T.A. No. 53 of 2002 (R.A. No. 1 of 2002) DRT III. Case: Punjab National Bank Vs Boericke Homeo Pharmacy and Ors.. Kolkatta Debt Recovery Tribunals

Case Number:T.A. No. 53 of 2002 (R.A. No. 1 of 2002) DRT III
Party Name:Punjab National Bank Vs Boericke Homeo Pharmacy and Ors.
Counsel:For Appellant: D.B. Das, Adv. and For Respondents: S.S. Pandey, Adv.
Judges:D.C. Thakur, Presiding Officer
Issue:Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 22(2); Code of Civil Procedure, 1908 (CPC) - Section 114 - Order 47, Rules 1 and 5
Citation:III (2004) BC 89
Judgement Date:November 07, 2002
Court:Kolkatta Debt Recovery Tribunals
 
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Judgment:

D.C. Thakur, Presiding Officer.

  1. This day has been fixed for delivering an Order in connection with an application preferred by the aggrieved applicant Bank under Clause (e) of Sub-section (2) of Section 22 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (Act No. 51 of 1992) against the judgment delivered by this Tribunal on Wednesday, June 19, 2002 in the case of TA/53 of 2002 arising in the matter of Punjab National Bank, Garpar Branch, III-A, Acharya Prafulla Chandra Road, Kolkata-700 009 v. Boericke Homoeo Pharmacy and 4 Ors.

  2. In the said judgment, I was pleased to direct by an Order to allow the application preferred by the applicant Bank; and was also pleased to direct all those respondents to pay a sum of Rs. 2,09,723.87 by way of two instalments to be made payable to the applicant Bank.

  3. That application was preferred before this Tribunal under the aforequoted legal provisions on Wednesday, July 17, 2002 (before this Tribunal), Thereafter, those respondents were found to have paid Rs. 1,09,723.87 as the first instalment on Monday, July 22, 2002 to be followed by another instalment 'paid by those respondents which is worth of Rs. 50,000/- to the applicant Bank. The second instalment was paid by those respondents on Friday, August 23, 2002. Those payments were in fact received by Shri P. Mal, the applicant petitioner on behalf of the applicant Bank without prejudice to the rights and contention of the said applicant.

  4. A copy of the review application was found to be accompanied by a fee of Rs. 5,000/; and in strict compliance with the direction issued by the learned Registrar-in-charge of the Registry of this Tribunal, a copy of such application was served upon those respondent-cum-opposite parties. The said application for review was challenged vehemently in the written objection rued by those opposite parties-cum-respondents on Monday, August 12, 2002. In compliance with a direction issued by this Tribunal, the applicant Bank filed one written reply on Wednesday, September 11, 2002 wherein it made reply after reply to the objections, raised by those respondents in their written objection; mention may be made of that on Thursday, August 22, 2002 those respondents made one application for the reason of passing the modification of the Order made on Wednesday, June 19, 2002. In that application it has been averred by those respondents-cum-opposite parties that as those ones have already paid a total sum of Rs. 10.25 lakhs to the applicant Bank, there has been made a succinct plea and prayer for modification of the said Order being accompanied by a further prayer to allow those respondents to pay Rs. 50,000/- as the second instalment on Thursday, August 22, 2002. To that application as the applicant Bank had been found not to have raised any objection, those respondents were granted liberty on Friday, August 23, 2002 to pay the said amount. Accordingly, this Tribunal became of the view that the Order passed on June 19, 2002 was found that day to have been fully carried out by way of paying two instalments in this Tribunal on two different days and dates, so far as the contention of those opposite parties is concerned.

  5. At last there were advanced in detail the respective arguments by the contending parties. After the completion of oral submission, those parties submitted the written arguments in accordance with the provisions contained in Sub-rule 3(a) of Rule 2 of Order XVIII of the First Schedule to the Code of Civil Procedure, 1908 (Act No. 5 of 1908), before this Tribunal. The copies of such written arguments were mutually exchanged in between themselves.

  6. The only point raised before this Tribunal is whether the application preferred by the applicant on July 17, 2002 against the judgment pronounced on Wednesday, June 19, 2002 in TA 476 of 1995 is maintainable within the yardstick of Clause (e) of Sub-section (2) of Section 22 of the said Act.

  7. It is pertinent here to throw light on what the above mentioned legal provision means for and for what aim and object the said legal provision has been manifestly meant for. For the convenience, let Clause (e) of Sub-section 2 of Section 22 of the said Act be quoted verbatim here;..........(e) 'reviewing its decisions'..........True to say, the aforequoted clause appears ex facie to be a not self-executing one.

  8. What is meant by the word 'review"? Or how the word 'review' is understood and given a treatment in the contemporary judicial world? For such purpose a comparative method should be adopted, By the word of 'reviewing its decisions' the Legislature had the intentions of, viz.,

    (a) creating power of reviewing in favour of a Court or a Tribunal; and

    (b) conferring the right upon an aggrieved party or person to invoke further a jurisdiction of review of the said Tribunal or Court for the purpose of reviewing or re-examining its decision which has really acted upon the applicant aggrieved party.

  9. In a word, it can be safely said that unless there is no power of review granted to a Tribunal, no aggrieved person shall be permitted to make or be able to make an application for review. Accordingly, the application preferred by the applicant Bank on Wednesday, July 17, 2002 against the judgment pronounced on Wednesday, June 19, 2002 has been made in exercise of the right conferred upon the applicant Bank under the legal provision as above. As questioned earlier what is 'review', one would for reply necessarily take the help from the provisions contained in Section 114 of the Code of Civil Procedure (hereinafter referred to as the 'Code'). Section 114 is being oft-quoted below:

    114. Review--Subject as aforesaid, any person considering himself aggrieved--

    (a) by a decree of order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

    (b) by a decree or order from which no appeal is allowed by this Code, or

    (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

  10. Again, one is being advised to consider also Order XLVII of the First Schedule to the said Code. The detailed provision in that Order read alongwith Section 114 of the said Code has prescribed the requisites for such application intended to be made by an aggrieved party or person.

  11. Again, for the convenience of itself that Order of the said Code is being quoted verbatim below by this Tribunal:

    "ORDER XLVII--Review

  12. Application for review of judgment.-

    (1) Any person considering himself aggrieved:

    (a) by a decree of order from which an appeal is allowed but from which no appeal has been preferred,

    (b) by a decree of order from which no appeal is allowed, or

    (c) by a decision on a reference from a Court of Small Causes,

    and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake of error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, any apply for a review of judgment to the Court which passed the decree or made the order.

    (2) A party who is not appealing from a decree or order may apply, for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

    (Explanation.--The fact that the decision on a question of law on which the...

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