Delhi District Court
State Bank Of Patiala vs M/S. Adhunik Fabrics & Anr on 27 November, 2014
1
IN THE COURT OF SH. PARAMJIT SINGH : ADDL. DISTRICT JUDGE
(WEST)02, TIS HAZARI COURTS:DELHI
M No. 28/06
In
CS No. 193/03/97
Unique ID case No. 02401C0697902006
State Bank of Patiala ... Plaintiff
Vs.
M/s. Adhunik Fabrics & Anr. ... Defendants
ORDER:
Vide this order, I shall dispose of an application u/s 114 r/w Section 151 CPC r/w Section 5 of Limitation Act for review of judgment/decree dated 05.11.2005 passed by one of the Ld. Predecessors of this court, moved on behalf of the applicant/plaintiffState Bank of Patiala.
2. Brief facts necessary for disposal of the present application are that a suit u/o 34 CPC for recovery of suit amount alongwith interest and cost thereon was filed on behalf of the plaintiff bank against the defendants. In the said plaint, it has been stated that the plaintiff bank is a body corporate constituted under the State Bank of India (Subsidiary Banks) Act 1959 and the said suit was filed through the M No. 28/06 1/9 2 Chief Manager of Nehru Place Branch who was competent and authorized to file the said suit. It is further stated that defendant no. 1 is sole proprietorship firm and defendant no. 2 has been its continuous guarantor, who also equitably mortgaged its property to secure the repayment in their account. It is stated that defendant no. 1 through its sole proprietor Sh. Anil Pruthi applied for cash credit limit to meet the requirements of working capital of the firm. The defendant no. 1 submitted the loan application dated 30.12.1993 proposing therein the finance requirements of Rs.8 lacs accompanied with the financial biodata justifying the requirements of credit facility. The plaintiff bank after usual verifications, sanctioned a Cash Credit (Hypothication) limit for Rs.5 lacs vide Letter of Arrangement dated 11.01.1994 which was duly signed and returned by the defendants and in lieu thereof, the defendants executed D.P Note for Rs.5 lacs with interest @ 3.35 % above the SBI advance rate with minimum 18.25 % p.a with quarterly rests. In addition to this, defendants also executed DP Note Delivery Letter, Agreement for Cash Credit, hypothecating all their stocks, Guarantee FormB signed by defendant no.2. Further, the defendant no.2 also deposited the title deed of his property no. 208, Prakash Mohalla, East of Kailash, New Delhi as collateral security and created an equitable mortgage in favour of the plaintiff bank and confirmed the same by sending a registered letter to the plaintiff bank. It is stated that defendant no. 1 availed the limit to its fullest extent and all the amounts withdrawn, debits and credits were entered on the date (s) in the usual course of banking business in the account of defendant no.1. It is further stated that after availing the aforesaid facility, the defendant M No. 28/06 2/9 3 defaulted in adjusting the outstanding and further the firm was found closed with no business activities carried on and there were no stocks at the godown of the firm and the defendants failed to regularize the account, despite requests. It is also stated that as per Statement of Account, a sum of Rs.7,17,520.77 was outstanding against the defendants which the defendants failed to repay despite repeated requests and reminders including legal notice dated 09.06.1996, which resulted in the filing of the present suit u/o 34 CPC.
3. Upon filing of the suit, the summons were issued to the defendants, however they could not be served through ordinary means and accordingly they were served by way of publication in the newspaper 'The Statesman' on 26.04.2004, however none appeared on behalf of the defendants despite service and accordingly the defendants were proceeded against exparte vide order dated 14.05.2004 passed by one of the Ld. Predecessors of this court.
After the exparte trial, the suit of the plaintiff was decreed for a sum of Rs.7,70,520.77 with interest @ 6% from the date of decree till realization and cost vide judgment/decree dated 05.11.2005 passed by one of the Ld. Predecessors of this court.
