HONOURABLE SMT. JUSTICE T.MEENAKUMARI & HONOURABLE SRI JUSTICE P.S. NARAYANA A.S. No:740 OF 2005 Dated: 7.7.2010 Between: 1. M/s. Sri Subramanyeswara Fertilisers and others ..Appellants And M/s. E.I.D. Parry India Limited .. Respondent. This Court made the following HONOURABLE SMT. JUSTICE T.MEENAKUMARI & HONOURABLE SRI JUSTICE P.S. NARAYANA A.S.No:740 OF 2005 JUDGMENT: (Per Hon’ble Sri Justice P.S. Narayana) The unsuccessful defendants 1 to 3 in O.S.No.79 of 2003, dated 9.6.2005 on the file of the VII Additional District Judge (Fast Track Court), Krishna at Vijayawada, being aggrieved of the judgment and decree made therein, had preferred the present appeal. Sri K.K. Chakravarty, the learned Counsel representing the appellants would maintain that the appellants being indigent persons, a report had been called for and the same had been accepted and the appeal was numbered. The learned Counsel also would maintain that even the reasons recorded in the judgment, if examined, the same cannot answer the expression “Judgment” within the meaning of the provisions of the Code of Civil Procedure. The learned Counsel also further had taken this Court through the specific grounds raised in the grounds of appeal viz., grounds No.2,3,4,5,6 and 7 in particular and would maintain that though it may be that the said judgment had been styled as an exparte judgment or as exparte decree, unless the same answers the expression “Judgment” within the meaning of the Code of Civil Procedure, the said decree and judgment cannot be sustained and hence, to give an opportunity to the appellants, the matter needs a remand. Per contra, Sri B. Nalin Kumar, the learned Counsel representing the respondent-plaintiff would maintain that the procedure as contemplated by the Code of Civil Procedure in relation to the enquiry into the indigent persons had not been followed and even otherwise the judgment being an exparte, no further reasons can be expected to be recorded by the learned Judge and that in the light of the expression, what had been made in the judgment, since answers the expression “Judgment”, within the meaning of the Code of Civil Procedure, the appeal is liable to be dismissed. Heard the learned Counsel. Perused the averments made in the plaint and also the judgment, which is under challenge. In the light of the submissions made by the learned Counsel on record, the following points arise for consideration in this appeal: 1) Whether the judgment under challenge can be said to be a judgment in the eye of law in the facts and circumstances of the case? 2) Whether the findings recorded by the learned VII Additional District Judge (Fast Track Court), Krishna at Vijayawada in O.S.No.79 of 2003 are to be confirmed or to be disturbed or to be modified or to be set aside in the facts and circumstances of the case ? 3) If so, to what relief the parties are entitled? POINTS NO.1 & 2: For the purpose of convenience, both the points are being discussed together. The parties hereinafter would be referred to as plaintiff and defendants as shown in O.S.No.79 of 2003 for the sake of convenience. It is needless to say that the unsuccessful defendants 1 to 3 are the appellants in the present appeal. It would be appropriate to have a glance at the judgment, which reads as hereunder: “ I.A.No.66/05, 67/05 are dismissed. Proof affidavit is already filed. Exs.A1 to A10 marked. Suit claim is proved. Suit is decreed with costs for Rs.62,57,563/- towards principal + Rs.14,72,090/- with subsequent interest at the rate of 12% from date of suit till date of decree and thereafter 6% from the date of decree till realization on principal amount of Rs.62,57,563/-. In the result, the suit is decreed with costs for Rs.62,57,563/- towards principal + Rs.14,72,090/-, with subsequent interest at the rate of 12% from the date of suit till date of decree and thereafter 6% from the date of decree till realization on principal amount of Rs.62,57,563/-.” Section 2(9) of the Code of Civil procedure defines “Judgment” as in the Act, unless there is anything repugnant in the subject or context, the statement given by the judge on the grounds of a decree or order. Order XX of the Code deals with JUDGMENT AND DECREE. Order XX Rule 4(2) of the Code dealing with Judgments of other Courts specifies Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. In SURENDRA SINGH v. STATE OF UP[1] it was observed that “Judgment” may mean the final decision of the Court intimated to the parties and to the world at large by formal ‘pronouncement’ or ‘delivery’ in open Court. In SWARNA LATA GHOSH V. H.K. BANERJEE[2] it was held that “Trial of a civil dispute is intended to achieve, according to law and the procedure of the Court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties, and adjudication by a reasoned Judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its solution. It is needless to say that recording reasons can be said to be an essential facet of the very judicial determination. In BERGER PAINTS INDIA LIMITED, KOLKATA v. SYED VICARUDDIN[3] at paragraphs 10 and 11 the learned Judge observed as hereunder:- “10.In an adversarial system of litigation, the written statement or the counter-affidavit, as the case may be, certainly plays an important role on the outcome of the proceedings. However, even where the opponent remains ex parte, the same does not absolve of the Trial Court of its obligation to examine the matter with reference to the settled principle of law, or the requirements under the CPC itself. It is not as if any suit presented to a Court can be decreed straightaway, on the sole ground that it was not opposed by other party. Rule 11 of Order 7 CPC., imposes heavy duty on the Court, to examine whether the plaint discloses the cause of action, or whether the relief claimed in the suit is barred by any law etc. 11. Limitation is another aspect, which the Court is under an obligation, which has to be examined by the Court on its own accord, irrespective of any plea by the opponent in a suit. Order 20 CPC., particularly Rules 4 and 5 thereof, mandate that the judgments of Courts other than small Cause Court, shall contain concise statement of facts, points for determination, and the decisions therein and the reasons for such