Vijay Chadha v. Central Bank of India & Ors

Order Dasti. T.S. THAKUR,J ARUNA SURESH, J JANUARY 23, 2008 anb

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 2683/2006 Date of Decision: rd January, 2008 SH. VIJAY CHADHA ..... Petitioner Through Mr. Yasobant Das, Sr. Adv. with Mr. A.K. Srivastava, Mr. Arvind Kumar Tiwary, advs. versus CENTRAL BANK OF INDIA & ORS. ..... Respondents Through Mr. A.K. Matta, Sr. Adv. with Ms. Reema Khorana, adv. for R-1. Mr. Jagdeep Anand,adv. for R-4 &5 CORAM: HON'BLE MR. JUSTICE T.S. THAKUR HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? Not Necessary 2. To be referred to the Reporter or not? Not Necessary 3. Whether the judgment should be reported in the Digest? Not Necessary Per Thakur, J (Oral): This writ petition arises out of an order dated 30th November, 2005 passed by the Debt Recovery Appellate Tribunal, Delhi whereby Miscellaneous Appeal No. 300/2002 filed before it by respondents No. 4 & 5 in this petition has been allowed and an ex parte decree passed by DRT-I set aside qua the said respondents only. The petitioner's grievance is that although he was a party to the appeal mentioned above and had filed an appropriate reply to the same in which it was inter alia contended that the ex parte decree passed by DRT-I ought to be set aside not only qua appellants/respondents No. 4 & 5 in the present writ petition but also qua the petitioner yet the Tribunal had neither noticed the said prayer nor dealt with the submission that the decree was indivisible within the meaning of the proviso to Order 9 Rule 13 of the Code of Civil Procedure. 2. Appearing for the petitioner, Mr. Das, learned senior counsel made a two fold submission before us. Firstly, he contended that the question whether or not the decree could be set aside only against the appellants in the appeal filed before the appellate tribunal or had to be set aside against the rest of the respondents also, being an indivisible decree within the meaning of proviso to Order 9 Rule 13 of the CPC ought to have been addressed by the appellate Tribunal and a proper view on the same taken. The Tribunal had not, however, examined the said matter and thereby deprived this Court of the advantage of its opinion on the subject. The Tribunal could, therefore, argued the learned counsel, be asked to examine the said aspect and pass a fresh order on the request made by the petitioner for setting aside the decree qua him also. 3. Alternatively, it was submitted that the decree in question was an indivisible decree within the meaning of proviso to Order 9 Rule 13 of the CPC and could, therefore, be set aside qua respondents 4 and 5, only if, it was set aside also against the petitioner herein. 4. On behalf of the respondents, it was, on the other hand, argued by Mr. Matta that the decree was not indivisible as argued by the petitioner and that the same had attained finality as no appeal had been filed against it. The question of setting aside the decree qua the petitioner just because it was being set aside against the respondents No. 4 & 5, did not, therefore, arise. He submitted that so long as the decree against the principal borrower viz; respondent No. 2 remained undisturbed, the liability of the petitioner as guarantor, being co- extensive with the liability of the said respondent, could not be disputed. He further argued that the money decrees were, as a general rule divisible in nature and that the proviso to Order 9 Rule 13 would not apply in cases where a decree could be passed by the tribunal against only some of the defendants in the suit. That was, according to him, the position in the instant case also, inasmuch as the tribunal could, while deciding the suit decree the same against some while dismissing it against some other depending upon whether the plaintiff was able to substantiate the claim against the said defendants. Reliance was, in support, placed by Mr. Matta upon the decisions of this Court in Mehta Borthers & Ors. Vs. Bank of India and Another 2001 II AD (Delhi) 506. Reliance