SCA/19915/2005 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 19915 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = YAMUNA ENGINEERING COMPANY & 4 - Petitioner(s) Versus BANK OF BARODA & 2 - Respondent(s) ========================================= = Appearance : MR SHALIN N MEHTA for Petitioner(s) : 1 - 5. MR DARSHAN M PARIKH for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2 - 3. ================================================================== CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 16/01/2006 ORAL JUDGMENT 1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the legality and validity of the SCA/19915/2005 2/15 JUDGMENT final judgment and order dated 19.8.2005 passed by the Debts Recovery Appellate Tribunal (herein after referred to as 'The DRAT') passed in appeal No.199 of 2001 filed by the petitioners. The petitioners have also prayed to quash and set aside the judgment and order dated 1.8.2001 passed by the Debts Recovery Tribunal passed in Transfer Application No.49 of 1995 in Special Civil Suit No.158 of 1984. 2. The few facts are necessary for the determination of the present Special Civil Application :- The respondent – Bank of Baroda filed Summary Suit No.158 of 1984 against the petitioner No.1 and to recover a total amount of Rs.90,84,137.34 ps. with interest at the rate of 18% per annum from the date of suit till realization. That thereafter, the said suit was transferred to the Debts Recovery Tribunal, Ahmedabad on establishment of the Debts Recovery Tribunal at Ahmedabad pursuant to coming into force of the Recovery of Debts due to Banks and Financial SCA/19915/2005 3/15 JUDGMENT Institutions Act; 1993. The Debts Recovery Tribunal, Ahmedabad, passed a decree against the petitioners and in favour of the respondent – Bank of Baroda. The petitioners filed appeal before the DRAT, Mumbai under Section 20 of the Act of 1993 against the judgment and order dated 1.8.2001 passed by the Debts Recovery Tribunal, Ahmedabad, in appeal No.199 of 2001. The DRAT, Mumbai dismissed the said appeal on 16.7.2003 by passing the following order :- “For the reasons separately recorded, the following order is passed. Order Appeal No.199 of 2001 is dismissed.” 3. It was the contention on behalf of the petitioners that though it was recorded by the DRAT, Mumbai that the reasons were separately recorded for dismissing appeal No.199 of 2001, such reasons were never furnished to the petitioners. The petitioners preferred the Special Civil Application No.14365 of 2003 before this Court challenging the order dated SCA/19915/2005 4/15 JUDGMENT 16.7.2003 passed by the DRAT, Mumbai passed in appeal No.199 of 2001 and this Court issued Notice to the respondent – Bank in the said Special Civil Application and in the meanwhile, the recovery of monies from the petitioners were stayed. Thereafter, the said Special Civil Application No.14365 of 2003 came to be admitted by this Court. It appears that in the meantime, a copy of the reasons came to be supplied by the DRAT, Mumbai in the month of January – 2005 dismissing the appeal No.199 of 2001 and the same came to be communicated to the petitioner i.e. the reasons came to be communicated after a period of 1-1/2 years after the order dated 16.7.2003 passed by the DRAT, Mumbai. By the order dated 18.1.2005, the ad-interim relief granted by this Court, granted in the Special Civil Application No.14365 of 2003, came to be confirmed as interim relief. Being aggrieved and dissatisfied with the interim order, the respondent – Bank of Baroda preferred Letters Patent Appeal No.744 of 2005 in the month of April-2005 and the Division Bench of this Court disposed of the said Letters Patent Appeal No.744 of 2005 and also the SCA/19915/2005 5/15 JUDGMENT main Special Civil Application No.14365 of 2003 vide order dated 22.6.2005 and passed an order in the following terms :- “1. Order dated 16.7.2003 passed by the Appellate Tribunal in Appeal No.199 of 2001 is set aside. 2. The matter is remanded to the Appellate Tribunal for fresh adjudication of the aforesaid appeal. 3. The appellate Tribunal is requested to decide the appeal as early as possible, but latest by 30.9.2005. Till then, the interim order passed by this Court shall continue. 4. We hope and trust that the Appellate Tribunal will decide the appeal of respondent Nos.1 to 5 without being influenced by the proceedings of the Special Civil Application No.14365 of 2003 and Letters Patent Appeal No.744 of 2005. 5. The parties are directed to appeal before the Appellate Tribunal on July 14, 2005. Direct Service is permitted.” SCA/19915/2005 6/15 JUDGMENT 4. That on remand, the DRAT, Mumbai took up appeal No.199 of 2001 for final hearing and by final judgment and order dated 19.8.2005 dismissed the said appeal. Being aggrieved and dissatisfied with the same, the petitioners have preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India. 