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Shrimal Plantation and ors. Vs. State Bank of India - Court Judgment

LegalCrystal Citation
CourtDRAT Allahabad
Decided On
Judge
Reported inI(2008)BC155
AppellantShrimal Plantation and ors.
RespondentState Bank of India
Excerpt:
.....this appeal.2. briefly stated the history giving rise to these two appeals is that the respondent bank filed original application no. 188/2000 for recovery of rs. 82,92,899.23 against the appellants, who included borrower firm and its directors and guarantors. when the proceedings were going on before the tribunal, the appellants put in their appearances and filed their replies, evidence in the form of affidavits challenging the documents and evidence filed on behalf of the bank for the term loan of rs. 50 lacs sanctioned to them. learned tribunal considered the materials before it drawing the conclusion that one shri shailendra golchha had filed an affidavit stating himself to be the constituted attorney of shri shrimal plantation, but he had not filed any copy of any such power of.....
Judgment:
1. R-615/2005 is an appeal filed by Shri Shrimal Plantation praying for setting aside an order dated 13th October, 2005 passed by the D.R.T., Jabalpur in review application No. 2/2002, wherein prayer was for setting aside the judgment dated 8th March, 2002 passed in Original Application No. 188/2000. The other Appeal No. R-616/2005 has been filed by the same appellant challenging the judgment dated 8th March, 2002 passed by the D.R.T., Jabalpur in Original Application No.188/2000. In Appeal No. R-616/2005 there is an application under Section 5 of the Limitation Act also requesting to condone the delay of 1290 days in filing this appeal on the ground that review application was filed before the Tribunal, but the same was dismissed on 13th October, 2005, against which order another appeal has been preferred apart from this appeal.

2. Briefly stated the history giving rise to these two appeals is that the respondent Bank filed Original Application No. 188/2000 for recovery of Rs. 82,92,899.23 against the appellants, who included borrower firm and its Directors and guarantors. When the proceedings were going on before the Tribunal, the appellants put in their appearances and filed their replies, evidence in the form of affidavits challenging the documents and evidence filed on behalf of the Bank for the term loan of Rs. 50 lacs sanctioned to them. Learned Tribunal considered the materials before it drawing the conclusion that one Shri Shailendra Golchha had filed an affidavit stating himself to be the constituted attorney of Shri shrimal Plantation, but he had not filed any copy of any such power of attorney. Consequently, the learned D.R.T. on account of non-filing of the power of attorney did not consider the affidavit of above Shailendra Golchha. Similarly, the other person Kamal Chand Jain, who was defendant No. 3/10, had filed affidavit in support of reply of defendant Nos. 2/9, 3/10 and 4/11, but he too failed to file any power of attorney, which was the basis for his filing affidavit on their behalf. Therefore, the Tribunal took the view that the affidavit of defendant No. 3/10 Kamal Chand Jain can be taken to be his own affidavit and not for other defendants, likewise for defendant Nos. 5 to 8. The defendant No. 7 Dheeraj Kumar had filed his own affidavit on the basis of so called power of attorney, but there was no such document filed by him, therefore, his affidavit was taken for him only and not for other defendants. On the other hand, the Bank had brought on record the affidavit as well as documents for the advancement of loan and for the proof of advancement of such loan to the defendants, therefore, observing that there was averment from the side of the defendants in their replies and affidavits which were on the record denying the liability for the amount in question and that the documents of loan were never executed by them, rather the defendants had contended that they had signed blank forms for loan. In view of above, the Tribunal took the view that the defendants had failed to discharge their burden to prove for signing blank papers and failed to controvert the evidence of the Bank for the advancement of loan. On the basis of above reasonings, the suit was decreed for the recovery of Rs. 82,92,899.23 against the defendant Nos. 1 to 11 with interest and against this judgment the appellant/ applicants filed one review application on the ground that the judgment passed by the Tribunal was not at all in accordance with law, therefore, it should be reviewed, whereas the Bank challenged the application for review on various grounds including the delaying tactics adopted by the appellants/applicants in getting the matter finalized. Appeal No.R-616/2005 is against the judgment passed in Original Application and Appeal No. R-615/2005 has been filed against order rejecting review application.

