JUDGMENT
The Court
1. This is an application made by the defendant No. 2 in the suit for recalling and setting aside a decree passed on 15th May, 2000, passed by this Court. Since the application was made little out of time, the petitioner explained the delay by filing supplementary affidavit.
2. The application was taken out with a supporting affidavit dated 19th June 2000 by the pen of one Sri Sanjoy Sharma claimed to be the constituted Attorney of the petitioner and presented before this Court on 21st June, 2000.
3. The plaintiff Instituted the suit as against the defendant No. 1 by making him a principal debtor for a sum of Rs. 2,50,00,000/- (Rupees two crore fifty lacs only) and against the defendant Nos. 2 and 3 as the guarantors. The reason behind the same is that the defendant No. 2 being a businessman controls defendant No. 3 company associated with management and control of one bank being Bank of Rajasthan Limited. Certain shares in the bank held by the defendant No. 3 which were shown additional security. The claim is arising out of money lent and advance which is allegedly for a period of about one year. If repaid after one year from the respective dates of advance then the Interest will be 2 per cent over and above prevailing bank rate being 20.5 percent per annum as was prevailing at the point of time due to non-payment of loan within the prescribed period a sum of Rs. 3,06,83,567/- (Rupees Three crore six lacs eighty three thousand five hundred and sixty seven only) become due and payable by the defendant No. 1 to the plaintiff by adding interest. However, ultimate claim was made in the suit for a sum of Rs. 4,17,48,629/- (Rupees four crore seventy lacs forty eight thousand six hundred and twenty nine only) against the defendant No. 1 as principal debtor and defendant No. 2 as guarantor.
4. The whole claim as against the defendant No. 2 is based on personal letter of the defendant No. 2 under his initial dated 18th July, 1996. a photocopy of which is available from the record. By making this application for recalling and setting aside the decree passed on 15th May, 2000 the defendant No. 2 contended that the learned Advocate to whom he engaged upon being served with the writ of summons neither entered appearance in the suit nor filed any written statement inspite of having Instructions.
5. It appears from the order of the Court dated 15th May, 2000 containing decree that the plaintiff did not claim any relief as against the defendant No. 3. The defendant No. 2 did not enter into appearance nor filed written statement. Therefore, the suit, was treated as contested against the defendant No. 1, but undefended against the defendant No. 2 for the reasons above. The plaintiff contended that since the defendant No. 2 is a defaulting party it wanted to proceed against him under Chapter 9 Rule 4 of the Original Side Rules and obtained a decree because liability of the defendant No. 2 being a surety is co-extensive with the principal debtor pursuant to Section 128 of the Indian Contract Act, 1872. Therefore, examination of two documents, as produced by the plaintiff, were required by the Court. But a question arose at the time of hearing before the Court what will happen if a decree is passed as against defendant No. 2 being surety when Suit will survive for future against the defendant No. 1, the principal debtor. In turn, the plaintiff contended that they do not want to proceed against the defendant No. 1. As a result whereof decree was made against defendant No. 2 upon recording such statement.
6. In the Instant application, the petitioner contended that defendant No. 2 has got nothing to do with regard to alleged claim of Rs. 2,50,00,000/-or any other sum allegedly lent and/or advanced by the plaintiff to the defendant No. 1. The alleged letter of guarantee for repayment of the loan amount dated 18th July, 1996 is necessarily a manufactured and/or forged document. Defendant No. 1 colluded and hatched a conspiracy against the defendant No. 2/petltloner to suit the purpose of the plaintiff on the basis of such manufactured and/or forged document. No such letter of guarantee was either written or signed by the defendant No. 2/petltloner. The signature, if any, contended in the purported letter of guarantee cannot be that of defendant No. 2/petitioner. The collusion and/or conspiracy between the plaintiff and the defendant No. 1 is further evident from the action taken place on the date of hearing and passing the decree by the Court. Surprisingly, the plaintiff did not choose to proceed against the defendant No. 1 who was the principal debtor and actual beneficiary of the loan, if any. The case of the plaintiff as against the defendant is based on the acts of forgery and inflicting fraud upon the defendant No. 2/petittoner in order to get unjust enrichment at his cost.
