Decided on August 23,2004



D.C.Thakur, - (1.) THE six defendants have never been found in controverting or disputing the claim amount of the applicant Bank which has been for an amount of Rs. 19,83,643/- to be split up into Rs. 1,94,216.00 as the Bank guarantee and the balance amount. From the record maintained in the present case, it has been further found out that those defendants have eagerly been interested in paying back the applicant Bank the sum which is apparently lesser than the sum as above. For the purpose of paying back the legitimate claim of the applicant Bank, the defendants have left no stone unturned. For example, the defendants appeared before the Hon'ble High Court at Cuttack which constituted, as the Court of record and for justice, the Lok Adalat. THE defendants were also agreeable for implementing into reality a consent decree of Rs. 25 lakh reached before the said alternative judicial forum; but that proposed consent decree has been strongly alleged to be abstained by the applicant Bank from being implemented.
(2.) When and whence the claim case instituted by the Bank against the above defendants has appeared before the Bench, this Tribunal has directly gathered the experience, stated below : The learned Advocate appearing for the defendant has shown on occasions the nice attitude for a direction to be specifically issued upon the defendants to enter into compromise with the applicant Bank which has been strongly resisted by the learned Advocate appearing for the said applicant Bank. The proposal for "compromise" is actually a matter of within; particularly, it is absolutely a matter of personal affair of a person seriously interested in compromise and with the honest equitable approach. Such persons speaking for the compromise are in the real mood of discharging the debt liability which has not been made possible owing to the non-cooperation markedly from the applicant Bank, though not a large scale Bank; and instead, a localised Bank. The above compromising attitude of the above person has no doubt an inalienable, irreplaceable relation with the true admission of such persons of the debt liability. While praying for a direction to be issued upon themselves to enter into compromise on January 19, 2004, the above defendants actually made an admission before this judicial body; by making such judicial admission, the defendants actually narrowed down the scope of any contention in OA/271 of 2001; such admission has nevertheless closed the door of all issues to be framed first, then decided and lastly, for setting at rest the controversy between the contesting parties. The same has been more or less laid down in Sub-rule (1) of Rule VI of Order XII of the First Schedule to the Code of Civil Procedure, 1908 (Act No. V of 1908). That day this Tribunal has framed inter alia, the necessary, deterministic view that by such utterance of compromise, the right and interest ('Jus') of the applicant Bank have been undoubtedly placed in a water tight protective system.
(3.) THE defendants have not only exhibited their mere compromising attitude; but the defendants have also rushed to this Tribunal when their proposal has been actually turned down by the applicant Bank. THE same fact may be described in the following manner : with a view to implementing the compromise in real sense, the defendants proposed to pay the applicant Bank a sum of Rs. 4 lakhs by way of one demand draft which was strongly refused to be accepted by the Branch Manager of the said Bank. It is known to all a demand draft is that type of specific instrument which has no bare chance of being dishonored, after its presentation for encashment. THE applicant Bank has also failed to understand and realise the real effect of such payment which shall tantamount to an admission made though outside this judicial body but shall be covered necessarily by Section 17 read along with Section 21 of the Indian Evidence Act, 1872 (Act No. 1 of 1872). Besides having the close connection with the recovery aspect, such proven refusal by the said Bank has failed to hold legally bound the defendants by the above payment intended to be made by themselves. Any payment, whether it is negligible or substantial, shall be a payment as well as the hallmark of the acceptance, clear-cut of the debt liability of any borrowing person to his creditor. In the event of acceptance of that demand draft for a sum of Rs. 4 lakhs, the admission by the defendants of the debt liability for the aforementioned amount would have been legally or judicially recognised and would certainly have every possibility of preventing the ongoing proceeding from being a prolonged one. THE same state of affairs has not fortunately taken place in another matter in OA/273 of 2001; in connection with which the same defendants have also shown the similar kind of attitude by way of depositing another amount of Rs. 2,75,000/- as well as in the said manner. It may be noted that such payments have been tended to be made by the defendants for the reason of causing the strict compliance with the order passed by this Tribunal on an earlier occasion. THE above has also been recorded by this Tribunal in its order made specifically on May 5, 2004 and subsequently made on May 24, 2004.;

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