Union Bank Of India And Another vs Harsrat Qureshi

Ramesh Ranganathan, CJ

While we find force in the submission of Mr. T.A. Khan, learned Senior Advocate, that this Court would not, in proceedings under Article 226, ordinarily take upon itself the task of fixing the repayment schedule of a loan taken by a borrower from a bank, or to grant them periodic instalments, for these all are the matters for Bank to decide, the fact, however, remains that the learned Single Judge has, in the order under appeal, recorded that the matter was being disposed of, with the directions referred to therein, with the consent of all parties.

While Mr. T.A. Khan, learned Senior Counsel, would submit that the consent given by the appellant was limited only to the bank providing instalments, and not for the Court to itself determine such instalments, the order under appeal does not reflect any such limited concession having been given on behalf of the appellant. In State of Maharashtra vs. Ramdas Srinivas Nayak : (1982) 2 SCC 463, the Supreme Court observed:

".......When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". Per Lord Atkinson in Somasundaran v. Subramanian A.I.R. 1926 P.C. 136 We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is' incumbent, upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. Per Lord Buckmaster in Madhusudan v. Chanderwati A.I.R. 1917 P.C. 30 That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.

In Rev. Mellor 7 Cox. C.C. 454 Martin B was reported to have said "we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity".

In King Emperor v. Barendra Kumar Ghost 28 C.W.N. 170 said:

"...these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticized or circumvented; much less is it to be exposed to animadversion."

In Sarat Chandra v. Bibhabati Debi 34 C.L.J. 302. Sir Asutosh Mookerjee explained what had to be done:

....It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment.

So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.

....emphasis supplied"

A the Division Bench is bound to presume that what is the recorded in the order under appeal, regarding a concession having been made, is correct, any grievance which the appellant may have, regarding the manner in which their consent was recorded, can only be addressed on their invoking the review jurisdiction of the learned Single Judge, and by bringing to his notice the limited concession which they claim to have given.

Granting liberty to the appellant to seek review of the order under appeal and, if needed be, to approach this Court later, the Special Appeal is dismissed. No costs.