjab National Bank to a Company which was based in USA. The Counsel has also raised the plea about the maintainability of the Suit against the guarantor when the Bank had not proceeded against the borrower. The Counsel accordingly will contend that the appellant had a valid challenge to raise which has been wrongly negated by the Tribunal below.

So far as the plea on merit to challenge the impugned order is concerned, the Counsel has only urged that the appellant lost track of the case while the Original Application was pending before the Tribunal below. He had sought recall/review of the order not on the ground that he was not aware of these proceedings and, as such, his plea ought to have been considered by the Tribunal below on the basis of pleadings in the M.A.

When the Counsel is apprised that the present Appeal is filed only to challenge the order passed by the Tribunal below on 24th March, 2015 vide which his M.A. is dismissed and that the issue being raised on merit to challenge the order in Original Application cannot invite consideration in the present Appeal, he retorts in raised voice and starts addressing the Tribunal in a disrespectful manner.

The Counsel starts addressing the Tribunal as 'YOU' stating that you are this or that, which he keeps on repeating despite being asked to behave. The Counsel still continues to address the Tribunal in totally disrespectful manner. The Counsel was apprised to confine himself to the issue raised and not to make any other plea but he has failed to relent and has continued with his tirade violating the decorum of the proceedings. The Counsel has thus vitiated the sanctity of the proceedings. The Counsel has even not desisted from making uncalled for unfair comments about the Tribunal and the proceedings. The sober reminder to the Counsel to behave has had no effect on him. The insistence on the part of the Counsel to make submission on merits of plea in Original Application is declined as the Counsel has to confine himself to the plea which are relevant to decide the Appeal.

The Counsel even made an attempt to cite some judgments which were primarily on the merits of the decision rendered in the Original Application. The Counsel accordingly was apprised that these judgments would not be of any relevance to decide the issue raised in the present Appeal.

The issues which are pressed before me by the Counsel for the appellant were required to be raised while the Original Application was being decided. It is not that the appellant did not get any opportunity to do so in the Original Application Once the Suit was transferred, the appellant appeared in the Original Application, but thereafter failed to appear, when he was proceeded ex parte. Even this order was recalled in the year 1996 and the appellant continued to appear and represent himself before the Tribunal till the year 2004. Thereafter, none appeared on behalf of the appellant though the Original Application remained pending for nine years when it was decided on 17th June, 2013. Instead of explaining this negligent conduct on the part of the appellant, the Counsel has chosen to tread the path of confrontation and as such has given complete go-bye to the decorum and behaviours expected from a Counsel.

The issues which ought to have been raised or can be raised to challenge the order passed in the Original Application would have no relevance to decide the present Appeal. The appellant has to explain the delay on his part in filing the M.A. when he is noticed to have deliberately stopped appearing in the Original Application. No submissions are made in this regard and the attempt is to raise plea to challenge the order passed in Original Application. In fact in the entire M.A. no averment are made to justify the sudden absence on the part of the appellant to seek recall of ex parte order. Rather all pleas raised are on merits which were required to be raised while the Original Application was under consideration. There cannot be any need to apprise the appellant and its Counsel about the scope of Order 9 Rule 13. As per these provisions, the ex parte decree can be set aside if the Applicant satisfies the Court that summons were not duly served or that he was prevented by any sufficient cause from appearing when the Suit was called for hearing. No plea on these aspects is made before me.

The conduct shown by the Counsel is a clear case of contempt for which even action can be initiated. The Counsel who professes himself to be the President of Debts Recovery Appellate Tribunal Bar Association which is non-functional, has perhaps conducted himself in this manner being under the impression that this Tribunal cannot take or initiate action for contempt. The Counsel ought not to forget that it is possible to refer the case to the High Court for taking contempt action. This Tribunal in its magnanimity may decide to ignore this serious contemptuous conduct on the part of the Counsel but it should not be taken as sign of any weakness on the part of the Tribunal. The dignity of this institution is of paramount importance and has to be protected and guarded at any cost. To say the least, the Counsel has exceeded all bounds of decency and of moderation while addressing the Tribunal in this manner.

