Bank Of Maharashtra vs Chintamani Oil Industries And ...
2003 Latest Caselaw 141 Bom

ORDER

S.T. Kharche, J.

1. Heard Mr. Lala, learned counsel, for the applicant/original plaintiff. None appears on behalf of the respondents though they are duly served.

2. This revision is directed against an order dated 14-2-1995 passed below Ex. 47, rejecting the request of the applicant-bank for adjournment and also against an order dated 23-8-1996 passed below Ex. 56 rejecting the review application by the learned Civil Judge, Sr. Dn., in Spl. Civil Suit No. 71 of 1990.

3. The facts, in brief, are as under : The plaintiff is a nationalized bank and it has granted and disbursed a term loan of Rs. 45,000/- and cash credit facility to the respondents for Rs. 30,000/- on 18-2-1983, cash credit limit was enhanced up to Rs. 60,000/- on 30-10-1995 and the bill purchase limit was also granted to respondents/non-applicants to the extent of Rs. 25,000/- Original defendants 4 and 5 stood as guarantor to the said transaction and executed a Deed of Guarantee on 15-5-1987 in favour of the plaintiff. The term loan of Rs. 45,000/- was disbursed in favour of respondents 1 to 3 on 18-4-1987. In May 1987, cash limit was further enhanced to the extent of Rs. 2,80,000/- at the request of respondents 1 to 3 and the said amount was to carry interest at the rate of 16.5% per annum with quarterly rests. The applicant had granted over draft to respondents 1 to 3 total amounting to Rs. 5,60,000/- and the said over draft was also to carry interest at the rate of 16.5% per annum with quarterly rests.

4. The respondents 1 to 3 and 5 con-finned the balance due on 7-11-1987 being Rs. 8,63,460.60 exclusive of interest from 1-10-1987. The respondents 6 and 7 stood guarantors to the said transaction and executed a Deed of Guarantee on 2-8-1988. The respondents 2, 6 and 7 agreed to create a simple mortgage to secure loan. The amount outstanding was calculated at Rs. 13,42,371.40 and the respondents were called upon to make the payment but since they failed to discharge their liability the suit for recovery of the amount of Rs. 13,42,371 40 was instituted in the Court of Civil Judge, Sr. Dn., Wani.

5. The respondents/defendants filed their written statement on 21 -10-1992 and combated the claim in the suit.

6. The issues came to be framed on 19-1-1993 and on 30-4-1993 applicant/plaintiff examined two witnesses and the respondents/defendants sought adjournment for cross-examination and the matter was adjourned on their request vide application (Ex. 30) and was posted to 3-4-1993. Then plaintiff/bank could not produce the witnesses and sought adjournment on five-six dates due to transfer of the witnesses and ultimately on 14-2-1995 the plaintiff/bank filed an application for adjournment which came to be dismissed. Thereafter, the plaintiff had filed an application for review of the order on 6-10-1995 which was also rejected on 23-8-1996. Thus, the applicant/plaintiff has challenged both the orders in this revision.

7. Mr. Lala, learned counsel, contended that the applicant/plaintiff is a nationalized bank and the subject matter of the suit was recovery of money. It is contended that the learned trial Judge has committed an error in rejecting the application for adjournment and also the application for review of the order dated 14-2-1995. He contended that the respondents/defendants had also moved so many applications for adjournment and they were also equally responsible for protraction of the trial. He contended that the learned trial Judge, at the most, could have saddled some costs and allowed the application in the interest of justice. The learned counsel contended that the respondents had filed an application Ex. 31 on 22-4-1993 for making reference to this Court under Section 113 of the Civil Procedure Code for deciding the validity of Section 21-A of the Bariking Regulation Act and the said application, on hearing both the sides, came to be rejected on 14-2-1994. Thereafter, the respondents had filed another application Ex. 33 on 23-2-1994 seeking time to bring stay order from the High Court which was granted and the suit was fixed for hearing on 3-3-1994. On the same day, the applicant filed an application (Ex. 34) seeking permission to complete the evidence of the two witnesses, namely K. Janardhanan (P.W.1) and Dilip Suklikar (P.W.2) because their examination-in-chief was already recorded on 3-4-1993. Thereafter the matter was adjourned and subsequently the applicant/bank filed applications Exs. 35, 37 to 42. 44 to 46 and 47 for adjournment which came to be allowed. The learned counsel contended that the applicant/plaintiff alone cannot be blamed for protraction of the trial and, therefore, the learned trial Judge ought to have granted adjournment, for cross-examination of the witnesses who were already examined but they could not be kept present in their Court due to their transfers at Bombay and Nasik and also ought to have allowed to examine more witnesses. Hence, according to him, the impugned orders have resulted into miscarriage of justice.

