1. This one is only a transfer application by the petitioner-debtors praying for withdrawal of Original Application No. 44 of 2002 that entails a very large amount of money to the tune of Rs. 1,43,91,840.25.
2. The said Original Application No. 44 of 2002 pending for disposal before Mr. Thyagaraja Naidu, Presiding Officer, D.R.T., Cuttack.
3. The prayer of the petitioners is to render substantial justice to the parties by withdrawing the said Original Application No. 44 of 2002 from the said Presiding Officer of the D.R.T., Cuttack and transfer the same to any other Tribunal convenient to all the parties.
4. It appears, the main reasons attributed by the petitioners are "bias" on the part of the Presiding Officer of the D.R.T. in passing certain orders in the course of the proceeding and denial of natural justice to the petitioners.
5. Some of the facts/orders highlighted in the course of submission made on behalf of the petitioners by the learned Advocate to complain of 'bias' on the part of the Presiding Officer, D.R.T., are briefly stated hereinbelow: (i) On 11th June, 2002, application in Miscellaneous Application No. 141 of 2002 moved by the Bank for an order of injunction was granted by the D.R.T. ex parte.
(ii) The Bank on 28th June, 2002 further filed Miscellaneous Application No. 156 of 2002 wherein the Tribunal passed an order of interim attachment of the amount lying in the hands of Garnishee without hearing the defendants and without complying with the provision of Sub-section (13) of Section 19 of the RDDBFI Act, 1993 and the said order of attachment is void.
(iii) On 2nd September, 2002, the bank filed evidence of affidavit and also the original document in offence but the Tribunal fixed up the matter ex parte against the defendant Nos. 2 to 5 and fixed date for filing written statement and objection to the attachment petition by defendant Nos. 1 and 2 on 7th October, 2002.
(iv) On 7th January, 2005, an application praying for time to file written statement by defendant No. 2 i.e. the petitioner No. 2 herein, was dismissed and no further time was allowed to file written statement and the matter had been fixed for filing evidence of affidavit by the defendant Nos. 1 and 2. According to the petitioners, this order is biased and contrary to the principles of natural justice.
(v) On 9th February, 2005, defendants intimated that defendant No. 5 Chaitanya Charan Sahu had died and that the Bank did not take any step for substitution and the case stood abated. The Presiding Officer without any application of mind suo motu heard the Counsel for the Bank and considering the provision under Rule 12(5) of the D.R.T. (Procedure) Rules, 1993, fixed the matter for order on 28th February, 2005.
(vi) On 28th February, 2005, the Presiding Officer intentionally passed an order under Rule 12(5) of the aforesaid rules and directed the defendant No. 1 to pay the admitted amount, but did not consider the defendant's application for abatement due to the death of the said defendant No. 5. The defendant went to the High Court challenging the said order and prayed for time for disposal of the case pending the said writ petition before the Hon'ble Court in Orissa, but the Presiding Officer in violation of principles of natural justice, did not consider the request and passed a biased order for issuance of the certificate in terms of the order dated 28th February, 2005.
(vii) The Presiding Officer of the D.R.T. without considering the abatement intentionally allowed the Bank to take steps in the matter till 6th June, 2005 and on 6th June, 2005, the Presiding Officer without any reason, simply on the request of the applicant Bank allowed time to take steps to implead legal representatives of the deceased defendant No. 5 more than once.
(viii) On 30th November, 2005, the Presiding Officer allowed Miscellaneous Appeal No. 623 of 2005 filed by the Bank for impleading the legal representative of the said deceased-defendant after expiry of about ten months from the date of intimation of the death of defendant No. 5.
(ix) Bank failed to file amended plaint in time and moreover the amendment carried out in the application was not in proper form and without pleading reason for substituting the legal heirs of the deceased defendant No. 5, but the Presiding Officer did not consider this aspect of the matter.
(x) On 9th August, 2006, the Presiding Officer did not allow time to defendant No. 4 to file written statement which was contrary to the principles of natural justice.
(xi) On 17th August, 2006, the defendant No. 4 filed written statement but without any petition. But, the Presiding Officer instead of allowing the defendant No. 4 to file appropriate application for acceptance the written statement for the interest of justice simply disallowed it.
(xii) On 31st August, 2006, the Presiding Officer disallowed the application of the defendants for cross-examination of the Bank witness relying upon a decision in S.O.L. Case No. 161 in Union of India v. Delhi High Court Bar Association.
(xiii) Thus, according to the petitioners, the learned Presiding Officer of the D.R.T. was biased and did not take decision impartially and for the ends of justice and the petitioners had reasonable apprehension that justice will be denied to the petitioners if it is adjudicated by the learned Presiding Officer of the Tribunal Mr. C. Thyagaraja Naidu.
(xiv) Hence, the prayer for transfer of the case to other Tribunal having jurisdiction for proper adjudication of the case to save the petitioners from suffering irreparable loss and injury.
6. But the Bank has the other side of the story to tell and the same may be summed up, as it comes from the submission made on behalf of the Bank.
(i) The defendants did not enter appearance in spite of notice and knowledge of the proceedings ex parte ad interim order was passed considering the prima facie case and urgency of the matter.
(ii) The defendants had chosen to enter appearance as and when they liked.
(iii) The defendants sought repeated adjournments and the same was duly granted to them by the learned Tribunal on several occasions.
(iv) Time was sought for by the respondent-Bank to implead the legal representative of defendant No. 5 Chaitanya Charan Sahu since the names and addresses of the daughter of the deceased were not known to the Bank.
