C.Rama Krishnan & Anr v. Oriental Bank of Commerece & O

JUDGMENT

¶1The petitioner way of present petition assailed an order dated 6th December 2004 passed by Appellate Tribunal in Appeal No.70/2002 (In OA 603 of 1996) whereby the learned Tribunal set aside the order passed by learned Debt Recovery Tribunal dated 26th December 2001 insofar as it related to appellants i.e. defendant no.3 and 4 therein and the OA was remanded back to DRT directing DRT to hold further inquiry into the issue of creation of mortgage in respect to the property of appellant (appellant no.3) (defendant no.3) and the bank was also given liberty to move an appropriate application before the learned DRT for proving the mortgage.

¶2This petition has not been filed by the appellant before the Appellate Debt Recovery Tribunal nor by the bank in whose favour the original order was passed by the Debt Recovery Tribunal. Rather the present petition has been filed by the respondent in whose respect the order was not disturbed by the learned Appellate Tribunal.

¶3The contention of the learned counsel for the petitioner is that the petitioner was not given an opportunity of hearing during the appeal and the order was passed by the learned Appellate Debt Recovery Tribunal without hearing the petitioner herein. It is submitted that though the petitioner was made a respondent in the appeal but no notice was served upon the petitioner. It is submitted by counsel for the petitioner that the impugned order adversely affected the petitioner since in the original order of the DRT, DRT had directed recovery of the amount on selling the mortgaged immovable property and hypothecated goods first and had not given directions for recovery of any amount from the petitioner herein.

¶4The arguments advanced by learned counsel for petitioner are misconceived. The appeal has been allowed only to the limited extent and the case has been remanded back to DRT also to the limited extent of recording evidence qua creation of mortgage and issue of standing as a guarantor by the appellant therein i.e. defendants no.3 and 4. The rest of the order passed by learned Debt Recovery Tribunal has not been disturbed. The order passed by the Appellate Debt Recovery Tribunal does not in any way prejudice the case of the present petitioner.

¶5Even otherwise, I find no force in the arguments of the counsel for the petitioner that the original order of DRT provided that no recovery should be made from the petitioner. The operative portion of the order passed by learned DRT dated 26th December 2001 reads as under:

"11. In the light of above submissions, I direct defendants no.1 & 6 to pay jointly and severally a sum of Rs.17,75,908/- together with costs and pendentelite and future interest @ 21% per annum with quarterly rests to the applicant bank within 30 days from today. In case of default this amount be recovered from the sale of mortgaged immovable property and hypothecated goods and in case entire amount is not realized from the sale proceeds balance amount be recovered from the sale of other assets/properties of defendants no.1 to 6. "

¶6It is settled law that in a petition under Article 227 of the Constitution of India the Court while exercising supervisory jurisdiction cannot correct mere error of facts or of law, unless it is shown that a grave injustice and gross failure of justice has occasioned thereto. The High Court has to exercise this supervisory jurisdiction in furtherance of justice and not to satisfy a litigant. The exercise of this power is guided by judicial consciousness and the Court has to refuse to exercise this power in favour of a party if no prejudice or injustice was being caused to the party.

¶7In the case in hand, the order passed by learned DRT qua petitioner herein has not been disturbed and only a limited aspect of the matter has been referred back by Appellate Tribunal to DRT concerned with the appellant before the learned Appellate Debt Recovery Tribunal.

¶8I find no force in this petition. The petition is hereby dismissed. No orders as to costs.

February 08, 2010

SHIV NARAYAN DHINGRA J. rd

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: February 01, 2009 Date of Order: February 08, 2010 + CM(M) 829/2005 % 08.02.2010 C.Rama Krishnan & Anr. ...Petitioners Through: Dr. Shyamlha Pappu, Sr. Advocate with Mr. D.N.Rao, Advocate & Mr. R.Krishnaamorthi, Advocate Versus Oriental Bank of Commerce & Ors. ...Respondents Through: Mr. M.K. Manav, Advocates for R-4 and 5. Mr. Mahesh K. Chaudhary, Advocate for R-1 JUSTICE SHIV NARAYAN DHINGRA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether judgment should be reported in Digest?