Punjab-Haryana High Court
Ron Son Export House Pvt. Ltd. And Anr. vs The New Bank Of India Ltd. on 8 March, 1989
Equivalent citations: AIR1989P&H287, AIR 1989 PUNJAB AND HARYANA 287, (1990) 1 BANKLJ 285
JUDGMENT I.S. Tiwana, J.
1. A decree for Rs. 8,32,260.03 paise with costs has been passed by the Additional Senior Sub-Judge, Ludhiana, against the appellants by striking off their defence under Order 10, Rule 4(2), C.P.C. The respondent bank has further been made entitled to recover this amount with interest at the rate of 18% from the date of the suit, i.e., Mar. 14, 1980 to the date-of its realisation. The suit was tiled with the allegations that the bank provided the following credit facilities to the appellants : --
(i) Pre-shipment advances;
(ii) Packing credit (Shipping loan); (iii) Foreign Bills, Purchases, and
(iv) Post-shipment loan;
and the above noted amount was due to it on that account.
2. In order to appreciate the respective contentions of the parties now it is just necessary to notice the interim orders that led to the striking off the defence of the appellants and the passing of, the decree in question. Their verbatim reproduction is as follows : --
"(16-7-80) Present Counsel for the parties. Costs paid, written statement has been filed. To come up for replication and issues, admission and denial of documents and the statement of parties before issues. To come up on 30-7-1980. (30-7-80) Present : Counsel for the parties.
Replication has been filed. For defendants' admission and denial of documents, counsel for the defendant states that he has not been able to inform his client of the adjournment to have been granted. To come up on 8-8-1980 for statement of parties on issues, of admission and denial of documents, (8-8-1980) Present: Counsel for the parties.
It is started by counsel for both the parties that a talk for compromise is in progress and the date has been prayed for. To come up on 28-8-80 either for compromise or statements of parties before issues and admission and denial of documents, as already ordered :
(28-8-80) Present: Counsel for the parties.
Compromise not effected. None for the defendant has been produced for recording their statements. East opportunity is granted to the defendants to produce the defendants for recording their statements, and for admission and denial of document on t7-9-80."
3. Since the defendants failed to appear in Court on the date fixed, i.e., on Sept. 17, 1980, the impugned decree was passed. .
4. Mr. Jain, appearing for the appellants strenuously contends that that order under this Rule could only be passed if the Court was of the opinion that there was a material question/questions relating to the suit which required to be answered by the defendants (now appellants) and their counsel was either not able to answer the same or had refused to do so. In other words, no such order for the appearance of the defendants could be passed if their counsel was able to or prepared to answer the questions which the Court had in mind. He also maintains that opinion of the Court as reflected in the order should be specific and sufficiently explicit to indicate as to what the defendants or their counsel is required to answer on the date fixed and the mere direction that the defendants should appear on the date fixed to admit or deny the documents placed on record is not sufficient and is no compliance of the pre-requisites of an order passed under Sub-rule (2). As against this the stand of Mr. Aggarwal, learned counsel for the respondent bank is that the Court is not under an obligation to record the specific questions in its order which are required (o be answered by the counsel or the party concerned. He further emphasises that in the case in hand the orders reproduced above clearly indicate what was required to he put to the defendants and that their counsel was not in a position to answer those questions. According to Mr. Aggarwal, had it been otherwise the appellants' counsel in the trial Court would have straightway said that he was willing and ready to answer the questions urt had in mind. Since the counsel did not disclose any such intention, it has to be assumed that either he was not willing or had refused to answer the questions the replies to which were to be obtained by the Court.
5. Having given my thoughtful consideration to the entire matter, though I am inclined to accept the stand of the learned counsel for the appellants that in the instant case till their counsel in the trial Court had either expressed his unwillingness or refusal to answer the questions which the Court wanted to elicit, there was no justification either to summon the defendants for the said purpose or to strike off their defence, yet the contention of the learned counsel that there should have been a formulation of the questions which the Court wanted to put to the defendants deserves to be rejected. No doubt, it is true that the intention of the rule is to enable the Court not only to get obscure points clearly by obtaining the information from either of the parties but also, if possible, to get admissions so as to narrow down the issues raised in the pleadings but the rule being a penal provision, its terms have essentially to be applied strictly before the Court can justifiably pass an order striking off the defence of a party. It is abundantly clear from the phraseology of the rule itself that before the Court requires the personal appearance of a party, it should essentially examine the parties' counsel and if it still feels that further elucidation of any point or question is necessary it may call the party in person. As has been observed by this Court earlier in Shri Saraswati Spinning Mills, Bhiwani v. M/s. Gheru Lal Bal Chand Abokar, AIR 1981 Punj and Har 299 normally the admission or denial of a document is done by the counsel for the parties and it is only when the counsel is unable to do that that the necessity may arise for summoning the party in person. The trial Court appears to have completely ignored this aspect of the matter while striking off the defence of the defendant-appellants. I, therefore, find it impossible to sustain the approach and the conclusion, i.e., the granting of the decree by striking off the defence of the appellants.
6. Thus, for the reasons recorded above, this appeal is allowed and while setting aside the judgment and decree in question I send the case back to the trial Court for decision afresh in accordance with law. It hardly need be emphasised that since the matter has been over-delayed, the Court will make it convenient to decide it at the earliest, i.e., without any undue loss of time.
7. The parties through their counsel are directed to appear before the trial Court on 27th Mar, 1989.