It would do some good to the Counsel if he acquaints himself with the responsibility of an Advocate. He ought to understand that the legal practitioners are not merely agents of the parties pleading a particular case, but are officials of the Court and are expected to assist in the administration of justice and to sustain unimpaired the dignity of Courts, by all means of their power (see Advocate General of Madras v. Amanullakhan, Advocate, Salem-1, AIR 1967 Mad. 162). The Court in the case of Anita Sonallal Ghai v. Snehalata wd/o Sohanlal Ghai alias Sohanlal Bansiram Kanwar, 1996 Cr. L.J. 3641, has held that Advocate owes a duty not only to his clients but also towards Court, of which he is an officer and, therefore, there are certain limitations which he must observe while drafting the contents of pleadings. Saying something making baseless allegation and insinuation reflecting the conduct of a judge was held amounting to professional misconduct in the case of Union of India v. Gulshan Bajwa, V (2003) SLT 444 : (2003) 7 SCC 545. The Supreme Court in the case has referred the matter to Bar Council of India. The Court in the matter of Babu Dwarka Prasad Mithal Vakil, Muzaffarnagar, AIR 1924 All. 253, has made some very pertinent observations in regard to the duty expected from the members of legal profession. It is observed that members of legal profession are under no duty to their client to make grave and scandalous charges either. Against Judges or the opposite parities on the mere wish of their clients. They are not puppets compelled to obey the dictates of their clients where matters of good faith and honourable conduct are concerned. They are responsible to the Court for the fair and honest conduct of a case. They are agents, not of the man who pays them, but are acting in the administration of justice, and in matters of this kind they are bound to exercise an independent judgment, and to conduct themselves with a sense of personal responsibility. If they fail to act with reasonable care and caution they are unfit to enjoy the privileges conferred upon them by law. The Court further held that serious breaches must be visited with punishment. Unwarranted attack on a Judge or a contempt by means of speech or writing was characterized as scandalisation and objectionable under the law of contempt in the case of Court on its own motion v. Ajit Singh, (1986) 2 I.L.R. P.& H. 5. The parties to the litigation and Counsel may have some latitude of over-expression in pressing of their case, but they have to be careful and cannot be permitted to transgress the limits of decency of propriety to impute a bad faith to the Judge in open Court, outside the Court or in any application, grounds of Appeal, revision, etc. This was held to be treading dangerous path. It is the prestige of the Court which is at stake, not the individual prestige of a Judge. In M.Y. Shareef v. Hon'ble Judges of the High Court of Nagpur, AIR 1955 SC 19, the Court has observed that a section of the Bar is under an erroneous impression that when a Counsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court. The Court held that this misconception has to be rooted out by a clear and emphatic pronouncement and it should be widely known that Counsel who sign applications or pleadings containing matter scandalizing the Court without reasonably satisfying themselves about the prima facie existence of adequate ground therefore, are themselves guilty of contempt of Court. The Court in the case of Asharam M. Jain v. A.T. Gupta, 1983 (SLT Soft) 387 : (1983) 4 SCC 125, has held that the strains and mortification of litigation cannot be allowed to lead litigants to tarnish, terrorize and destroy the system of administration of justice by vilification of Judges. As observed by the Court, it is not that the Judges need to be protected; Judges may well take care of themselves. It is the right and interest of the public in the due administration of justice that has to be protected.

It is never late in life to learn as life is a learning process. The Counsel is well advised to carry out study about roles and responsibility of an Advocate. The Courts cannot be expected to show magnanimity on every indiscretion. This time the Tribunal consider it appropriate to ignore this conduct showing magnanimity.

No worthwhile explanation has been furnished to explain the delay of 181 days in filing the M.A. for recall/review of the ex parte order. No submission at all are made by the Counsel to explain as to why the appellant failed to appear before the Tribunal for a period of nine years. Simply stating that the appellant lost track of the case would not be a sufficient justification to ignore the gross negligent conduct on the part of the appellant. The Tribunal below has found this conduct to be a deliberate attempt.

Though there was no need or requirement, but, still, in order to satisfy myself, I have gone through the order passed in the Original Application. The appellant was a guarantor for the payment of the dues to Punjab National Bank, in the case State Bank of India, London acting for and on behalf of Punjab National Bank had made a demand from IBPD and IDC for complete, effectual and proper adjudication and had been joined as a co-plaintiff in the Suit. The appellant was served and he had absented w.e.f. 21st July, 2004. He had not adducted any evidence. The Bank, on the other hand, had filed evidence. The Tribunal thereafter formulated various issues requiring adjudication and had gone on to even consider the plea whether the Original Application was maintainable against the appellant. Accordingly, it is not even possible to urge that the pleas which the appellant had raised before the Tribunal below were not considered while allowing the Original Application.

I have taken notice of these facts only for the purposes of my satisfaction and thus may not be taken as expression of any opinion on the merits of the decision rendered in the Original Application, which is not under challenge in the present Appeal.

Before closing, I may wish to observe that it took eighteen years for the Tribunal to decide this Original Application which commenced its journey before the High Court of Delhi in the year 1994. Any re-opening of the issues, which ought to have been raised while the Original Application was pending, may lead to defeat the very purpose of these enactments which is to ensure speedy recovery. A person cannot be permitted to take benefit of his gross negligence and such approach if noticed is required to be curbed. I find that the order passed by the Tribunal below does not suffer from any legal infirmity which would call for any interference in the present Appeal and the same is accordingly dismissed in limine.