7. Time and again learned counsels appearing in support of the petitioner made various submissions which are narrated hereunder. According to them, the sufficient cause for recalling and setting aside the decree dated 15th May, 2000 is based on a strong footing of the cause, Such cause appears to be basically two-fold, one is non-entry of the Advocate on record on behalf of the defendant No. 2 Insplte of giving instruction to appear and other in obtaining a decree by practicing fraud upon the Court. As per Section 134 of the Indian Contract Act, the surety is discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor. The document which was shown before the Court for the purpose of obtaining decree is not admissible in evidence as per Section 35 of the Stamp Act, 1899. At the time of passing the decree Court-granted leave to hand over a notarised copy of the document and take back the original document being Exhibit ‘B’ from the record of the Court with a further leave that such notarised copy will also be marked as Exhibit ‘B’ additionally but on Inspection of the record they did not find any notarised copy of the document dated 18th July, 1996 on which the whole case of the plaintiff as against the defendant No. 2/petitioner herein is banged.
8. The learned counsel appearing on behalf of the plain tiff/respondent contended before this Court that the decree is drawn up completed and filed. Therefore, the Court has no season over the matter, inspite of filing this application petitioner has not pressed for order in terms of Prayer ‘b’ for injunction etc. not take any step for drawing up a certified copy by the department and allowed such time to expire. Therefore, at thus belated stage Court should not be troubled with the application for recalling and setting aside the decree passed upon judging the merit of the cause. ‘Sufficient cause’ will be applicable only on the date and time when the decree was passed. Indirectly, an application under Order 9 Rule 13 of the Code of Civil Procedure cannot be converted to an application under section 47 of the same or for appeal or for review. The petitioner has not shown any diligence to the Court even in filing the application for recalling and setting aside by his pen and filed by the pen of constituted Attorney which is not tenable in law. Therefore, there is no scope of entertaining the prayer as made by the petitioner. Alternatively, if the prayer is entertained and the decree is recalled then it will be recalled in its entirety.
9. According to me, each every case has its own face value. A case to apply discretion cannot be equated with other since perameter of consideration of both the cases are based on different factual basis. Under normal circumstances, a cause of recalling or setting aside a decree cannot be merged with the factual basis of passing such decree. But where such factual basis is one of the grounds of recalling and/or setting aside, Court cannot refrain from taking into account of such fact. Therefore, when there is an element of fraud upon the Court is available the Court cannot be a silent spectator by confining the domain into the fixed principle of Order 9 Rule 13 of the Code of Civil Procedure. It is to be remembered that the basis of each and every case is not only fixed by the statute but by the statutory principles available for the purpose of ends of justice or to prevent the abuse of process of Court of Law. If the Court overlooks the element of fraud, if any, with a prefixed mind to proceed on the track of Order 9 Rule 13 of the Code of Civil Procedure alone then Court will ignore the possibility of nullification of a decree. There/fore test of bonafide is obvious. It is well known that each and every application before the Court of Law is to be governed by the specific statute with the principles laid down under Section 151 of the Code of Civil Procedure. Sometimes practice of the Court prescribes to write the sections but that does not necessarily mean the principles of ends of Justice or prevention of abuse of process of Court will not be available. That apart, this is not a case where it can be construed that the petitioner being defendant No. 2 was not prevented with the sufficient cause to appear on the date and time when the decree was passed. It is to be remembered that in this case the concerned Advocate on record did not enter into appearance in the suit meaning thereby did not file any Vakalalnama or Warrant of Attorney. Therefore, the very existence of the hearing of the suit was totally unknown to the litigant. The agency has done a serious lapse in discharging functions on behalf of the defendant No. 2/ petitioner. If the original action on behalf of the agent before the Court of Law is unavailable then the appearance of the litigant on the date and time when the decree was passed will also be unavailable. The original action of the agent i.e. the Advocate is sufficient cause for non appearing of the defendant No. 2/petitioner at the relevant date and time when the suit was heard and decree was passed. The date and time of passing the decree is independent of other affairs. When inspite of taking active participation either the litigant or the Advocate of the litigant does not choose to appear on the date and time definitely