8. On anxious consideration of the submissions of the learned counsel for the applicant, I am of the considered view that the approach of the learned trial Judge to the matter was erroneous. Order XVII, Rule (1) of Code of Civil Procedure provides that the Court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing, provided that no such adjournment shall be granted more than three times to a party during hearing of the suit. In every such case the Court shall fix a day for the further hearing of the suit and shall makes such order as to costs occasioned by the adjournment or such higher costs as the Court deems fit. Provided that-

(a) When the hearing of the suit has commenced, it shall be continued from day-today until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary.

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time.

(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witnesses, the Court may, if it thinks fit record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.

The aforesaid provision indicate that protraction of the trial of the suit should not be encouraged and the Court should try the suit as expeditiously as possible. In the present case, the applicant alone cannot be blamed for protraction of the trial because two witnesses, namely K. Janardhanan and Dilip Suklikar, on behalf of the applicant/bank were already examined on 3-4-1993 and their examination-in-chief was complete on that day. It were the defendants/respondents who had filed an application (Ex. 33) on 23-2-1994 for adjournment which was granted by the learned trial Judge. Thereafter on 3-3-1994 both the witnesses were present and they had come from Nagpur and Akola. On that day also, the defendants/respondents did not choose to cross-examine the witnesses for the reasons best known to them.

9. However, it would reveal that on 22-4-1993 an application (Ex. 31) was filed by the respondents/defendants for making reference to High Court under Section 113 of the Code of Civil Procedure for deciding the validity of Section 21-A of the Banking Regulation Act which was rejected on 14-2-1994. Thereafter, the respondents again filed an application (Ex. 33) on 23-2-1994 for seeking time to bring stay from the High Court and that application was granted and the matter was fixed for hearing on 3-3-1994, on which date both the witnesses of the plaintiff/bank were present and offered for cross-examination.

10. Considering the aforesaid facts, it would clearly reveal that the learned trial Judge did not consider the provisions of Order XVII. Rule (2)(a) and (c) which contemplate that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary and that where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such order as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid. Thus when the recording of the evidence commenced in the suit on 3-4-1993, the learned trial Judge ought to have recorded the evidence day-to-day, but he had granted adjournments to both the sides for a long period.

11. It appears that the learned trial Judge has lost sight of the provisions of Sub-clause (e) of Rule 1 of Order XVII of the Code of Civil Procedure which contemplates that where a witness is present in the Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, If it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid. In the present case, the examination-in-chief of the two witnesses was already commenced on 3-4-1993 and appears to have been completed on that day but the respondents/defendants did not choose to proceed with the cross-examination and instead filed an application for adjournment which came to be allowed. Thereafter, both the parties sought adjournment by filing applications which were liberally granted by the learned trial Judge by ignoring the provisions of Sub-clause (a) and (e) of Rule 1 of Order XVII of Civil Procedure Code.

It appears to be undisputed position that after the matter was adjourned on 30-4-1993 on the application of the respondents/defendants seeking time to undertake the cross-examination of the aforesaid two witnesses, the plaintiff/bank could not produce the witnesses in the Court and sought adjournments on five-six dates mainly because of the transfer of both the witnesses, Considering the circumstances, it would clearly reveal that the respondents/defendants also tried to protract the trial of the suit by filing so many adjournment applications. In such circumstances, the trial Court was. not right in refusing to adjourn the matter, Viewed from any angle, it would reveal that the impugned orders passed by the learned trial Judge cannot be sustained and, therefore, ends of justice would be met if the trial Court is directed to expedite the hearing of the suit within three months from the date of receipt of the judgment of this Court. The trial Court is also directed to allow both the parties to lead evidence in support of their contentions.

12. In the result, the civil revision application is allowed subject to payment of costs of Rs. 1,000/-. The parties are directed to appear before the trial Court on 10-2-2003. The trial Court is directed to fix a date for cross-examination of the witnesses of the applicant/bank who have already been examined and respondents/defendants are allowed to cross-examine them in case the respondents/defendants do not proceed with the trial by cross-examining the witnesses on the fixed date, their right to cross-examination would stand forfeited and the Court would be free to proceed with the trial and dispose of the suit according to law. Rule is made absolute in aforesaid terms.

C.C. expedited.