Civil Revision No.3594 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.3594 of 2007
Date of decision: September 09, 2008
Punjab Financial Corporation
.....PETITIONER
Versus
Lt. Col. S.K.Bhatia (Retd.) and another
.....RESPONDENTS
CORAM: HON'BLE MR JUSTICE T.P.S.MANN
PRESENT: Mr Vikas Mohan Gupta, Advocate
for the petitioner.
Respondent No.1 in person as self and
on behalf of respondent No.2, as its Proprietor.
T.P.S.MANN, J.
Suit for declaration was filed by the respondents that the
mortgage deeds executed by them to secure term loan, Soft Seeds
Capital Assistance (Interest Free Loan) and another loan were illegal and
result of fraud and mis-representation, besides being contrary to
SEMFEX Scheme. After issuance of notice, the defendant-Corporation,
petitioner herein, filed a written statement, followed by a replication by
the respondents. Issues were framed on 5.2.2007, whereafter suit was
postponed for recording evidence of the plaintiffs-respondents on
2.3.2007. On the said date, the respondents did not produce any
evidence, but filed an application for a direction that certain documents
be produced by the defendant-petitioner. The documents sought to be
produced were date-wise disbursement of actual amount of loan,
including over sum, date-wise amount of recoveries i.e. repayment of
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loan by the plaintiff and SEMFEX Scheme prevalent in 1991-92, when
the loan was applied by the plaintiffs and sanctioned by the defendant
under the SEMFEX Scheme. The petitioner was required to file reply.
On the adjourned date, the petitioner did not file any reply and the matter
was adjourned to 23.3.2007, when position still remained the same.
Learned trial Court once again adjourned the matter to 29.3.2008 on the
request made by the petitioner for filing the reply, but it was made
subject to payment of Rs.200/- as costs. Even this time again, no reply
was filed, nor the costs paid. The case was adjourned to 9.4.2007,
subject to payment of Rs.200/- as costs, over and above the costs
imposed on the earlier date. On 9.4.2007, the petitioner again could not
file the reply and learned trial Court passed the impugned order by
striking off its defence. The defendant is before this Court by filing a
revision under Article 227 of the Constitution of India to challenge the
impugned order.
Learned counsel for the petitioner submitted that the
application was filed by the plaintiffs-respondents for a direction to the
defendant-petitioner to produce the aforementioned documents, but reply
to the said application could not be filed within time for the reason that
there was movement of various records of the defendant Corporation
between its head office at Chandigarh and district office at Jalandhar.
Consequently, neither the reply could be prepared, nor the documents
sought for could be made available. In fact, the documents were first to
be received at its Amritsar office, then to be verified at its Chandigarh
office and only thereafter, reply could be submitted as to whether the
documents were to be produced or not. It is also submitted that
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defendant-petitioner had already submitted its written statement and on
account of default in not filing the reply to the application filed by the
plaintiffs-respondents, its defence could not be struck off. Moreover, in
view of the provisions of Section 35-B of the Code of Civil Procedure,
the plaintiffs-respondents could have been compensated with another
costs in case there was any delay on the part of the defendant-petitioner
in filing the reply.
It has been submitted on behalf of the respondents that
several opportunities had been granted to the defendant-petitioner to file
reply to the application of the plaintiffs. Neither the reply was filed, nor
the costs were paid. Under these circumstances, learned trial Court was
justified in striking off the defence of the defendant-petitioner.
I have heard learned counsel for the petitioner and also
respondent No.1 in person for himself and on behalf of respondent No.2,
as its Proprietor and perused the impugned order.
As has been claimed by the petitioner, the documents which
were required to be produced on its behalf were first to be received at
Amritsar office of the Corporation, which were to be verified and
checked at its Chandigarh office. Only then any reply could be submitted
by the petitioner to the application as to whether the documents in
question were to be filed or not. Moreover, there was movement of
various records of the defendant Corporation between its head office and
district office. At the same time, the petitioner had been taking undue
adjournments to file its reply to the application of the respondents. For
the first time, the application in question was filed by the respondents on
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2.3.2007. The matter was adjourned by learned trial Court to 12.3. 2007
for filing reply on behalf of the defendant Corporation. On 12.3.2007,
hearing was adjourned to 23.3.2007, when position remained the same.
However, request for adjournment made on behalf of the petitioner was
accepted and the matter was adjourned to 29.3.2007 for filing the reply,
but subject to payment of Rs.200/- as costs. It was further ordered that no
further opportunity was to be granted. In spite of all this, even on
29.3.2007, no reply was filed. Once again, learned trial Court adjourned
the matter to 9.4.2007 by imposing additional costs of Rs.200/-. Even on
9.4.2007, the things remained where they were. It was on that account
that learned trial Court did not grant any further opportunity to the
petitioner to file any reply. For the aforementioned default, the defence
of the petitioner could not have been struck off as it had already filed its
written statement. At the most, substantial costs could have been
imposed upon the petitioner so as to compensate the respondents. On
three/four different occasions when the petitioner did not file its reply,
the calendar moved only for four weeks or so. It was not that a number of
months had passed since the filing of the application by the respondents
for a direction to the petitioner to produce certain documents.
It may not be out of place to mention here that on 15.1.2008,
this Court directed the petitioner to place on record the statement of
account showing the amount of various loans which had been repaid,
besides the outstanding amount. In pursuance of the directions, the
petitioner brought on record statement of account position and statements
pertaining to three different loan accounts of the respondents as
Annexures P-2 to P-5, which were taken on record on 20.2.2008. Out of
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the three documents, the production of which was sought by the
respondents from the petitioner by filing an application on 2.3.2007, the
petitioner has made available two of them in the shape of Annexures P-2
to P-5.
In view of the above, this Court is of the opinion that the
order passed by learned trial Court for striking off the defence of the
petitioner was not called for. Instead, further time could have been given
to the petitioner to file its reply to the application of the respondents for
production of documents.
Resultantly, the revision is allowed. Impugned order passed
by learned trial Court striking off the defence of the petitioner is set aside
and learned trial Court is directed to grant another opportunity to the
petitioner Corporation for filing its reply, subject to payment of
Rs.15,000/- as costs.
As the proceedings before learned trial Court were stayed by
this Court on 24.7.2007, when notice of motion was issued, the parties
are directed to put in appearance before learned trial Court through their
counsel/in person on 1.10.2008.
September 09, 2008 (T.P.S.MANN) Pds. JUDGE