disqualify the petitioner but that does not necessarily mean that Court will be forgetful about the willingness of a litigant who was prevented by his own Advocate being the original source of action of the happening on the relevant date and time. Thus, I do not see any infirmity on the part of the petitioner in advancing his argument on the score. If the Court is of the view that there is a possibility of active concealment of the facts and circumstances of this case leading to fraud or forgery then the duty of the Court is to recall or set aside such decree or order Irrespective of the fact that such decree is drawn up completed and filed. Court’s Inherent power in doing so cannot be curtailed by the administrative procedures. As soon as the decree is recalled or set aside the original position prevailing prior to drawing up and complete the order stands restored. In (S.C. Cons (P) Ltd. v. Sm. Brahma Devi Sharma and Ors.) a Division Bench of this Court held that the Inherent right of the Court to recall an order before it is completed and filed is well settled and that power still exists. Ordinarily, no Court could modify or recall any final order after the said order is drawn up, completed and filed. But it is not an absolute proposition of law. The said proposition is only a general rule having some exceptions. By now it is well settled. Court has to construe whether exceptional circumstances exist or not. In the instant case decree is dated 15th May, 2000. The present application is filed on 21st June, 2000. No objection has been made by the plaintiff/respondent in condoning the delay, if any. Therefore delay has been condoned. Court proceeded with the merit of the application. The petitioner did not opt for an order restraining the department from drawing up and completing the decree, which was complained. Therefore, relevant dates are required to be checked up by the Court The date of drawing up the decree seems to be 8th March, 2001. The date of completion and filing of the decree is 23rd March, 2001. The application is made much anterior to those dates. Therefore, when application is made anterior to those dates and pending at the time of completion and filing of the decree it can not be said that Court had no seisin over the matter. Without having any Interim orderwhlch may operate as ouster of such seisin. Moreover passing of any final order in favour of the petitioner will automatically restore the original position of the file in such circumstances.
10. The principle of Order 9 Rule 13 is to prevent the wrong does from taking advantage of the situation but not to cause Injustice to any genuine litigant more particularly when non-filing of Vakalatnama or warrant of Attorney by the Advocate on behalf of the litigant either in the department of the Court or in the Court Itself cannot be co-extensive but a duty of an Advocate alone to whom the litigant engaged. Therefore, the ratio of (Salil Dutta v. T.M. and M.C. Private Ltd.) for the purpose of taking rigid stand against a defaulting party cannot be equated with the present case. In (supra) it has been held that a party cannot be made to suffer for the fault on the part of his Advocate If he himself is not at fault. Recently, the Supreme Court held in (G.P. Srivastava v. R.K. Raizada and Ors.) parallel to (G.P. Srivastava v. R.K. Raizada and Ors.) that the words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party.
11. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar fact and circumstances of each case. That apart, discharge of the principal debtor by the creditor at the time of passing decree to make a room to get relief from an absentee surety being petitioner herein can definitely make cloud in the mind of the Court about active concealment of fact, forgery etc. which may ultimately lead to fraud upon the Court and in the process towards the nullity. Therefore, any such element should not be escaped from the notice of the Court. Forbearance to sue against the principal debtor may not discharge a surety, if any, having co-extensive right but the same principle is not fit and applicable in the above situation.
12. Therefore, taking into totality of the matter I am of the view that the decree as passed against the defendant No. 2 on 15th May, 2000 should be recalled and/or set aside. But even having such goods cause when Court finds neither the petitioner applied before this Court by his pen nor Instructed his Advocate to proceed in quick succession of filing the same for recalling and/or setting aside decree the same can not be made unconditional but with condition of payment of cost assessed at 1000 G.M. equivalent to Rs. 17,000/- within a period of fortnight from the date of communication of the order. However, the defendant No. 2 if permissible in law and if advised will be entitled to recover such sum from the concerned Advocate-on-record who failed to discharge his duty as agent.
13. Prayer for stay as made by the respondent considered and refused. Oral prayer as made by the petitioner for time to file written statement is also refused at this stage with a leave to file formal application.
Xerox certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.
14. All parties are to act on a signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above.