ORDER
K.S. Kumaran, J. (Chairperson)
1. First respondent – Bank of India (hereinafter referred to as ‘the respondent-Bank’) filed T.A. 137/2002 (initially O.A. 256/2001) against appellants (who are defendants 1 and 3 in the TA, and hereinafter referred to as ‘the appellant-defendants’) and Girdhari Lal Arora, the 2nd defendant in the T.A., for the recovery of Rs. 1,12,00,237.59 with interest and costs. On 1.10.2002 reply to the T.A. on behalf of the defendants was filed, but the learned Presiding Officer of the Debts Recovery Tribunal-III, Delhi (hereinafter referred to as ‘the DRT’) did not take the reply filed by the defendants on record, and directed the respondent Bank to file the affidavit (by way of evidence) in two weeks. The matter was ordered to be listed on 28.10.2002.
2. In the meanwhile, on 18.10.2002, an application (IA 176/2002) on behalf of the defendants was filed to condone the delay in filing the written statement, and to take the same on record. This application came up for hearing on 21.10.2002 before the DRT. The learned Presiding Officer of the DRT observed that the defendants who had been appearing since 5.3.2002, failed to file the reply despite many opportunities given, and that the right to file the written statement was closed in view of the orders dated 5.3.2002 and 15.4.2002. Therefore, the learned Presiding Officer of the DRT dismissed the said application holding that in view of the order passed on 1.10.2002 the said application is not maintainable.
3. Aggrieved by these two orders dated 1.10.2002 and 21.10.2002, the appellant-defendants have come forward with this appeal. The respondent – Bank has filed a suitable reply opposing the appeal.
4. I have heard the Counsel for the both the sides, and perused the records.
5. The relevant facts leading to the filing of this appeal are as follows:
On 5.3.2002 the respondent – Bank was directed to provide the copy of the O.A. with complete set of documents to the Counsel for the defendants within a week, and the defendants were directed to file the written statement within 30 days from the date of receipt of the copy of the O.A. and the documents. The matter was adjourned to 15.4.200. On 15.4.2002, since the Counsel for the appellant-defendants stated that the O.A. in full shape was supplied on 1.4.2002, time to file the written statement was extended by 30 days, and the O.A. was ordered to be fixed on 15.5.2002. On 15.5.2002 the O.A., which was pending before the DRT-1, Delhi, was transferred to the DRT-III, Delhi to be taken up on 3.7.2002. It was taken up on the file of DRT-III, Delhi as T.A. 137/2002. On 3.7.2002 the learned Presiding Officer of the DRT was on leave and, therefore, the matter was adjourned to 1.10.2002, on which date the written statement was filed, but was not taken on record by the learned Presiding Officer of the DRT. The application (filed on 18.10.2002) for condonation of delay in filing the written statement with a request to take the written statement on record was also dismissed by order dated 21.10.2002. Therefore, this appeal has been filed.
6. The learned Counsel for the appellant-defendants contends that the Counsel for the appellant-defendants had gone to his home town on 31.5.2002 in view of the vacation for the Hon’ble Supreme Court, instructing his clerk to file the written statement positively by 15.5.2002, but when he came back on 4.7.2002 he found that the written statement had not been filed. He also contends that the TA, which was listed on 3.7.2002 had been adjourned to 1.10.2002 as the Presiding Officer was on leave, and the Counsel representing him came back without filing the written statement by inadvertence. He further contends that on 1.10.2002 the written statement filed was not taken by the learned Presiding Officer of the DRT. The learned Counsel for the appellant-defendants, therefore, contends that it is in these circumstances the written statement was not filed before 15.5.2002, and, therefore, the application moved for condonation of delay in filing the written statement should have been allowed, and the written statement should have been taken on record. The learned Counsel for the appellant-defendants contends that in the interests of justice a liberal view condoning the delay should have been taken and, therefore, prays that the delay in filing the written statement be condoned, and the same be ordered to be taken on record.
7. But, the learned Counsel for the respondent – Bank, on the other hand contends that if the written statement was ready, there was no reason for not filing it on or before 15.5.2002. The learned Counsel for the respondent – Bank further contends that on 1.10.2002, while declining to take the written statement on record, the learned Presiding Officer of the DRT had adjourned the T.A. to 28.10.2002, and on 28.10.2002, has even passed the final orders. He, therefore, contends that the appellant-defendants cannot get any relief in this appeal.
