Vaneeta Sachdeva vs Ld. Registrar, Drt And Ors

P.K. Bhasin, J

The appellant feeling seriously hurt by totally unwarranted observations and remarks made by the learned Presiding Officer of DRT-I, Chandigarh in his ex parte order dated 22.9.2017, and which damaging remarks according to the appellant were aimed at her only, has invoked the supervisory jurisdiction conferred upon the Chairperson of this Appellate Tribunal under Section 17A of the Recovery of Debts and Bankruptcy Act, 1993 ('Act of 1993' in short) over the Debts Recovery Tribunals and their Presiding Officers for expunging those offending remarks/observations. The respondent Bank had filed one Original Application (O.A.) under Section 19 of the Act of 1993 against the present petitioner and some others seeking a recovery certificate for a sum of Rs. 22,59,10,950/- plus interest which was public money allegedly payable to the Bank by the defendants in the O.A. including the petitioner herein. That much amount was stated to be outstanding in the loan account of the borrower M/s. Pari India, a partnership Firm, which was impleaded as defendant No. 1 in the O.A. The petitioner herein was impleaded as a guarantor for the repayment of the loan advanced by the respondent Bank to the said Firm. The Bank's O.A. was taken up for ex parte consideration by the learned Presiding Officer of DRT-I, Chandigarh on 22.9.2017 and on that date the learned Presiding Officer ordered issuance of notice of the O.A. to the defendants returnable on 18.12.2017. Since the Bank had also some interim ex parte directions/reliefs that prayer was dealt with by the learned Presiding Officer and the relevant observations made in the order while dealing with the interim reliefs sought for by the Bank are re-produced below:

"Heard on interim relief.

Haying heard the learned Counsel for the applicant Bank, I have come to the conclusion that a prima facie case in favour of the applicant Bank is made out. The balance of convenience also lies in favour of applicant Bank, therefore, I am of the considered view that if ex parte interim relief is not granted, applicant Bank may suffer irreparable loss.

Since the Counsel for the applicant Bank has argued that a huge amount of more than Rs. 22 crore is due towards the defendants for which suit is pending against them. There are all apprehension that the defendants in order to frustrate recovery proceedings may flee the country to evade liability as the Bank is most likely to have decree against them

Since the defendants are hiding and the Bank is unable to contact them, Counsel for the applicant pressed hard that immediate directions be issued to the concerned authority for revoking passport taking support from law laid down by the Hon'ble Madras High Court in ICICI Bank Limited v. Debts Recovery Appellate Tribunal whereby the Hon'ble High Court has observed that ".....Debts Recovery Tribunals are empowered to direct the borrower of guarantor to surrender his passport to the Tribunal--Both the Acts are special enactments made by the Parliament by virtue of powers conferred under List of VIIth Schedule to the Constitution. When the Passport Act was enacted, RDDB & FI Act was not in force. Therefore, there was on occasion for the Parliament to make any provisions conferring power on the Passport Authority to order impounding of passport in case a borrower or guarantor fails to repay the loan and Bank anticipated or apprehended that such borrower or the guarantor may leave the country thereby successfully evading the payment Provision of Passport Act shall also not exclude the inherent power of DRT to pass any interim order to meet the ends of justice.

I have observed that certainly the dues of the Bank is ultimately national funds and should not be stuck up by mighty affluents who are otherwise living lavish life for which they showing rosy picture having no worth for the cause of society. With the changing time and scenario in the social, cultural, economic and other fields, it appears some time that law laid down by the legislative are either to be old or nor being fully equipped to cope up with the changing scenario in the respective filed of life but the natural law theory which ultimately prevails, has kept the human being guided to which jurists and law makers are also not aliens. Being aware of the changing scenario, sometimes, the loopholes/gaps which are created should have to be plugged immediately before they inflict more loss. Law is not like a hard stone but just like a wax. If applied to correct the society to curb malice, it turned like a hard stone but at the same time, it is wax to heal those incapable laws yet to be rectified and to be applied to cover up lacunae. Your Lordships as above has already enlightened that at the time of making of Passport Act, RDDB & FI Act was not in force but thereafter coming into force the much effective SARFAESI Act even did not deter these defaulters and once this act has been enforced, economic defaulters should not be considered less man the economic terrorists and not be allowed to misuse the process of law and lacunae and other routs for their self purpose at the stake of state funds. Certainly the changing scenario will ultimately affect each and every citizen of the country irrespective of caste, creed and culture. Therefore, it becomes necessary to implement rules through orders of the Courts to safeguards interest of the nation otherwise these special enactments too will loose their luster. Therefore, I agreed with the Counsel for the applicant Bank: that these are real enemies, roaming inside the country and are termite on the national resources, unjustifiably dragging the Bank into litigation prolonging the same by adopting every mode.

