ORDER
Amitava Lala, J.
1. This application is made under Article 227 of the Constitution of India challenging the order passed by the learned Presiding Officer of the concerned Debt Recovery Tribunal as on 25th January, 2000 under No. 16 therein. By such order, the Presiding Officer of the Debt Recovery Tribunal rejected the application of the guarantor about quantification of the loss occurred in respect of security when admittedly it was the custody of the Receiver appointed at the instance of the Bank. The only point has been taken by the Tribunal that as because theft occurred in 1991 and the application made after 9 years, the application is nothing but attempt of dilatory tactics. Therefore, the same is to be dismissed. At the time of dismissal a question arose as to whether the learned counsel for the defendant is ready for peremptory hearing or not, which was answered in negative. However, it has recorded that the defendant has declined to cross-examine the plaintiff-witness, P.W. No. 1.
2. Initially, an objection was put in by Mr. Rajasekhar, learned counsel, appearing for the Bank saying that the application cannot be said to be maintainable in view of alternative forum of Appeal available for the litigants which was opposed by Mr. Sanjib Banerjee learned counsel, appearing for the petitioner by saying that at the material point of time in early 2000, there was no forum for Appeal available in the State and now at this stage of final hearing, such point cannot be taken. Appropriate question of law involved in the matter, therefore alternative remedy if any, is no bar. However, since Mr. M. Rajashekhar, learned counsel, appearing for the Bank does not raise this point, the same has set at rest on that score. Therefore, there is no need to go into such controversy. Hence I have to consider the merit of the application.
3. Apparently, an application belatedly made after a period of 9 years, may not be entertained by a Court of law unless it is supported by very sound and cogent reasons to entertain it. But according to me, in doing so, the Presiding Officer caused material irregularity by not considering the other points, if any i.e. whether there is any cogent reason available or not. How the Court will come to an ultimate balance of claim unless such application is not taken into consideration on merit? It could have been decided by the Tribunal by allowing a very short time bound programme so that there should not be any controversy about disposal of the matter.
4. However, a question definitely arose before this Court why where was a delay of 9 years, therefore, I have to deal with the same at first. Mr. Banerjee, learned counsel, appearing for the petitioner contended that originally suit was instituted in the appropriate Court of Howrah in 1984 being Title Suit No. 73 of 1984. In an application of the Bank a Receiver was appointed in respect of the hypothecated goods of the Bank in 1987. He made a suo motu valuation of goods. This petitioners took strong objection about making valuation without leave of the Court. Court rejected prayer of the petitioners with this regard. However, with the intervention of the High Court in 1988 Security Guards were posted. Bank itself made an application in April, 1992 in the Court about taking appropriate steps by the Receiver regarding theft occurred in the premises on 6th December, 1991. Bank filed FIR in the police station on 9th January, 1992. In spite of repeated requests neither the Receiver nor the Bank disclosed the present position. By virtue of the Act the Suit was transferred to the tribunal in 1995 and renumbered. The present application is made in January, 2000. Mr. M. Rajasekhar, learned counsel, appearing for the Bank pointed out that this point could have been agitated before the Tribunal at the earliest but the same was not done, nor any counter-claim or set up was made therein on that score. Therefore, good, bad or indifferent, when after 9 years an application has been made, at the time of peremptory hearing it has definitely caused delay in proceeding and therefore, the learned Presiding Officer has rightly held in favour of the Bank by rejecting the application of the guarantor.
5. On the other hand, Mr. Banerjee, learned counsel for the petitioner, further contended that in Chapter VIII of the Indian Contract Act, 1872, the principle laid down that the surety’s interest will be protected and when the suit is made for ultimate balance, the certificate is to be issued by the Tribunal to the extent after passing the decree. As such, the requirement of the law cannot be objected to. Section 133 of the Indian Contract Act, 1872 says that any variance, made without the surety’s consent, in the terms of the contract between the principal debtor and the creditor, discharges the surety as to transactions subsequent to the variance. Therefore, whether there is an appropriate variance to discharge a surety on a liability partly or fully arises therefrom is the legal necessity. Therefore, there cannot be any estoppel against the statute in considering that score.
6. I do not, for a moment, want to say that whether the Tribunal would accept the plea or reject the plea on merit. I am going to say that when there is a statutory requirement available, the question of delay would not be the only ground of rejection of the application. For the cause of delay, a surety might loose quantum on account of his surety but that does not necessarily mean a cause of consideration and discharge of surety will be vanished by such delay automatically. In the order, there is no whisper about preexisting application of the Bank in this regard. Observation about criminal case is full of surmise and conjecture. The Court had not enquired about fate of the application of the Bank. There is no recording as to why the Bank made the application for directing the Receiver after about four months from the date of theft to strike balance of causing delay. Tribunal not enquired why there was a delay of filing FIR after about one month from the incident. In that way the order is not free from criticism.
7. In the judgment , Union Bank of India v. Suresh Bhailal Mehta, cited before the Tribunal, it was held there where an account of the negligence of the Bank and the lengthy inaction on its part, the security in the form of hypothecated goods has been lost or diminished, the same would discharge the guarantor from his obligation and liabilities as a surety. That apart the other judgments which have been cited on that score reported in, (State of Madhya Pradesh v. Kaluram) and (The State Bank of Saurashtra v. Chittaranjan Rangnath Raja) are also similar. By citing another judgment (Punjab National Bank v. Sri Bikram Cotton Mills Ltd.), the learned counsel appearing for the petitioner contended that there might be necessity of calculation of ultimate balance in that case, the proceeding of the suit ought to be stayed till ultimate balance is arrived at. He further contended that right to examine or cross-examine the witnesses will survive only after such point is adjudicated. Mr. M. Rajashekhar, contended that a suit is instituted by the petitioner in the appropriate Court of District Howrah. Therefore, the petitioner is not remediless.
8. Whatever submissions made by both the Counsels before this Court that will be taken into account by the Tribunal having jurisdiction in respect of the matter in question. But I am not on that point. I am only concerned whether any legal necessity arises or the application can be rejected simpliciter on the ground of delay. According to me, the order which has been passed ignoring the balance of convenience as well as necessary application of the law only on the ground of delay caused material irregularity. Unless the relevant question of discharge of surety and question of certification to that extent is adjudicated particularly when the cause is existing, rejection of the point in issue will lead to unjust enrichment to the Bank irrespective of institution of any purported suit by the surety.
9. Therefore, the order should be set aside and accordingly, the same is hereby set aside. However, a time bound programme for the purpose of hearing of the application pending before the Tribunal is made hereunder. A period of one month from the date of communication of this order is fixed for the purpose of hearing the application on merit and its disposal. Thereafter the tribunal will proceed with the suit as expeditiously as possible and finalize within a further period of one month from the order to be passed in the application.
10. The application under Article 227 of the Constitution of India stands disposed of. There will be no order as to costs.
11. Let urgent Xerox certified copy of this order, if applied for, be given to the learned counsel for the parties within the period of a fortnight from the date of putting the requisites.