TaxTMI 
TaxTMI 
2021 (3) TMI 79
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..... 4. Before adverting to the submissions advanced by the parties, it will be apposite to consider the relevant facts briefly : (i) The petitioner is an asset reconstruction company and acting in its capacity as trustee of the IARCBOB-01/07 Trust. The petitioner is an assignee of Bank of Baroda who has assigned the debt due to it from respondent No. 2 in favour of the petitioner under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("SARFAESI Act" for short). (ii) Respondent No. 1 is a guarantor in respect of the amount due and payable by respondent No. 2. Respondent No. 2 was earlier a division of respondent No. 1 before it was demerged into a separate entity. (iii) Originally Central Bank of India and Bank of Baroda filed a joint suit in this court being Suit No. 2520 of 1989 for recovery of an amount of Rs. 7,90,02,617.69 due and payable to Bank of Baroda and Rs. 3,25,85,341.28 due and payable to Central Bank of India together with interest thereon at the contractual rate till payment and/or realization. The aforesaid suit was transferred to DRT and renumbered as Transfer Orig....
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....OD. Time is refused and right of defendant No. 1 to file CAOD stands forfeited. The matter is posted to April 12, 2018 for arguments." (xii) The petitioner filed Writ Petition No. 386 of 2020 in this court seeking expeditious disposal of the original application pending before the DRT. By order dated February 11, 2020 this court directed the DRT to expedite the hearing of pending original application. Accordingly, the petitioner moved the DRT for hearing of the original application. (xiii) On July 31, 2020 respondent No. 1 filed interim application bearing No. 175 of 2020 seeking condonation of delay of 269 days in filing the claim affidavit on the ground that the DRT was not functioning since June, 2018 on account of fire in its premises in Mumbai. (xiv) On August 4, 2020 the DRT rejected the interim application filed by respondent No. 1. (xv) Respondent No. 1 preferred an appeal before the DRAT being Misc. Appeal No. 16 of 2020 impugning the rejection order dated August 4, 2020. (xvi) On September 8, 2020 the DRAT allowed the appeal of respondent No. 1 and passed the following order : "(1) Impugned order dated August 4, 2020 i....
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.... merits and adjudication on any application and/or respondent No. 1's case. Respondent No. 1 had immediately applied for seeking condonation of delay and recall of the order dated January 16, 2018 since DRT-1, Mumbai resumed its normal operation in June, 2020 after the fire incident. The Presiding Officer was appointed on June 17, 2020 in DRT-1, Mumbai. The intention of respondent No. 1 was bonafide in approaching the DRT at the first instance in the peculiar facts and circumstances of the present case. Respondent No. 1 was ready with the claim affidavit and had also filed a further application seeking cross-examination of the petitioner's witness which was pending with the DRT. The respondent submitted that the order dated January 16, 2018 was not an order passed in adjudication on the merits of the controversy between the parties. It was an interlocutory order which did not impinge upon the rights of respondent No. 1 to seek recall and modification as it did not decide any issue between the parties. 8. In support of the above proposition, reference was made to the judgment of the Supreme Court in the case of Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 our attention ....
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....n one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again ? . . . It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order.' 12. If the correctness of the order of the civil judge in disposing of the application filed by the appellant on May 31, 1958 were questioned in an appeal against the decree in the suit, these principles and the observations would have immediate relevance. But it is not as if the distinction here drawn between the type of interlocutory orders which attain finality and those that do not, is of no materiality in considering whether a particular interlocutory order is of a kind which would preclude the agitation of the same question before the same court in further stages of the same proceeding. Dealing with the decisions of the Privy Council in Ramkirpal Shukul v. Mst. Rup Kuari [1883] LR 11 IA 37 (PC), Bani Ram v. Nanhu Mal [1884] LR 11 IA 181 (PC) and Hook v. Administrator Gener....
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....tigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process of court. There are other orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they are not directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under Order 9, rule 7 would be an illustration of this type. If an application made under the pro visions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier s....
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.... quote the material part : 'Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing then- (a) if it is proved that the summons was duly served, the court may proceed exparte ; . . .' This is the provision under which the civil judge purported to act on the 29th of May. And then comes Order 9, rule 7 which reads : 'Where the court has adjourned the hearing of the suit exparte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.' On that very date the court took evidence of the plaintiff and reserved judgment. In other words, the hearing had been completed and the only part of the case that remained thereafter was the pronouncing of the judgment. Order 20, rule 1 provides for this contingency and it reads : 'The court, after the case has been heard, shall pronounce judgment in open court, either at once or, as soon thereafter as may be practicable, on s....