JUDGMENT
S.S. Parkar, J. (Chairperson)
1. This appeal has been filed against the order dated 25th October, 2004 passed by the Residing Officer, D.R.T.-II, Mumbai allowing Original Application of the respondent Bank to hold the appellant/ defendant No. 4 liable jointly and severally with defendant Nos. 1 to 3 for the debts of the borrower company. The appeal arises in the following circumstances.
2. The respondent Bank had filed the Original Application against four defendants. Defendant No. 1 was borrower company and defendant Nos. 2 to 4 were directors and guarantors. A loan was sanctioned to the defendant No. 1 company by the respondent Bank.
3. After considering the evidence, the Presiding Officer in para No. 4 of the judgment dated 4th February, 2003 has observed that the defendant Nos. 2 to 4 had executed guarantees in 1996 onwards. In para 11 of the judgment it is also observed that the defendant Nos. 2 to 4 admitted to have signed the guarantee agreement However, in the operative portion of the order only defendant Nos. 1 to 3 were ordered to pay jointly and severally to the respondent Bank a sum of Rs. 54,48,750/-. After realizing that the decree was wrongly omitted to be passed against the defendant No. 4 the respondent-Bank filed appeal in this Tribunal in the month of April, 2004. Thereafter, the respondent-Bank also filed review application on 13th July, 2004 because there was an error apparent on the face of the record and since there was delay in filing the review application, an application was filed for condonation of delay. The application was contested by the appellant by filing reply to the review application. The said application for review was, however, treated by the Presiding Officer as miscellaneous application and it was allowed by the impugned order on the ground that there was typographical error which could be corrected even suo motu which is challenged in this appeal filed by the appellant.
4. On behalf of the appellant it is argued that the said mistake could not be corrected in the miscellaneous application. Secondly, it is argued that the Presiding Officer should not have treated the review application as miscellaneous application ignoring the delay in filing the review application which according to the appellant was not explained. In support of this contention the learned Advocate for the appellant relied on the judgment of the Apex Court in the case of State of Punjab v. Darshan Singh 2004(2) Mh.L.J. 565. In that case the Supreme Court has held that under Section 152 of the CPC arithmetical mistakes in judgments, decree orders arising therein from any accidental slip or omission can be corrected. It is, therefore, argued that the omission of defendant No. 4 in the operative portion of the order cannot be said to be a clerical or an arithmetical mistake.
5. In order to appreciate the contention of the appellant the provision of Section 152 of the C.P.C. can be considered which states as follows:
Section 152. Amendment of judgments, decrees or orders.–Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
6. From the aforesaid provision it is manifest that the Court has power to correct two types of mistakes or errors in the judgments, decrees or orders. Firstly, clerical or arithmetical mistakes and, secondly, errors arising from any accidental slip or omission. The view taken by the Presiding Officer as observed in the impugned order is that the omission of defendant No. 4 in the operative portion of the order was a typographical error and, therefore, it could be corrected even suo motu at any time. From the observation in the impugned order it appears that the Counsel appearing for the defendant No. 4 had also admitted that it was a case of typographical error. Realizing that it was the mistake of the D.R.T. the Presiding Officer, instead of making the respondent Bank pay Court-fee payable on review application treated it as miscellaneous application for exercising power under Section 152 of the CPC allows the Court to correct not only clerical or arithmetical mistakes made in the judgments or orders but also to correct errors arising therein from any accidental slip or omission at any time suo motu or when pointed out by the parties. When the mistake was brought to the notice of the Presiding Officer that the decree was wrongly not passed against the defendant No. 4 as per the observations made in paras 4 and 11 of the judgment, the error committed in the order was corrected.
7. On behalf of the appellant it is then argued that the review application was treated as miscellaneous application by the Presiding Officer to circumvent the delay in filing the review application which was not properly explained, but I do not think so. The respondent Bank had also applied for condonation of delay in filing the review application. Initially, the respondent Bank seems to have been advised to file appeal which was filed in the month of April, 2004 against the order dated 4th February, 2003 but subsequently the respondent Bank filed application for review on 13th July, 2004 to avoid payment of higher Court-fee in the appeal which cannot be faulted with. The delay could have been condoned in those circumstances at the most by providing costs against the Bank. The appeal which was filed by the respondent Bank in April, 2004 was not prosecuted and, therefore, it was ultimately dismissed for want of prosecution. But prosecution of the appeal by the respondent Bank cannot be a ground to reject the application for correction or review of the order as argued on behalf of the appellant.
8. In my opinion the fault on the part of the Presiding Officer is in holding the omission of defendant No. 4 in the operative portion of the order as typographical error. In my view, it is an error from accidental slip or omission on the part of the Presiding Officer and, therefore, could be corrected under Section 152 of the CPC. Surely, it would have been better if the Bank had brought this error to the notice of the Presiding Officer immediately but for that reason the belated application and exercise of power under Section 152 of the CPC cannot be faulted with. Undoubtedly, it was an error apparent on the face of the record which could have been corrected even in review application under Section 5A of the RDDBFI Act, 1993 but as observed earlier the said mistake could also have been corrected by exercising power under Section 152 of the CPC as arising from an accidental slip or omission on the part of the Presiding Officer and not as a typographical error as held by the Presiding Officer. I, therefore, see no reason to interfere in the impugned order as the order can be confirmed, though for different reasons.
9. The learned Advocate appearing for the appellant then argued that the defendant No. 4 could not have been treated on par with other guarantors i.e. the defendant Nos. 2 and 3 who were the directors of the company while defendant No. 4 was an ’employee director’. That is a question which pertains to the merit of the decision which cannot be considered here. However, the fact remains that in whatever capacity the appellant was working in the borrower company, as per the finding of the-Presiding Officer, the appellant had admitted signatures on the deed of guarantee. There is no prohibition on the employee director to execute or sign a deed of, guarantee. Anyway, it is a point which can be raised on merits in the appropriate proceeding.
In the circumstances of the case this appeal is dismissed, with no order as to costs.