Hence, being duly enlightened and guided by the set guidelines by the Hon'ble Punjab and Haryana High Court in CWP No. 10071 of 2016, titled Sanjay Saini and Ors. v. The Debts Recovery Tribunal-I, Chandigarh, after going through the peculiar facts of the case in hand, we are satisfied and the dues of the Bank are not adequately safe as the securities are not sufficient and there is apprehension that the respondent/defendants would try to frustrate the decree and would try to abscond once they leave the country.

But since the Tribunal has no such power to impound the passports even then to safeguard the interest of lending creditors for whom not only the common man but the legislature too has amended the provision to deal firmly for the recovery in the overall interest of growth of nation, therefore, in the light of the above discussions, the defendants are restrained from leaving the country without prior information to the Court."

The appellant feels mat the learned Presiding Officer was not at all justified in dubbing the appellant as an 'economic terrorist' and to say that the defendants, which included the appellant-defendant also, were 'hiding'. These expressions convey to the general public that the appellant is an economic terrorist and is hiding as if she had committed some very serious and there was nothing on record to justify making such observations. Learned Counsel for the petitioner also submitted that this not the only instance where this particular Presiding Officer has used undesirable and harsh expressions and in fact he is in the habit of criticising borrowers as well as Government officials and in one case the aggrieved police officer was compelled to file a suit for damages against the Presiding Officer of DRT-I, Chandigarh for maligning him by misusing his authority as the quasi judicial authority and in that suit he had claimed judicial immunity. It was also contended that in another case, reference to which has been made in the impugned order itself by the Presiding Officer the Bank concerned has also come up before this Tribunal for expungement of very harsh observations made against the Bank officials in that case of James Hotel of Chandigarh. To support the submission that these expressions used by the Presiding Officer in his ex parte order passed on the very first date of hearing while directing issuance of notice of the O.A. are liable to be expunged as they are causing great injury to the reputation of the appellant the learned Counsel for the appellant Mr. Sanjeev Bhandari, drew the attention of this Tribunal to the following paragraphs from the judgment of the Hon'ble Supreme Court in the judgment of Om Parkash Chautala v. Kamwar Bhan & Ors., IV (2014) SLT 17 : IV (2014) CLT 197 (SC) : (2014) 5 SCC 417:

"1. Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the down trodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. One would like to perceive it as an honour rather than popularity. When a Court deals with a matter that has something likely to affect a person's reputation, the normative principles of law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything adverse is said.

We have commenced with aforesaid prefatory note because the centripodal question that has eminently emanated for consideration in this appeal, by special leave, is whether the judgment and order passed by the learned Single Judge of the High Court of Punjab and Haryana at Chandigarh in C.W.P. No. 12384 of 2008 commenting on the conduct of the appellant and further directing recovery of interest component awarded to the employee, the first respondent herein, from the present appellant and also to realise the cost and seek compensation in appropriate legal forum, including Civil Court, though the appellant was not arrayed as a party to the writ petition, and denial of expunction of the aforesaid observations and directions by the Division Bench in L.P.A. No. 1456 of 2009 on the foundation that the same are based on the material available on record and, in any case, grant of liberty to claim compensation or interest could not be held to be a stricture causing prejudice to the appellant who would have full opportunity of defending himself in any proceeding which may be brought by the respondent for damages or recovery of interest, is legally defensible or bound to founder on the ground that the appellant was not impleaded as a respondent to the proceeding. Be it noted, the Division Bench has also opined that the observations made by the learned Single Judge are not conclusive and no prejudice has been caused to the appellant, the then Chief Minister of the State of Haryana.

In Testa Setalvad and Am. v. State of Gujarat & Ors., the High Court had made certain caustic observations casting serious aspersions on the appellants therein, though they were not parties before the High Court. Verifying the record that the appellants therein were not parties before the High Court, this Court observed:

"It is beyond comprehension as to how the learned Judges in the High Court could afford to overlook such a basic and vitally essential tenet of the 'rule of law', that no one should be condemned unheard, and risk themselves to be criticized for injudicious approach and/or render their decisions vulnerable for challenge on account of violating judicial norms and ethics." And again:

"Time and again this Court has deprecated the practice of making observations in judgments, unless the persons in respect of whom comments and criticisms were being made were parties to the proceedings, and further were granted an opportunity of having their say in the/matter, unmindful of the serious repercussions they may entail on such persons."

In State of West Bengal & Ors. v. Babu Chakraborthy, the principle was reiterated by stating that the High Court was not justified and correct in passing observations and strictures against the appellant Nos. 2 and 3 therein without affording an opportunity of being heard.

"It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct."

On a studied scrutiny of the judgment in entirety we have no hesitation in holding that the observations made by the learned Single Judge were really not necessary as an integral part for the decision of the case as stated in Mohammad Nairn's case. Needless to say, once the observations are not justified, as a natural corollary, the directions have to be treated as sensitively susceptible.