(v) Despite service of summons chose never to enter appearance in pending proceedings. The matter was made ex parte against the defendant No. 4 in the year 2000. After a lapse of three and half years, the defendant No. 4 chose to seek time to file written statement which was rightly rejected by the Tribunal.
(vi) The Presiding Officer, D.R.T., was justified in denying defendants an opportunity of cross-examination on the point of power of attorney. Defendant No. 2 had categorically admitted in the written statement filed by him for the execution, the power of attorney to enable the respondent-Bank to recover and realize the amount due to the petitioner Nos. 1 and 2 for satisfaction of dues in the over draft application.
(vii) According to the Bank, principles of natural justice and fair play was duly extended to the petitioners but the petitioners themselves did not avail of the opportunities granted to them. The claim of the respondent-Bank involves public money and after crossing several hurdles, the respondent-Bank has now reached a stage to obtain the final order on the said application. The petitioners are bent upon delaying the matter intentionally and to make the claim of the Bank infructuous.
(viii) The petitioners have hopelessly failed to make any ground of bias or denial of natural justice. Rather, the petitioners are themselves guilty of undue laches and had attempted to cover up the said laches by filing this petition on false grounds and the petition and the supplementary affidavit should be dismissed in limine with exemplary costs.
7. I have had a close look at the petition, the supplementary affidavit, the opposition, other materials on record including all the orders, such as orders dated 7th January, 2005, 9th February, 2005, 5th May, 2005, 6th June, 2005, 21st June, 2005, 21st July, 2005, 31st August, 2006,16th October, 2006, 31st October, 2006 etc., passed by the Presiding Officer of the D.R.T., Cuttack, Mr. T. Naidu, which have been pointed out to show the alleged 'bias' and denial of natural justice to the petitioner. I have also duly considered the submissions made on behalf of the learned Advocates for both sides.
8. I must make it very clear at the outset that to impute bias upon a Judge in the process of judicial decision making is a very serious matter and must be dealt with considerable care and circumspection.
9. This is a transfer application, plain and simple, on a direct allegation of "bias against the learned Presiding Officer of the D.R.T.". We should be mindful of the fact that the bias complained of is allegedly embedded in certain judicial orders passed by the Tribunal. We might as well strongly take note that transfer cannot be ordered upon fancied notions of a litigant alleging bias on the part of the Judge for the simple reason that it casts an aspersion indirectly on the integrity or competence of a Judge from whom the transfer is sought. On the part of the petitioners alleging bias, there must be a genuine search for justice, and that is a justice that has been patently and deliberately denied.
10. Truly speaking, bias is a matter of the mind or the mindset. It must be indicative of a mind pre-conceived and pre-determined. To impute bias upon a Judge, it must be positively shown that he must have some personal, pre-conceived notion to lean in favour of one party alone and deliberately depriving other party of justice.
11. Taking up the question of bias of a Judge, the Supreme Court has thus observed in State of West Bengal v. Shibnanda Pathak II (1998) 105 (SC) : AIR 1998 SC 2058 : (1998) 5 SCC 573: Bias may be defined as a pre-conceived opinion or pre-disposition or predetermination to decide a case or an issue in a particular manner so much so that disposition does not leave the mind which sways judgments and renders the Judge unable to exercise impartially in a particular case. But, there is a distinction between pre-judging the facts specifically relating to a party, as against pre-conception or pre-disposition about general questions of law, policy or discretion. Though in the former case the Judge should disqualify himself, whereas in the latter case he may not be.
12. The petitioners seem to have questioned the legality of 'abatement', due substitution of the legal heirs of defendant No. 5, technicalities of amendment, denial of natural justice etc. in process of the proceedings before the D.R.T. as allegedly reflected in the orders passed by the Presiding Officer of the D.R.T. in question. But, to my mind, those cannot be a subject-matter of judicial decision in a transfer application before this Tribunal. The point is, whether the orders referred to reflect any "bias" on the part of the Judge in the manner they are disposed of and whether there are positive, strong reasons to believe that the Judge, for that matter, the Presiding Officer of the Tribunal, was motivated by a biased set of mind, by partially, unconsciously making those orders against the petitioners in particular to their detriment. I certainly do not think so, having closely examined the petition, the opposition and each and every order of the Presiding Office complained against which are annexed to the petition. I might point out that an order or judgment may be illegal or arbitrary, it may be good, bad or indifferent but that does not necessarily mean that it is tainted with bias. Similarly, a Judge may be quite rigid or tough in his judicial decision-making, in the manner of applying his judicial discretion only to secure the ends of justice and to thwart the attempt of the other side to delay the proceedings such as, deliberate non-appearance, seeking unnecessary adjournment and so on. And when rejection normally follows or the decision goes against the party, to impute 'bias' against the Judge is wholly unwarranted and in no way justified. The appellants have relied upon decision in Ratanlal v. Suresh Kumar AIR 1987 M.P. 178, to say that transfer can only be ordered when the party has reasonable apprehension that justice will be denied. But the said decision says as well that the mere fact that the party has suspicion in this regard would not constitute a valid ground for transfer, that a judicial order (just as here in our case) passed by a Judge cannot legitimately be made the foundation for a transfer application.
13. Having minutely looked into the orders in question passed by the Presiding Officer, D.R.T., Cuttack, and having duly considered all aspects of the matter with regard to the transfer application as stated above, I am of the opinion that they are all judicial orders and do not suffer from any "bias" on the part of the Presiding Officer as alleged by the petitioners. There is no room for any "reasonable apprehension" for the petitioners that justice would be denied. The grounds of transfer are bereft of merits.
Let a copy of this order be sent to the learned Tribunal at once for expeditious disposal of the case.
Urgent xerox of this order may be made available to the Advocates for the parties.