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IN THE HIGH COURT OF CALCUTTA
Sudip Ahluwalia, J.
Manju Gupta and another - Petitioners
Versus
Andhra Bank and others - Opposite Party
C.O. No. 2999 of 2013
Decided On : 14-07-2015
DRT - Setting Aside Ex Parte Decree - Indivisibility of Decree - Joint and Several Liability - Applicability of Order 9 Rule 13 of CPC - Supervisory Jurisdiction of High Court Under Article 227 of the Constitution.
Fact of the Case:
Petitioners challenged the dismissal of their application to set aside an ex parte judgment and decree passed against them in a transferred application before the DRT. The ex parte judgment was also set aside in favor of another defendant in a separate application. The Petitioners contended that the ex parte decree was indivisible and should have been set aside against all the defendants.
Finding of the Court:
The Court held that the ex parte decree was indivisible as the defendants were held jointly and severally liable. The decree should not have been set aside only against one set of defendants as their liability was not separate from that of the defendant in whose case the decree was set aside. The DRAT was under the misconception that the ex parte judgment against the other defendant had not been set aside, which influenced its decision.
Issues: 1. Whether the ex parte decree was indivisible and should have been set aside against all the defendants? 2. Whether the DRAT erred in not considering the fact that the ex parte judgment had already been set aside against another defendant?
Ratio Decidendi: 1. The Court relied on the Supreme Court decision in "Bank of India v. Mehta Brothers and others" to hold that the ex parte decree was indivisible and should have been set aside against all the defendants since their liability was determined as being indivisible. 2. The Court held that the DRAT was under a misconception that the ex parte judgment against the other defendant had not been set aside, which influenced its decision. The DRAT would have taken a different view if it was aware of the fact that the judgment was indivisible and should have been set aside against all the defendants.
Final Decision: The Court allowed the revisional application, set aside the impugned judgment passed by the DRAT, and quashed the order of the DRT dismissing the petitioners' application to set aside the ex parte decree. The petitioners were permitted to contest the original claim application of the respondent bank in the Tribunal from the stage at which they were proceeded against ex parte earlier.
Sudip Ahluwalia, J.
This Revisional application has been filed against the judgement and order passed by the Chairman, Debts Recovery Appellate Tribunal, in Appeal no. 16 of 2007 arising out of the judgment and order passed by the Debts Recovery Tribunal-2 in Misc. Application no. 16 of 2001 of that Tribunal.
2. The background of the matter is that an ex parte judgment was passed against the Petitioners as well as the opposing respondent no. 3 in the Transferred application no. 251 of 1996, which had been originally filed by the Bank/Respondent no. 1 as Title Suit 85 of 1989 of the Court of the Ld. Asst. District Judge at Asansol, District Burdwan, and was subsequently transferred to the DRT.
3. The petitioners thereafter filed the aforesaid Misc. application in the DRT on the 13th of July 2000. They had sought to explain the delay in filing the application by contending that after the Ex parte judgment was passed on 13th March 2000, they came to know about the same only on 31st March and applied for Certified copy of the same. In the meantime the Respondent/Bank had filed an application for modification of the judgment without serving any notice of the same. Such application was allowed and the Certificate originally prepared in pursuance of the judgment on 12th April was modified on 16th May 2000. After learning about the modification for on 19th May, the petitioners applied for a certified copy of the same. The copies of the amended judgment and certificate were ultimately ready on 13th June and were thereafter delivered to the petitioners. They accordingly filed the miscellaneous application in the Tribunal on 13th July 2000.
4. However the Tribunal was not convinced by the contentions raised by the applicants and ultimately dismissed the same on 4th of August 2003. The dismissal was challenged by way of the Appeal no.16 of 2007, which was also dismissed by the DRAT on 26th of June 2013 after which the petitioners have approached this Court to assail the judgments of dismissal.
5. The application has been opposed not only by the Respondent no.1/Andhra Bank, but also by the Respondent no. 3 who incidentally was a co-defendant (no. 4) in the original suit. The said respondent filed his Affidavit-in-opposition on 27th of January, to which the petitioners filed their Affidavit-in-reply a week later. The strongest objection against the Revisional Application has come from the respondent no. 3 who has gone to the extent of alleging some measure of collusion between the Petitioners and the Bank authorities.
6. Before proceeding to consider the objections raised by the OP n. 3 it would be worthwhile taking note of the fact that he himself had filed a separate application under Order IX Rule 13 of the Code of Civil Procedure before the Debts Recovery Tribunal against the self-same original ex parte judgment passed against all the original defendants including the petitioners on 13th March 2000. It transpires that the said application has ultimately been allowed and the ex parte judgment and decree passed by the Tribunal on 13th March 2000 set aside as against the said OP who was the original defendant no. 4 in the suit. Consequently the original suit/transferred application is now reported to be pending between the Respondent Bank and the Respondent no. 3.
7. The contention of the respondent bank before this Court has been that once the ex parte judgment and decree which was passed against all the defendants has been already set aside at the instance of one of those defendants, so the same cannot become divisible for the purpose of its enforcement as against the others, since the liability of all the defendants was determined "jointly and severally liable" to pay up the amount decreed in favour of the bank.
8. The respondent no. 3 has however opposed the prayer of the petitioners on two grounds. Firstly that the petitioners have not approached this Court with clean hands, and Secondly that this Court in its supervisory jurisdict
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