8. But, the learned Counsel for the appellant-defendants on the other hand, contends that when the learned Presiding Officer of the DRT passed order on 21.10.2002 declining to condone the delay in filing the written statement, the appellant-defendants presented this appeal before this Tribunal on 25.10.2002. He contends that since I (Chairperson) did not hold Court on that day, the appeal could not be listed immediately. The learned Counsel for the appellant-defendants contends that the learned Presiding Officer of the DRT had reserved orders (in the T.A.) stating that the same would be pronounced later on. The learned Counsel for the appellant-defendants further contends that on 29.10.2002 an application was moved for deferring the passing of orders, but was told that it would be listed in due course of time. He also contends that the application for inspection of the case file and for getting the certified copy of the order dated 28.10.2002, whereby the orders were reserved (in the T.A.) was moved on 29.10.2002. The learned Counsel for the appellant-defendants contends that from 29.10.2002 onwards Mr. Rupkamal Brahma, Advocate (on behalf of the Counsel for the appellant-defendants) had been enquiring about the matter, but could not ascertain the status of the case, but when he was granted inspection of the case file on 6.11.2002, he came to know that the application filed on 29.10.2002 had been dismissed for default on 31.10.2002. He also contends that Mr. Rupkamal Brahma found a typed copy of the final order bearing the date 28.10.2002 lying in the file, despite the fact that no order was dictated or pronounced on 28.10.2002 in open Court. The learned Counsel for the appellant-defendants further contends that it was also found that the said order is still unsigned. The learned Counsel for the appellant-defendants contends that the final orders were neither dictated nor pronounced in open Court on 28.10.2002, and that the final order still remain unsigned by the learned Presiding Officer of the DRT. He, therefore, contends that it cannot be stated that the final orders have been passed in the T.A., and the T.A. should be treated to be pending.
9. The learned Counsel for the appellant-defendants relies upon the decision of the Hon’ble Himachal Pradesh High Court in High Court on its own motion v. Sunder Singh, AIR 1986 Himachal Pradesh 47 in support of his contention, wherein it was held as follows:
“It would thus appear that the draft judgment, which is found placed on the record of the appellate Court, since it was not duly signed by the learned Additional District Judge, still retained the character of a judgment to which finality was not attached. Order 41 Rule 31 of the Civil P.C. inter alia provides that the judgment of the appellate Court shall be in writing and shall, at the time when it is pronounced, be signed and dated by the Judge. As observed by R.S. Pathak, C.J., in Ramji Das’s case, the requirement of signing a judgment is not a mere formality. It is an act which makes the judgment perfect and complete. Mere pronouncement of the judgment, assuming that there was such a pronouncement, therefore, has not the effect of converting the draft judgment into the judgment of the Court to which finality was attached.
For the foregoing reasons, in my opinion, the appeal preferred by the first and second respondents before the lower appellate Court will require to be treated as not having been disposed of in accordance with law. The decree formally drawn up and duly signed will have to be treated as having no effect in the eye of law, The appeal will require to be readmitted on the file of the District Court and heard and decided afresh, Order accordingly.”
On 8.11.2002 when this appeal came up for hearing before this Tribunal, the appellants-defendants pointed out that the order still remains unsigned. An affidavit sworn to by Mr. Rupkamal Brahma, Advocate (attached to the office of the Counsel for the appellants-defendants) was also filed giving certain details, including the fact that the order still remains unsigned. Therefore, I summoned the records of the TA 137/2002 from the DRT. On a perusal of the records I found the final order dated 28.10.2002 still remains unsigned. Subsequently, a report was also called for from the concerned Presiding Officer as to the circumstances under which the final order remains unsigned, and as to why the provision of Rule 14 of the Debts Recovery Tribunal (Procedure) Rules, 1993 have not been followed. The learned Presiding Officer of the DRT has sent a report stating that the final order had been dictated and pronounced on 28.10.2002, but it appears that inadvertently the file lying for signatures must have got mixed up with the other signed files, and removed from her Chamber by the staff.