5. Shri S.N.Mehta, learned advocate appearing on behalf of the petitioners has assailed the judgment and order passed by the DRAT, Mumbai dated 19.8.2005 passed in appeal No.199 of 2001 in dismissing the same on the following grounds :- “(A) That it suffers from the smacks of total non-application of mind on the part of the DRAT. (B) That it is mechanical, irrational and unreasonable inasmuch as it is a more or less verbatim reproduction of the earlier order dated 16.7.2003 passed by the DRAT in appeal No.199 of 2001 which was vacated and set aside by the Division Bench of this Hon'ble Court vide oral SCA/19915/2005 7/15 JUDGMENT order dated 22.6.2005 in Letters Patent Appeal No.744 of 2005 with Special Civil Application No.14365 of 2003. (C) That it is unfair, unjust and illegal. (D) That it is violative of the principles of natural justice inasmuch as it records the same reasons for dismissing Appeal No.199 of 2001 which had been earlier given vide order dated 16.7.2003, which order was ultimately vacated and set aside by the Division Bench of this Court vide oral order dated 22.6.2005 passed in Letters Patent Appeal No.744 of 2005 with Special Civil Application No.14365 of 2003. (E) That it is against to the oral order dated 22.6.2005 passed by the Division Bench of this Court in Letters Patent Appeal No.744 of 2005 with Special Civil Application No.14365 of 2003 where-under the DRAT was directed to rehear and redecide Appeal No.199 of 2001 without being influenced by the proceedings of Special Civil Application No.14365 of 2003 and Letters Patent Appeal No.744 of 2005. (F) That there is a material irregularity in the exercise of appellate jurisdiction by the DRAT while deciding Appeal No.199 of 2001 filed under SCA/19915/2005 8/15 JUDGMENT Section 20 of the Act. (G) That, it is the result of abdication of judicial function by the DRAT.” 6. Shri Mehta, learned advocate appearing on behalf of the petitioners has submitted that though the matter was remanded to the DRAT by the Division Bench of this Court by order dated 22.6.2005 in Letters Patent Appeal No.744 of 2005, the DRAT has retained the very same order dated 16.7.2003 which was set aside by this Court in the aforesaid Letters Patent Appeal. Shri Mehta, learned advocate appearing on behalf of the petitioners has also submitted that the said final judgment and order dated 19.8.2005 passed by the DRAT is verbatim reproduction of the reasons given out earlier by the DRAT for dismissing the very appeal No.199 of 2001 vide order dated 16.7.2003 and not only that even the DRAT has not recorded the oral submission of the petitioners and/or their counsel made before it on 19.8.2005 and it has resulted into serious prejudice and injustice to the petitioners. Shri Mehta, learned advocate SCA/19915/2005 9/15 JUDGMENT appearing on behalf of the petitioners has even tried to submit on merits of the appeal assailing the judgment and decree passed by the Debts Recovery Tribunal but this Court has restrained him from making submission on merits assailing the judgment and decree passed by the Debts Recovery Tribunal as prima-facie this Court, for the reasons stated herein after, proposes to remand the matter to the DRAT, Mumbai for deciding the same afresh for considering the submission made on behalf of the petitioners. 7. In response to the notice issued by this Court, Shri D.M.Parikh, learned advocate appears on behalf of the respondent – Bank and has tried to support the judgment and order passed by the DRAT, Mumbai dated 19.8.2005 by submitting that the petitioners had no valid defence in appeal and he has also tried to argue on merits of the case by submitting that the petitioners did not have any valid defence even before the Debts Recovery Tribunal also and the decree against the petitioners is inevitable and therefore, without going into the technicalities, SCA/19915/2005 10/15 JUDGMENT Shri Parikh, learned advocate has requested to consider the same on merits instead of remanding the matter to the DRAT, Mumbai as sufficient time is passed, the Bank is not in a position to recover the amount from the petitioners due to one or other litigations and therefore, it is requested to dismissed the present Special Civil Application. 8. Heard the learned advocates appearing on behalf of the parties. 