Delhi High Court
Punjab And Sind Bank vs Guru Nanak Auto Supplies (India) ... on 3 September, 1997
Equivalent citations: 1998 94 CompCas 435 Delhi
Author: K Gupta
Bench: K Gupta
JUDGMENT
K.S. Gupta, J.
1. This order will govern the disposal of I.As. Nos. 496 of 1996 and 497 of 1996, filed by Yashoda Nandan, defendant No. 4.
2. It is alleged in I.A. No. 496 of 1996, that the plaintiff-bank filed suit No. 1199 of 1989, for recovery of Rs. 3,01,446.62 with interest at 18 per cent. per annum and costs which was decreed by the judgment dated October 7, 1991. The defendants were granted six months time to pay the decretal amount failing which the plaintiff was at liberty to move the court for passing a final decree.
3. Defendant No. 4 for the first time came to know about the filing of the suit on receipt of notice of the application filed under Order XXXIV, rule 5 read with section 151 of the Civil Procedure Code, 1908. Immediately on receipt of notice, defendant No. 4 approached the counsel on March 10, 1994, and on inspection of the file on March 11, 1994, it was revealed that a decree for Rs. 3,01,446.62 along with interest was passed against the defendants. It was further revealed that defendant No. 4 was proceeded against ex-parte, vide order dated August 23, 1989. It is stated that defendant No. 4 thereafter contacted defendants Nos. 2 and 3, principal borrowers and defendant No. 2 told defendant No. 4 that a stay had been granted by the Supreme Court in C.W.P. No. 497 of 1988, and, therefore, there was no cause for worry. At the instance of defendants Nos. 2 and 3 he also signed the application, affidavit and vakalatnama in connection with the setting aside of the decree and handed over the papers to defendant No. 2 for being filed in court. It is alleged that defendant No. 4 is a victim of riots which took place in October-November, 1984, after the assassination of Smt. Indira Gandhi. He could not engage a lawyer being a poor person. It was prayed that the judgment and decree dated October 7, 1991, may be set aside and defendant No. 4 be allowed to contest the suit on the merits.
4. I.A. No. 497 of 1996, under section 5 of the Limitation Act, 1963, read with section 151 of the Civil Procedure Code, 1908, was also filed for condensation of delay in filing said I.A. No. 496 of 1996.
5. The plaintiff-bank contested both the applications by filing a joint reply. It is alleged that defendant No. 4 was served with the summons in the suit on July 7, 1989, and as he did not choose to appear he was proceeded against ex parte by the order dated August 23, 1989. The other defendants were also proceeded against ex parte and a preliminary decree was passed on October 7, 1991. In spite of the preliminary decree the defendants did not care to redeem the property mortgaged with the plaintiff-bank within the stipulated period and, therefore, I.A. No. 8391 of 1993, was filed by the plaintiff-bank for passing a final decree. Notice of this application was admittedly received by defendant No. 4 before March 10, 1994. It is stated that the present application filed on or about August, 1995, is thus barred by time and sufficient cause has not been shown for condoning the delay in filing the application. It is denied that defendant No. 4 at the instance of defendants Nos. 2 and 3 signed application, affidavit and vakalatnama for setting aside the decree and gave the same to defendant No. 2 to file in court, as alleged. It is alleged that it was obligatory on the part of defendant No. 4 to have brought to the notice of the plaintiff-bank that he was a riot victim and the application being misconceived is liable to be dismissed with special costs.
6. I have heard the parties counsel and have been taken through the record.
7. It is not in dispute that in a batch of writ petitions including C.W.P. No. 497 of 1989, an order was passed on November 7, 1989, by the Supreme Court. The relevant portion of the order, copy whereof is placed on the file reads as under :
"In view of the above statement, we direct the banks not to have a recourse to recovery proceedings until the banks decide the case of each individual concerned in accordance with the advice of the Reserve Bank of India. This order of stay of recovery made by us relates only to the aforesaid category of persons. This does not prevent any bank from instituting a suit in court if it is felt that the suit is about to be barred by time. Even if any such suit is filed it shall be kept pending until the relief to be granted is determined by the banks as per the advice of the Reserve Bank of India. This order applies to the entire clan of riot affected victims referred to above whether they have filed a petition in this court or not. All these cases are disposed of."
8. By a subsequent order dated December 17, 1993, the Supreme Court directed the Union of India and also the Reserve Bank of India to include all financial institutions in the definition of banks-both State and Central Government - in its Central Interest Subsidy Scheme for the November, 1984 riots-affected borrowers.
9. During the course of arguments, it was not disputed on behalf of the plaintiff-bank that defendant No. 4 is a victim of the 1984 riots. That being so, in view of the aforesaid order dated November 7, 1989, the plaintiff's suit could not have been decreed against defendant No. 4 by the judgment dated October 7, 1991, as by that time the relief to be granted to him as per the advice of the Reserve Bank of India was not determined. Without touching the other grounds taken in I.A. No. 496 of 1996, the impugned judgment and decree qua defendant No. 4 deserve to be set aside and the delay condoned on the aforesaid score.
10. For the foregoing reason, both the I.As. are allowed, and the judgment and decree dated October 7, 1991, are set aside qua defendant No. 4 and he is permitted to contest the suit on the merits. No order as to costs.
11. Written statement be filed by defendant No. 4 within three weeks from today.