decision. Compliance with these requirements does not depend on the existence or otherwise of a defence by the opponent. It indirectly suggest that non-compliance with the conditions referred to therein, render the judgment either as invalid or inoperative.” In SMT.V. NAGALAKSHMI v. SEETHARAMA FINANCE CORPORATION[4] it was held at paragraphs No.11 and 14 as under: “11.The learned Counsel had also placed strong reliance in this decision and contended that this judgment though made exparte is not in conformity with the provisions of the Code. I have already pointed out the difference in the language between Order XX Rule 4 (2) of the Code and Order XX, Rule 4 (1) dealing with the judgment of a Small Causes Court specifies that such judgment need not contain more than the points for determination and the decision thereon. When the impugned judgment is looked into, the Court has to arrive at an unavoidable conclusion that it is not in accordance with Section 2 (9) read with Order XX, Rule 4 (1) of the Code. When it is not in conformity with the aforesaid provisions, it cannot be said to be a judgment in the eye of law. 14. I am conscious of the fact that if the Courts are expected to write judgments in detail in such cases of exparte nature, it will consume sufficient time. But however, at the same time, the Courts are expected to apply their mind to the facts of the case, matters in controversy, though the opposite party had not made appearance, even while making exparte judgments of this nature, it is better to set out the facts also in brief and then make a judgment in accordance with the provisions of the Code, specified supra.” In AZIZ AHMED KHAN v. I.A. PATEL[5], the Full Bench of this Court while dealing with the aspect of pronouncement of Judgments and duty of Courts observed as follows: “While pronouncing Judgments the Courts should apply their minds to the facts of the case and the points at issue, and give a reasoned judgment thereon after duly evaluating the evidence adduced and after considering the contentions of the parties. Judgment not in conformity with Order 20 Rule 4(2) is not a Judgment at all.” It is no doubt true that in the apex of evidence, P.W.1 G. Sridhar had been referred to and Exs.A1 to A10 also had been shown. Though it is an exparte judgment, in a matter of this nature, the learned Judge is expected to apply his mind to record the averments made in the plaint in brief and then ultimately arrive at a conclusion as to whether the suit is to be decreed or not, in the light of the evidence available on record viz., evidence of P.W.1 and Exs.A1 to A10. This exercise was not done by the learned Judge. Hence, this Court is of the considered opinion that the judgment under challenge cannot answer the expression “Judgment” within the meaning of the Code of Civil Procedure. Therefore, we are inclined to set aside the said decree and judgment to make the matter remand to give an opportunity to both the parties to let in further evidence and decide the matter afresh in accordance with law. It is no doubt true that the appellants-defendants had not chosen to contest the matter before the trial Court. However, inasmuch the matter is remanded, they are at liberty to contest the matter, if they are advised to do so. With the above observations, the decree and judgment of the trial Court is hereby set aside and the matter is remanded to the trial Court to dispose of the same in accordance with law at the earliest point of time. At this stage, it is relevant to note that in ASCMP No.1801 of 2009 filed by the respondent-plaintiff seeking to vacate the interim order dated 15.4.2009 in ASCMP No.2529 of 2005, it is stated at paragraph No.4 that it has come to notice of the plaintiff-company that ING Vysya Bank Limited, Narsaraopet filed O.A.No.63 of 2006 on the file of the Debt Recovery Tribunal at Visakhapatnam against the defendants for recovery of money and the said O.A. was decreed for a sum of Rs.28,89,769-40 ps., with interest at 16% p.a. including 2% penal interest with monthly rests from the date of application till the date of realization. It is also stated that as the defendants committed default in payment of the amount decreed in O.A.No.63 of 2006, the properties belonging to the defendants bearing Door No.6- 01-174, situated in Municipal New ward No.1, Old Sy.No.355/A, New Survey T.S.No.437 situated at Narasaraopeta town and also land to an extent of 91½ sq. yards equivalent to 76-50 sq. metres covered by TS No.437 Old Sy.No.355/A situated at Narasaraopeta Municipal Old Ward No.1 and New Ward No.6 in Sattenapalli Road and Kakumanivari Street in 6th locality, Pattabhiramaswamyvari building in Guntur District were brought to sale and order of confirmation of sale of immovable property was issued in favour of Sri M. Chakravarthy and Sri M. Kishore Kumar for consideration of Rs.1,55,70,000/-. It is also stated that the said purchasers have deposited the amount with the Recovery Officer. In view of the above circumstances, it is made clear that ING Vysya Bank, Narasaraopet is at liberty to recover the amount due to it. But however, it is made clear that if surplus amount is taken away by the appellants-defendants, the plaintiff would be put to serious loss and therefore, in the light of the facts and circumstances of the case, let the surplus amount may not disburse for a period of eight weeks from the date of receipt of a copy of this judgment and liberty is given to the plaintiff in the present appeal to move appropriate application in this regard before the trial Court. POINT No.3: In the result, the appeal is allowed making an order of remand and let the trial Court dispose of the matter as specified supra at the earliest point of time, preferably within a period of three months from the date of receipt of a copy of this judgment. No order as to costs. ____________________ Justice T. Meena Kumari _________________ Justice P.S. Narayana Date: 7th July, 2010 Note: Dispatch immediately (B/O) Nn. HONOURABLE SMT. JUSTICE T.MEENAKUMARI & HONOURABLE SRI JUSTICE P.S. NARAYANA A.S. No:740 OF 2005 (Judgment delivered by the Hon’ble Sri Justice P.S. Narayana) 07.07.2010 [1] AIR 1954 SC 194 [2] (1969) 1 SCC 709 [3] 2005 (1) ALD 154 [4] 2002(1) An.W.R. 163 (A.P) [5] AIR 1974 A.P.1