4. Aggrieved by the above said simple money decree passed by one of the Ld. Predecessors of this court, the plaintiff bank filed the present application u/s 114 r/w Section 151 CPC for review of the aforesaid judgment/decree as the present suit was filed on behalf of the plaintiff bank in accordance with the provisions of Order M No. 28/06 3/9 4 XXXIV of the CPC.
5. Upon filing of the above said application, notice of the said application was issued to the defendants, however the defendants could not be served through ordinary means and accordingly they were served by way of publication in the newspaper 'The Statesman' on 01.12.2007.
The perusal of the record reveals that none has appeared on behalf of the defendants despite above said service by way of publication in the newspaper 'The Statesman'.
6. I have heard the arguments on the present application u/s 114 r/w Section 151 CPC and have carefully gone through the record of the case.
7. It has been submitted on behalf of the applicant/plaintiff that the plaintiff bank has filed the present suit u/oXXXIV CPC for recovery of suit amount alongwith cost and pendente lite and future interest from date of filing of the suit till realization against the defendants and therein the plaintiff bank has also prayed for passing of a preliminary decree in respect of mortgage properties of defendants in accordance with the provisions of order XXXIV CPC. It is further submitted that the said suit was adjudicated and a simple money decree for a sum of Rs.7,17,520.77 with cost and future interest @ 6% p.a was passed in favour of the plaintiff bank and against the defendants vide judgment/decree dated 5.11.2005 passed by one of the M No. 28/06 4/9 5 Ld. Predecessors of this court. It is submitted that it has all along been the case of the plaintiff bank that defendant no. 2 has created equitable mortgage in favour of the plaintiff bank in respect of the property bearing no. 208 Prakash Mohalla, East of Kailash, New Delhi by depositing the title deeds with the plaintiff bank for securing repayment towards loan facilities granted to the defendant no.1. It is further submitted that the aforesaid fact of creation of equitable mortgage by depositing title deeds with the plaintiff bank by defendant no. 2 to secure the credit facilities extended to the defendant no. 1 was proved by adducing exparte evidence by the plaintiff bank and the said fact has been duly mentioned in Para4 of the judgment/ decree dated 5.11.2005 passed by one of the Ld. Predecessors of this court, however due to an error apparent on the face of record the aforesaid fact does not find mentioned in the relief granted by the Ld. Predecessor of this court. It is further submitted that the aforesaid inadvertent error came to the notice of plaintiff bank after having perused certified copy of the aforesaid judgment/decree for filing the execution and accordingly the present review application has been preferred by the plaintiff bank. It is also submitted that in view of the above said error apparent in the judgment/decree passed by one of the Ld. Predecessors of this court, the plaintiff bank is entitled to a preliminary decree u/o XXXIV rule 4 CPC and it has been prayed that the aforesaid judgment/decree dated 5.11.2005 passed by one of the Ld.Predecessors of this court may be reviewed and a preliminary decree in respect of the mortgaged property bearing no. 208, Prakash Mohalla, East of Kailash, New Delhi may be passed in favour of the plaintiff and against the defendants.
In support of his contentions, Ld. counsel for the applicant/plaintiff M No. 28/06 5/9 6 relied upon the case law cited as AIR 1980 SC 2041, Manu/MH/0296/1989, Manu/JH/0103/2002 and Manu/DE/2100/2008.
8. I have carefully considered the arguments put forward on behalf of the applicant/plaintiff and have carefully gone through the record of the case. I have also carefully perused the caselaw relied upon by the Ld. Counsel for the plaintiff.
9. The present application has been filed on behalf of the plaintiff for review of the aforesaid judgment/decree dated 5.11.2005 passed by one of the Ld.Predecessors of this Court.
Section - 114 of the CPC deals with the review and it provides as under :
"114. ReviewSubject as aforesaid any person considering himself aggrieved.
(a) by a decree or 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"
M No. 28/06 6/9
7
In view of the above provisions of Section114 CPC, it is clear that any person aggrieved by a decree or order may apply for review of the said decree/order.