9. I have gone through the earlier order passed by the DRAT, Mumbai and the reasons supplied in the Month of January-2005 in support of dismissal of the appeal No.199 of 2001 and I have also gone through the impugned final judgment and order passed by the DRAT, Mumbai dated 19.8.2005. On going through the same, this Court is of the firm opinion that the subsequent final judgment and order dated 19.8.2005 is more or less verbatim reproduction of the reasons given out by the DRAT, Mumbai for dismissing the very appeal No.199 of 2001 vide order dated 16.7.2003 and SCA/19915/2005 11/15 JUDGMENT the said order came to be set aside by the Division Bench of this Court with the consent of the parties. The Division Bench of this Court remanded the matter to the DRAT, Mumbai to decide the appeal afresh and without in any way being influenced by the proceedings of Special Civil Application No.14365 of 2003 and Letters Patent Appeal No.744 of 2005, still the DRAT, Mumbai dismissed the appeal by verbatim reproducing the reasons which are given earlier and which were already set aside by this Court. It also appears from the record that on remand, the petitioners submitted the oral submissions through their counsel but nothing has been noted and/or discussed by the DRAT, Mumbai while passing the impugned final judgment and order dated 19.8.2005 and therefore, the purpose for which the appeal was remanded by the Division Bench of this Court is frustrated. On going through the impugned final judgment and order dated 19.8.2005 except making a note of the learned advocates appearing on behalf of the parties before paragraph – 2 there is no other change in the subsequent judgment and order and as SCA/19915/2005 12/15 JUDGMENT stated herein above, it is verbatim same which was passed on 16.7.2003 which came to be set aside by this Court and the matter was remanded. These shows either non-application of mind on the part of the DRAT, Mumbai and/or the impugned final judgment and order dated 19.8.2005 is passed in a mechanical manner. This Court did not remand the matter to the DRAT, Mumbai to pass the same order again. The purpose for remanding the matter by the Division Bench of this Court was to decide the appeal afresh and to give fresh reasons as the reasons were given while dismissing the appeal earlier after the period of 1-1/2 years which as per the law laid down by the Hon'ble Supreme Court was not permissible and/or at least not proper. Therefore, the impugned final judgment and order dated 19.8.2005 dismissing the appeal No.199 of 2001 cannot be permitted to stand and/or continue and the matter is required to be remanded to the DRAT, Mumbai again with a specific direction to the DRAT, Mumbai to pass an appropriate order afresh in accordance with law and on merits after considering and dealing with the contentions SCA/19915/2005 13/15 JUDGMENT and submission made on behalf of the petitioners- parties. And for this very reason, this Court did not hear the learned advocates appearing on behalf of the parties on merits and even has not considered the submissions made on behalf of the respondent – Bank that even otherwise, the petitioners do not have any meritorious case and/or they are not having any defence. Justice is not only to be done but it appears to have been done also and a fair opportunity of presenting their case by the petitioners and to consider their case has required to be given by the appellate tribunal and as stated above, the purpose for which the appeal was remanded was frustrated. 10. For the reasons stated above, the impugned final judgment and order dated 19.8.2005 passed by the DRAT, Mumbai passed in appeal No.199 of 2001 is hereby set aside and the matter is remanded to the DRAT, Mumbai for deciding the same afresh and to decide the appeal considering and dealing with the submissions and/or contentions made on behalf of the parties. As the appeal is of the year 2001 and it is SCA/19915/2005 14/15 JUDGMENT the contention on behalf of the respondent – Bank that the Bank is not in a position to recover the amount, due to various litigations and the matter is to be remanded again on technical ground, the DRAT, Mumbai is directed to decide and dispose of the appeal No.199 of 2001 as early as possible but not later then 6 (six) months from the date of receipt of this order and until then, the ad-interim relief, which is granted by this Court, which was also continued by the Division Bench of this Court while disposing of the Letters Patent Appeal No.744 of 2005, is directed to be continued. It is, however, made clear that this Court has not expressed any opinion on the merits of the case in favour of either parties and this Court has set aside the order passed by the DRAT, Mumbai wholly on the ground that while dismissing the appeal No.199 of 2001, verbatim the same reasons are given which were given earlier. 11. Rule is made absolute to the aforesaid extent, however, there will be no order as to costs. SCA/19915/2005 15/15 JUDGMENT (M.R.SHAH, J.) kdc.