3. Learned Tribunal rejected the application for review also and feeling aggrieved against this judgment passed on the Original Application as well as on application for review, the present two appeals have been preferred alongwith an application for condonation of delay.

4. I have heard the Counsel for both the parties at length and have also gone through the material available on the record. Learned Counsel for the parties has argued that the replies of defendants were not considered for want of power of attorney. Review application moved was also dismissed and after the dismissal of review application, the appeal has been preferred within the stipulated period of limitation from the dale of order of review application. He has also submitted that considering the provisions of Section 5 and Section 14 of the Limitation Act, the delay should be condoned and since the judgment of the learned Tribunal is in the violation of principle of natural justice and the appellants were trying hard to settle the dispute with the Bank, hence at least proper opportunity should be given to the appellants to get the matter finalized. He has also argued that the Bank respondent had also filed reply and affidavit without filing any power of attorney in favour of the officer, who signed and verified the plaint, but it was considered by the Tribunal in favour of the Bank applying two different yardsticks for both the parties. Therefore, his submission is that after condonation of delay, the appeal should be allowed to afford opportunity to the appellants to settle the dispute with the Bank in a justified manner or on merits. Against this, the submission from the side of the Bank is that there is delay of about 1290 days in filing the appeal against the original judgment dated 8th March, 2002. His submission is that the review was filed on 1 st May, 2002, which was dismissed on 13th October, 2005.

5. The appellants themselves 5 did not choose to file any appeal against the final judgment of the Tribunal preferring to file only review application, which they knew that it had limited scope and was devoid of any force. His further submission is that the drafting of the review application shows that all the grounds available for the appeal were taken in the review application. He has further pointed out that considering the provisions of Order 47 of the CPC, the present appeal against the final judgment is not maintainable particularly when deliberately review application was filed knowing fully well that the review on the grounds taken in it was not maintainable. His further submission is that under Order 29 Rule 1 of the CPC principal officer of the Bank has authority to sign the plaint and the provisions of S.B.I. Act (Act Nos. 76 to 78 Sections) authorize the principal officer to do the needful. He challenges the argument for any effort on part of the appellant to settle the dispute with the Bank. Reliance has been placed on the ruling Noor Beg v. Ch. Abdul Rahman A.I.R. 1944 Oudh.

193, wherein it has been observed that the time taken by a review application may be excluded unless the application has not been made in good faith. His submission is that in the above ruling, there is reference of case, the observations of the Hon'ble Calcutta High Court reported as Sudhakar Raut v. Sadashiv Jhatap Singh A.I.R. 1916 Cal.

670, observing that where an appeal is filed after an application for review has failed, and where the grounds for review are the grounds of appeal only, the time taken for prosecuting the application for review will not be excluded for making an appeal within time on the ground of bona fide prosecution of civil proceeding. In this ruling there is a reference of other cases also i.e. rulings, Mahmood Ali Khan v. Wazid Ali Khan A.I.R. 1940 Oudh. 310, wherein it has been observed that whether the grounds of review arc mainly grounds of appeal, there was no sufficient cause for condoning the delay. In the instant case when we consider the grounds of review available on the record we find that the grounds for review taken from the side of the present appellant do not fall within the limited scope of review provided under Order 47 Rule 1 of the CPC. These grounds arc similar to the grounds of appeal filed in the instant case Considering all these facts and above rulings when there are mala fides on part of the appellants purposely for gaining time to avoid the payment of Bank's heavy amount the question of condoning the delay to the extent of long period of 1290 days cannot be considered. It is also surprising that when application for review was filed even at that stage, no effort was made by appellant to bring any power of attorney, if at all the same was in existence. So far as the right of officer of the Bank to verify plaint Bank officer being the principal officer and his incompetency to sigh the plaint was never raised before D.R.T. in the reply which was filed on behalf of even those defendants, whose affidavits were taken to be admissible or by any other defendant to enable the Tribunal (D.R.T.) to decide that question at that stage. Under these circumstances, all the arguments advanced from the side of the appellants are without any force and the Appeal Nos. R-615/2005 and R-616/2005 are dismissed along with application for condonation of delay for filing the appeal against the original judgment. Let a copy of this judgment be placed on the file of other appeal and the same be sent to the parties as well as to the D.R.T. concerned for necessary action.


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