10. Rule 14 of the Debts Recovery Tribunal (Procedure) Rules, 1993 provides that every order of the Tribunal shall be in writing and shall be signed and dated by the Presiding Officer of the Tribunal. It also provides that order shall be pronounced in open Court. Therefore, it is clear that the provisions of Rule 14 of the above said Rules have not been complied with, for whatever reason. Therefore the decision of the Hon’ble Himachal Pradesh High Court cited above clearly supports the contention of the learned Counsel for the appellant-defendants that the T.A. cannot be deemed to have been disposed of in accordance with law, and has to be treated as pending. Therefore, the contention of the learned Counsel for the respondent – Bank that the T.A. has been disposed of on 28.10.2002 and, therefore, the appellant-defendants cannot get any relief in this appeal cannot be accepted.
11. So far as the request of the learned Counsel for the appellant-defendants that the delay in filing the written statement to the T.A. should be condoned and that the written statement should be taken on record is concerned, as pointed out already, by order dated 5.3.2002 the respondent – Bank was directed to provide the copy of the O.A. to the Counsel for the defendants in a week, and the defendants were directed to file the written statement within 30 days thereafter. The matter was ordered to be listed on 15.4.2002. On 15.4.2002 the learned Counsel for the appellant-defendants stated that the copy of the O.A. was supplied only on 1.4.2002 and, therefore, the defendants were given time to file the written statement within 30 days. The matter was ordered to be listed on 15.5.2002. On 15.5.2002 the O.A. was transferred from the file of the DRT-I, Delhi to DRT-III, Delhi, and was ordered to be taken up on 3.7.2002. But, since the learned Presiding Officer of the DRT-III was on leave on 3.7.2002, the matter was adjourned to 1.10.2002, on which date the written statement was filed, but was not taken on file by the learned Presiding Officer of the DRT, as pointed out already. The matter was adjourned for orders on 28.10.2002, but, in the meanwhile, on 18.10.2002, the application for condonation of delay in filing the written statement, with a request to take the same on record, was filed on behalf of the defendants. As pointed out already, the contention of the learned Counsel for the appellant-defendants is that the Counsel for the defendants had gone to his native place on 11.5.2002 in view of vacation, after giving instructions to his clerk to file the written statement, but the written statement was not filed due to inadvertence. As pointed out already, the O.A. was transferred to the file of the DRT-III, Delhi on 15.5.2002 to be taken up by DRT-III on 3.7.2002, but on 3.7.2002 the learned Presiding Officer of the DRT-III was on leave. The contention of the learned Counsel for the appellant-defendants is that since the Presiding Officer of the DRT was on leave, the Counsel representing him (Counsel for the appellant-defendants) had come back without filing the written statement. I also find that the written statement was filed on 1.10.2002, but the learned Presiding Officer declined to take it on record. In the circumstances pointed out, I am of the view that the appellant-defendants cannot be stated to have acted wholly negligently or with an intent to drag on the proceedings. Of course, there is delay in filing the written statement, which should have been condoned in the circumstances of the case and the appellant-defendants could have been burdened with cost. In the circumstances, I am of the view that the delay in filing the written statement should be condoned, and the written statement should be taken on record. Claim in the T.A. is for more than Rs. one crore. Interests of justice required that the appellant-defendants should not be shut out at the threshold itself, and should be given an opportunity to have their case decided on merits. Therefore, I am of the view that the appeal has to be allowed, setting aside the impugned orders dated 1.10.2002 and 21.10.2002. However, in view of the delay in filing the written statement and the unnecessary inconvenience and the expenses to which the respondent – Bank has been put, I am also of the view that the appellant-defendants should pay a cost of Rs. 10,000/- to the respondent – Bank.
12. Accordingly, the appeal is allowed setting aside the impugned orders dated 1.10.2002 and 21.10.2002. The order declining to take the written statement on record, and the order declining to condone the delay in filing the written statement and to take the written statement on record are set aside. The application filed by the appellant-defendants for condoning the delay in filing the written statement, and for taking the written statement on record will stand allowed. Accordingly, the delay in filing the written statement is execused, and the written statement is ordered to be taken on record.
13. Since I have already held that the T.A. cannot be stated to have been disposed of in accordance with law and should be treated to be pending, the learned Presiding Officer of the DRT concerned will restore the T.A. back to file, take the written statement of the appellant-defendants on record, give opportunity to both sides to put forward their case, and then dispose of the T.A. in accordance with law. For this purpose, the parties are directed to appear before the DRT concerned on 16.12.2004 for taking further directions in this matter.
14. As directed already, the appellant-defendants shall pay a cost of Rs. 10,000/- to the respondent – Bank.
Copy of this order be furnished to both sides, and be also forwarded to the concerned DRT.