In this context, it is necessary to state about the role of a Judge and the judicial approach, In State of M.P. v. Nandlal Jaiswal, Bhagwati, C.J., speaking for the Court expressed strong disapproval of the strictures made by the learned Judge in these terms:

"We may observe in conclusion that Judges should not use strong and carping language while criticising the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice."

In A.M. Mathur v. Pramod Kumar Gupta & Ors., the Court observed that judicial restraint and discipline are necessary to the orderly administration of justice. The duty of restraint and the humility of function has to be the constant theme for a Judge, for the said quality in decision making is a much necessary for Judges to command respect as to protect the independence of the judiciary. Further proceeding the two-Judge Bench stated thus:

"Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the Judge has failed in these qualities, it will be neither good for the Judge nor for the judicial process."

In Amur Pal Singh v. State of Uttar Pradesh & Anr., it has been emphasized that intemperate language should be avoided in the judgments and while penning down the same the control over the language should not be forgotten and a committed comprehensive endeavour has to be made to put the concept to practice so that as a conception it gets concretized and fructified.

It needs no special emphasis to state that a Judge is not to be guided by any kind of notion. The decision making process expects a Judge or an adjudicator to apply restraint, ostracise perceptual subjectivity, make one's emotions subservient to one's reasoning and think dispassionately. He is expected to be guided by the established norms of judicial process and decorum. A judgment may have rhetorics but the said rhetoric has to be dressed with reason and must be in accord with the legal principles. Otherwise a mere rhetoric, especially in a judgment, may likely to cause prejudice to a person and Courts are not expected to give any kind of prejudicial remarks against a person, especially so, when he is not a party before it. In that context, the rhetoric becomes sans reason, and without root. It is likely to blinden the thinking process. A Judge is required to remember that humility and respect for temperance and chastity of thought are at the bedrock of apposite expression......

Thus, a Judge should abandon his passion. He must constantly remind himself that he has a singular master "duty to truth" and such truth is to be arrived at within the legal parameters. No heroism, no rhetorics.

Another facet gaining significance and deserves to be adverted to, when caustic observations are made which are not necessary as an integral part of adjudication and it affects the person's reputation - a cherished right under Article 21 of the Constitution...........

In view of the aforesaid analysis, we have no hesitation in holding that disparaging remarks, as recorded by the learned Single Judge, are not necessary for arriving at the decision which he has rendered, the same being not an integral part and further that could not have been done when the appellant was not a party before the Court and also he was never afforded an opportunity to explain his conduct, and the affirmation of the same by the Division Bench on the foundation mat it has not caused any prejudice and he can fully defend himself when a subsequent litigation is instituted, are legally unacceptable. Accordingly, we expunge the extracted remarks.........."

Mr. Bhandari, in fact went to the extent of making a submission that the manner this Presiding Officer giving vent to his personal feelings and maligning borrowers and was passing orders in authoritarian fashion shows that he is suffering from the vice of 'incapacity' and has rendered himself liable to be not retained in service and, therefore, I should recommend to the Government for his removal and as far as the appellant is concerned she had stated in the memorandum of appeal itself that she was reserving her right to take appropriate legal action against the Presiding Officer for using the offending language for her in his order.

Mr. C.S. Pasricha, learned Counsel for the respondent Bank, had not tried to defend use of the offending expressions by the Presiding Officer in the ex parte order and had submitted that these expressions could have been easily avoided or different sober expressions could have been used by the learned Presiding Officer and that qua the appellant the expression 'economic terrorist' etc. with which the appellant is feeling hurt can be expunged. It was, however, also submitted that otherwise no sympathy is to be shown to the appellant since she owes crores of public money to the Bank which she and other defendants in the O.A. are withholding unjustifiably.

As far as the grievance of the Bank that the appellant and other parties in the Bank's O.A. owe crores of rupees to the Bank is concerned it will be for the DRT to look into that aspect while deciding the O.A. However, I am full agreement with the submissions of the Counsel for the appellant that use of offending expressions, which have been highlighted above was unwarranted and not at all justified and the judgment of the Supreme Court cited by the appellant's Counsel and particularly the paras extracted from that judgment justify this conclusion of mine and should have, been kept in mind by the learned Presiding Officer while using expressions in his order for which there was no occasion to be made. There was no occasion for the learned Presiding Officer of the DRT to use the offending expressions at the stage of ex parte hearing and in fact the use of the words 'economic terrorists' would not have been justified at all even after full trial even if the O.A. were to be allowed and it was to be concluded that the defendants in the O.A. were not justified in not repaying the loan money to the Bank. I think that much is enough to expunge the offending observations in the impugned order which convey mat the defendants in the Bank's O.A. are 'economic terrorists' and 'these are real enemies, roaming inside the country and are termite on the national resources', and, therefore, the same would stand expunged. This petition stands disposed of accordingly. The DRT be sent a copy of this order.