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Judgment
Anil Kumar Srivastava,J
THE APPELLATE TRIBUNAL :
The instant appeal has arisen against order dated 3rd January, 2020 passed by Learned DRT-II, Hyderabad in IAIR No. 1508 of 2019 in I.A. 1199 of 2019 in O.A. 1716 of 2017 whereby application for recall of the order dated 29th March, 2019 passed in I.A. 1199 of 2019 was rejected by the Learned DRT.
I have heard the Learned Counsel for the Appellant and perused the record.
None is present for Respondents despite service.
It appears that O.A. 1716 of 2017 (Old O.A. 1059 of 2013) filed by the before the Learned DRT which was resisted by the Respondents. Mr. M. Virupaksha Rao, Manager of the Applicant, was examined as AW-1 thereafter Respondent examined 1st Defendant as DW-1 on 5th March, 2019 and filed I.A. 1199 of 2019. When the application came up for hearing on 29th March, 2019, Learned Counsel for the Bank submitted before the Learned DRT that the petition may be allowed on terms. Accordingly, the Learned DRT allowed I.A. 1199 of 2019 subject ot payment of Rs.500.00 towards costs; which was received by the Learned Counsel for the Bank.
Thereafter, an application was filed on recall of the order on the ground that the Learned Counsel for the Bank had no specific instructions for making the submission that the application may be allowed. Hence the order may be recalled.
Admittedly, the Learned Counsel for the Bank unconditionally accepted the cost of Rs.500.00 which was imposed by the Learned DRT on the application I.A. 1199 of 2019.
In the case of State of Punjab & Others -vs- Dhanjit Singh Sandhu 2014 (4) ICC 48, The Hon’ble Apex Court, in para 22, has held as under :
“22. The doctrine of “approbate and reprobate is only species of estoppels, it implies only to the conduct of parties. As in the case of estoppels it cannot operate against the provisions of a statute.
It is proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra State Road Transport Corporation -vs- Balwant Regular Motor Service, Amravati & Ors., AIR 1969 SC 329). In R.N. Gosain -vs- Yashpal Dhir, AIR 1993 SC 352, this Court has observed as under "Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."
Further in the case of (Union of India & Others -vs-N. Murugesan) decided on 7th October, 2021, The Hon’ble Apex Court, in para 26, held as under :
“26. These phrases are borrowed from the Scott's law. They would only mean that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principle of equity coming under the contours of common law. Therefore, he who knows that if he objects to an instrument, he will not get the benefit he wants cannot be allowed to do so while enjoying the fruits. One cannot take advantage of one part while rejecting the rest. A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and his presumption of knowledge while confirming an offer through his acceptance unconditionally.”
In the present case, when the Learned Counsel has received the cost unconditionally now the Appellant Bank cannot challenge that order.
Accordingly, the appeal, being Appeal No. 15 of 2020, lacks merit and is dismissed.
It would be appropriate if the Manager appears before the Learned DRT, Hyderabad, he may be examined on the same day subject to the convenience of the Learned DRT.
Copy of the order be supplied to Appellants and the Respondents and a copy be also forwarded to the concerned DRT.
File be consigned to Record room.
Copy of the Judgment/Final Order be uploaded in the Tribunal’s Website.