Omega Ag Seeds (India) Ltd. vs Bank Of Baroda
2003 Latest Caselaw 4 Bom

JUDGMENT

R.M. Lodha, J.

1. The order dated 21-5-2002 passed by the Debt Recovery Appellate Tribunal is impugned by the present petitioners.

2. The petitioners herein were original defendants in Suit No. 4074/93 filed by the present respondents original plaintiffs for recovery of amount of Rs. 26,44,038 with interest at the rate of 23.75 per cent per annum from 1-10-1993 till payment or judgment as per the particulars of claim in Exhibit "N". The said suit was transferred to Debt Recovery Tribunal under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, "Act of 1993") in the year 1999. After the transfer, the suit was registered as original Application No. 2697/1999. Bereft of unnecessary details, for our present purposes, it may be noted that on 3-1 -2002 the Debt Recovery Tribunal allowed the Original Application against the defendants with half costs. The Debt Recovery Tribunal directed the defendants to jointly and severally pay to the applicant-Bank an amount of Rs. 18,47,828 with interest at the rate of 21.5 per cent per annum with quarterly rest from 1-1-2002 till full realisation. The Debt Recovery Tribunal declared that the outstanding is secured by the validly created equitable mortgage of the immovable properties, details of which were given in the order and it was further declared that the defendants 2 to 6 would be entitled to redeem the mortgage of their respective properties by paying the amount within three months from the date of issuance of recovery certificate. On 21-1-2002 review petition was filed by the present petitioners-defendants, seeking review of the order dated 3-1-2002. Inter alia one of the grounds set up in the review application was that the Debt Recovery Tribunal ordered interest payable at the rate of 21.5% per annum with quarterly rest from 1-1-2002 which was not even prayed for by the plaintiff Bank. The Plaintiff Bank responded to the said review application and presently the review application is pending. In the meanwhile on 26-4-2002 the Bank made an application seeking amendment in the Original Application. By way of amendment the Bank sought to amend the prayer clause by adding the words "quarterly rest" by way of abundant caution. The Debt Recovery Tribunal on that day itself rejected the application for amendment made by the Bank. Aggrieved thereby the Bank preferred appeal before the Debt Recovery Appellate Tribunal, Notice of the appeal was served on the petitioners-defendants on 10-5-2002 and the Bank moved the Appellate Tribunal for interim reliefs in the appeal on 13-5-2002. The appeal was heard and disposed of by the Appellate Tribunal vide judgment dated 21-5-2002. The Appellate Tribunal allowed the appeal, set aside the order dated 26-4-2002 passed by Debt Recovery Tribunal and permitted the Bank to amend the Original Application within one week. The cost of Rs. 20,000 was imposed by the Appellate Tribunal on the Bank as a condition precedent for hearing of the review application filed by the defendants (petitioners herein). It is the order passed by the Debt Recovery Appellate Tribunal which is impugned before us.

3. Ms. Rajni Iyer, the learned counsel for the petitioners, urged that in view of decree already having been passed by the Debt Recovery Tribunal, the amendment application moved by the Bank could not have been allowed. It was contended that the Supreme Court has held that the Courts cannot award compound interest after the filing of the suit with or without rest and, therefore, the Tribunal ought not to have allowed the amendment application. The learned counsel submitted that by allowing the amendment application, the Appellate Tribunal has virtually passed an order which would render the review application made by the petitioner redundant and on this ground also the impugned order deserves to be set aside.

4. On the other hand, Mr. Samdani, the learned counsel for the respondent Bank supported the order of the Appellate Tribunal. He also urged that the disposal of amendment application by the Appellate Tribunal is without prejudice to petitioners review application and all contentions raised in the review application by the petitioners shall be heard and considered by the Debt Recovery Tribunal in accordance with law.

5. Having reflected over the matter thoughtfully, we are of the view that no case for invocation of extraordinary jurisdiction is made out for interfering with the order passed by the Appellate Tribunal. The perusal of the original application, particularly prayer made therein would show that the Bank has prayed for a decree against the defendants jointly and severally in an aggregate sum of Rs. 26,44,038 as per particulars of the plaintiffs claim being Exhibit "N" annexed with the application with further interest thereon at the rate of 23.75 per cent per annum from 1-10-1993 till judgment and thereafter further interest at the same rate since the advances were granted to the 1st defendants for commercial purposes. In the body of the plaint (Original Application) various documents executed by the defendants by way of security in favour of the Bank have been referred which according to the plaintiff Bank suggest that the defendants agreed to pay interest at the rate of 9.5 per cent per annum over the RBI subject to minimum of 21.5 per cent per annum which quarterly rest. The Tribunal passed the judgment directing the defendants to jointly and severally pay the Bank an amount of Rs, 18,47,828 with interest at the rate of 21.5 per cent per annum with quarterly rest from 1-1-2002 till full realisation. We are not expressing any opinion about the correctness, legality or otherwise justification of the said judgment which would be considered in appropriate proceedings including the review application made to the defendant petitioners within the permissible parameters of review jurisdiction but suffice it to observe that it cannot be said that claim of interest at the rate of 21.5 per cent per annum with quarterly rest was not contemplated in the plaint. We do not find any absolute principle of law that in no case the Court or for that matter Tribunal possesses power of permitting the amendment in the pleadings after the disposal of the suit or proceedings. If some accidental slip or omission or clerical error or obvious mistake has crept in the pleadings and remained undetected during trial and so obvious that it needs to be corrected or amended in the interest of justice, it is permissible for the Court to grant such correction or amendment even after disposal of the proceedings. However, such power in the Court cannot be invoked to introduce something which was never contemplated when the suit or proceeding was alive. Sections 152 and 153 of Code of Civil Procedure specifically and of course Section 151 of Code of Civil Procedure which preserves the inherent power of the Court, enable the Court to permit amendment in the pleading contemplated originally out accidentally omitted through error even after judgment to meet the ends of justice in a suitable case. The legal position seems to have been aptly stated by Hidayatulla, J. (as he then was) in Lungya Balya Dhangar v. Bansilat Pusaram Mahesari AIR 1950 Nag. 95. Hidayatulla, J. relied upon the judgment of the Division Bench Fulchand v. Uderaf [Misc Civil Case No. 23 of 1947, dated 31-12-1948], wherein it was held thus:

'"It is clear that all clerical errors can be corrected at any time, even after judgment, and that even errors which do not bring out the true intention of the Court can in appropriate cases be corrected at a late stage. No authority for this proposition is needed, but we cite Rajbachan Singh v. Shatranjai, 17 Luck, 739 : AIR (20) 1942 Ondh 226. But this power of correction, which is given by sections 152 and 153, Civil P.C., is really exercisable in those cases where there is an accidental slip or error. The power cannot be exercised in those cases where a party seeks to get embodied in the plaint and the decree something that was not thought of at the time the litigation was going on. The distinction has been brought out, in our opinion, very forcefully by Bowen, L.J. In Glasier v. Rolls [1889] 62 L.T. 305 at p. 806; 59 L.J. Ch. 63 where the learned Lord Justice observed as follows:

'It is quite a different thing to come after a judgment and ask that it should be amended so as to express the real intention of the Court, entertained by the Court at the time the judgment was given. If an intention so entertained by the Court is not expressed in the order there has been a miscarriage, and you set it right as a slip; but to see to alter the judgment by asking that something may be embodied in it the demand for which was not even thought of at the time, and was never brought to the attention of the Court, is really to ask us to make a different judgment from that which has already been perfected." (p. 96)'

What has thus been observed by the Division Bench is that clerical errors can be corrected at the stage even after judgment in exercise of the powers under sections 152 and 153 of the Civil Procedure Code but such power cannot be exercised in the cases where a party seeks to introduce in the pleading which was not thought of at the time the litigation was going on. In so far as present case is concerned, as already noted by us, in the plaint or for that matter the Original Application and the documents referred therein, it cannot be said that the plaintiff Bank did not contemplate the claim of interest with quarterly rest on the due amount. Whether such claim of interest was justified or not is a different question. In this view of the matter, it cannot be said that the Appellate Tribunal committed any error of jurisdiction or gross error of law in permitting the Bank to amend the Original Application after disposal of Original Application by the Debt Recovery Tribunal. We again clarify that whatever has been said above by us shall not be read as a reflection of our opinion on the correctness of Tribunal's order in awarding interest at quarterly rest or compound interest subsequent and from the date of filing the suit. This issue is kept open, to be decided by the Tribunal in the review application or in appropriate appeal that may be preferred by the petitioners.

6. Though the learned counsel for the petitioner urged that the impugned order granting amendment has been passed by the Appellate Tribunal without affording adequate opportunity to the petitioners to file reply thereto, we are unable to accept the submission. We do not find from the proceedings before the Appellate Tribunal that at any stage the petitioner made any prayer for filing reply to the application for amendment or to the appeal. As a matter of fact, the Debts Recovery Appellate Tribunal (Procedure) Rules, 1994, particularly Rule 14 enables the respondent for filing reply to the appeal within one month of the service of the notice from the date of the filing of the memorandum of appeal. In the present case, as noted above, the memorandum of appeal was served upon the present petitioners on 10-5-2002 and appeal came up before the Appellate Tribunal on 13-5-2002 and thereafter it was taken up for hearing on 21-5-2002. Neither on 13-5-2002 nor on 21-5-2002 any prayer seems to have been made by the petitioners for filing reply to the appeal or application for amendment. As a matter of fact, the perusal of the impugned order shows that the learned counsel appearing for the petitioners herein responded by raising legal objection that after the original application was disposed of, it was not proper for the Bank to make amendment application and that when the quarterly rest has not been mentioned in the Original Application nor in the demand notice, the lacuna now sought to be filled in by way of amendment application could not have been granted. We do not find any infraction of principles of natural justice in disposal of the appeal by the Appellate Tribunal.

7. Since we have not found any infirmity in the impugned order passed by the Appellate Tribunal on merits, we do not deem it necessary to deal with the objection raised by Mr. Samdani that upon acceptance of the cost of Rs. 20,000 it is not open to the petitioners to challenge the impugned order allowing amendment in Original Application.

8. Writ petition, accordingly, has no merit and is dismissed with no order as to costs.

9. All contentions of the parties in the review application are kept open to be agitated before the Debt Recovery Tribunal and such objections shall be dealt with, considered and decided by the Tribunal in accordance with law.