C.Ramakrishnan & Anr. vs Oriental Bank Of Commerce & Ors.
2010 Latest Caselaw 718 Del

        *           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                       Date of Reserve: February 01, 2009
                                                          Date of Order: February 08, 2010

+ CM(M) 829/2005
%                                                                          08.02.2010
     C.Rama Krishnan & Anr.                                       ...Petitioners
     Through: Dr. Shyamlha Pappu, Sr. Advocate with Mr. D.N.Rao, Advocate &
     Mr. R.Krishnaamorthi, Advocate

        Versus

        Oriental Bank of Commerce & Ors.                    ...Respondents
        Through:      Mr. M.K. Manav, Advocates for R-4 and 5.
                      Mr. Mahesh K. Chaudhary, Advocate for R-1


        JUSTICE SHIV NARAYAN DHINGRA

1.      Whether reporters of local papers may be allowed to see the judgment?

2.      To be referred to the reporter or not?

3.      Whether judgment should be reported in Digest?

        JUDGMENT

1. The petitioner way of present petition assailed an order dated 6th December 2004 passed

by Appellate Tribunal in Appeal No.70/2002 (In OA 603 of 1996) whereby the learned Tribunal

set aside the order passed by learned Debt Recovery Tribunal dated 26 th December 2001 insofar

as it related to appellants i.e. defendant no.3 and 4 therein and the OA was remanded back to

DRT directing DRT to hold further inquiry into the issue of creation of mortgage in respect to the

property of appellant (appellant no.3) (defendant no.3) and the bank was also given liberty to

move an appropriate application before the learned DRT for proving the mortgage.

2. This petition has not been filed by the appellant before the Appellate Debt Recovery

Tribunal nor by the bank in whose favour the original order was passed by the Debt Recovery

Tribunal. Rather the present petition has been filed by the respondent in whose respect the order

was not disturbed by the learned Appellate Tribunal.

3. The contention of the learned counsel for the petitioner is that the petitioner was not

CM(M) 829/2005 C.Rama Krishnan & Anr. v. Oriental Bank of Commerce & Ors.Page 1 Of 3 given an opportunity of hearing during the appeal and the order was passed by the learned

Appellate Debt Recovery Tribunal without hearing the petitioner herein. It is submitted that

though the petitioner was made a respondent in the appeal but no notice was served upon the

petitioner. It is submitted by counsel for the petitioner that the impugned order adversely

affected the petitioner since in the original order of the DRT, DRT had directed recovery of the

amount on selling the mortgaged immovable property and hypothecated goods first and had not

given directions for recovery of any amount from the petitioner herein.

4. The arguments advanced by learned counsel for petitioner are misconceived. The appeal

has been allowed only to the limited extent and the case has been remanded back to DRT also to

the limited extent of recording evidence qua creation of mortgage and issue of standing as a

guarantor by the appellant therein i.e. defendants no.3 and 4. The rest of the order passed by

learned Debt Recovery Tribunal has not been disturbed. The order passed by the Appellate Debt

Recovery Tribunal does not in any way prejudice the case of the present petitioner.

5. Even otherwise, I find no force in the arguments of the counsel for the petitioner that the

original order of DRT provided that no recovery should be made from the petitioner. The

operative portion of the order passed by learned DRT dated 26th December 2001 reads as under:

"11. In the light of above submissions, I direct defendants no.1 & 6 to pay jointly and severally a sum of Rs.17,75,908/- together with costs and pendentelite and future interest @ 21% per annum with quarterly rests to the applicant bank within 30 days from today. In case of default this amount be recovered from the sale of mortgaged immovable property and hypothecated goods and in case entire amount is not realized from the sale proceeds balance amount be recovered from the sale of other assets/properties of defendants no.1 to 6. "

6. It is settled law that in a petition under Article 227 of the Constitution of India the Court

while exercising supervisory jurisdiction cannot correct mere error of facts or of law, unless it is

shown that a grave injustice and gross failure of justice has occasioned thereto. The High Court

CM(M) 829/2005 C.Rama Krishnan & Anr. v. Oriental Bank of Commerce & Ors.Page 2 Of 3 has to exercise this supervisory jurisdiction in furtherance of justice and not to satisfy a litigant.

The exercise of this power is guided by judicial consciousness and the Court has to refuse to

exercise this power in favour of a party if no prejudice or injustice was being caused to the party.

7. In the case in hand, the order passed by learned DRT qua petitioner herein has not been

disturbed and only a limited aspect of the matter has been referred back by Appellate Tribunal to

DRT concerned with the appellant before the learned Appellate Debt Recovery Tribunal.

8. I find no force in this petition. The petition is hereby dismissed. No orders as to costs.

February 08, 2010                                         SHIV NARAYAN DHINGRA J.
rd




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