The aggrieved person can apply for the above said review on the discovery of new and important matter or evidence which after exercise of due diligence was not within his knowledge or could not have been produced by him at the time when the decree was passed. Further, a judgment/decree can also be reviewed on account of some mistake or error apparent on the face of the record or for any other sufficient reasons.
10. In the instant case, the perusal of the record reveals that the plaintiff has filed the suit for recovery of the suit amount alongwith interest and cost thereon in accordance with provisions of order XXXIV CPC and therein the plaintiff has prayed for a decree for recovery of the suit amount alongwith interest and it has also been prayed that a preliminary mortgage decree u/o XXXIV rule 4 CPC for recovery of suit amount and interest may also be passed in favour of the plaintiff and against the defendants .
The perusal of the record further reveals that in the judgment dated 05.11.2005 passed by one of Ld. Predecessors of this court, a simple money decree was passed and the suit of the plaintiff has been decreed for the suit amount alongwith interest @ 6% p.a from the date of decree till realization. Cost of the suit have also been awarded to the plaintiff. The perusal of the record also reveals that during the trial of the suit, the plaintiff has duly proved that defendant no. 2 has created equitable mortgage in favour of the plaintiff bank in respect of the property M No. 28/06 7/9 8 bearing no. 208 Prakash Mohalla, East of Kailash, New Delhi by depositing the title deeds with the plaintiff bank for securing repayment towards loan facilities granted to the defendant no.1. Further, the perusal of the said judgment dated 05.11.2005 reveals that the applicability of the provisions of the order 34 of the CPC have not been discussed therein although plaintiff has filed the present suit in accordance with the provisions of order XXXIV of the CPC and has prayed therein for the passing of a preliminary mortgage decree u/o 34 rule 4 CPC for recovery of suit amount and interest.
In view of the above and in view of the material on record, it appears that while passing the judgment/decree dated 05.11.2005, one of the Ld.Predecessors of this court inadvertently failed to consider the fact that the instant suit was filed in accordance with the provisions of order 34 of the CPC and the plaintiff therein has prayed for passing of a preliminary decree in terms of the provisions of order 34 rule 4 CPC. Hence, there appears to be error apparent in the judgment/decree dated 05.11.2005 passed by one of the Ld. Predecessors of this court in this case and the said error is required to be rectified .
11. Thus, in view of the above discussion & observations and in the interest of justice, the judgment/decree dated 05.11.2005 passed by one of the Ld.Predecessors of this court in this case is modified to the extent that a preliminary decree u/o XXXIV CPC is passed in favour of the plaintiff and against the defendants for a sum of Rs. 7,17,520.77 alongwith interest @ 6 % p.a from the date of decree till realization and cost.
M No. 28/06 8/9 9
The defendants are directed to pay the abovesaid entire decreetal amount alongwith interest and cost to the plaintiff by 27.05.2015 failing which the plaintiff will be entitled to pray for final decree for the sale of mortgaged property i.e. property no. 208, Prakash Mohalla, East of Kailash, New Delhi.
It is further ordered that in the event, the sale proceeds realized from the sale of the said property are insufficient to cover the decreetal amount alongwith interest and cost thereon, the plaintiff will be at liberty to recover the balance amount from the defendants and the defendants will be liable to pay the deficient amount.
Preliminary decree u/o XXXIV CPC be prepared accordingly. In view of the above, the present application u/s 114 r/w Section 151 CPC r/w Section 5 of Limitation Act stands disposed of.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 27.11.2014) ADJ02 (West)
Tis Hazari Courts Delhi
27.11.2014
M No. 28/06 9/9
10
M No. 28/06
In
CS No.193/03/97
27.11.2014
Present : None.
Vide separate order, announced in the open court, the present application u/s114 r/w Section 151 CPC r/w Section 5 of Limitation Act moved on behalf of the applicant/plaintiff have been disposed of and accordingly, a preliminary decree u/o 34 CPC have been passed .
Preliminary decree u/o34 CPC be prepared accordingly.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 27.11.2014) ADJ02 (West)
Tis Hazari Courts Delhi
27.11.2014
M No. 28/06 10/9