D.C.Thakur, Presiding Officer -
(1.) THE utilitarian justification of a person to be examined by a judicial authority has been time and again emphasised by the celebrated authorities. The above examination of the person or persons which is distinct and separate from the examination -in -chief and the cross -examination of themselves has been found, since the time immemorial, in serving justice to the great extent. The personal examination of the person or persons has also been responsible for closing the door for delaying justice. The personal examination of the person or persons irrespective of their character has been defended, supported as the protective or the safeguard to the wastage of time. The utility of such personal examination has been emphasised by the law -makers with the intent of preventing the wastage of time from taking place. In addition to the above, the personal examination has always enabled the judicial authority to arrive at an agreed material finding against any person or in favour of any person suing another one. The utilitarian justification behind the personal examination can also be described precisely in the words it helps much the judicial authority to arrive at a conclusive finding on whether a person initiating the action against another one is really entitled to any legal remedy or relief in connection thereto.
(2.) MORE recently, Justice Malimath has, in his recommendatory report, emphasised the adoption of the personal examination. Justice Malimath has, in his report, emphatically championised the personal examination of any person sued or suitor. In the words of Justice Malimath, the personal examination is one of the scientific tools for an intelligent judicial officer. The above material suggestion has also been incorporated in his report for the cherished purpose of incorporating the necessary amendments in the body of the Code of Civil Procedure, 1908 (Act No. V of 1908) in the form of the Code of Civil Procedure (Amendment) Act, 1999 (Act No. XLVI of 1999). The above personal examination has, moreover, related itself to measuring:
whether the defendant has denied or resisted the liability or has accepted the same?
The above personal examination may be utilised as a means of recording the admission or refusal or resistance. As far as an admission before a judicial body is concerned, such personal examination has been of the grave significance. The above personal examination has been, from point of time, conducted of Shri Ravi Agarwal, the defendant No. 3 in connection with the present case on Tuesday, February 8, 2005.
Before reproducing the text of the above examination, it has been felt pertinent to highlight the characteristic features tended to be attributed to the said defendant. The above characteristic features of the said defendant may be gathered of through the different materials on record which do form the part of the record maintained in connection with OA/49/2004 instituted and filed on Friday, October 1,2004 against the four defendants for the due recovery of a sum of Rs. 3,32,49,979.34. Besides being the authorised signatory of M/s. Kunjilal Hariram, a proprietorship firm (which is incidentally accepted by the said defendant on Tuesday, February 8, 2005 as the proprietorship firm of the defendant No. 2 who is none but Smt. Keshardevi Agarwal, the mother of the said defendant), the said defendant has, in unequivocal words and beyond any ambiguity, declared himself during the above examination as a guarantor in respect of the different credit facilities sanctioned by the Bank through its letter IEP.ADV. 1345.98 dated January, 21, 1999. In addition to the above liability, the said defendant has also accepted the mortgagor's liability upon himself on that day by way of giving the affirmative reply to the specific question like -
Q. Have you also created any mortgage in favour of the Bank?
The guarantor's liability is, it is known to all, co -extensive with that of the borrower's liability. The said defendant has not, in either of the forms, resisted the Bank's claim case that -
(a) it has not been maintainable only against himself as the guarantor and it has been liable to be rejected for the misjoinder of himself;
(b) the said defendant has also not resisted the Bank's claim case by way of uttering that the Bank cannot proceed against himself without first exhausting all remedies available against the principal debtor which is nothing but the defendant No. 1, that is, M/s. Kunjilal Hariram; nor
(c) the said defendant has not whispered about the Bank's claim case being excessively time -barred and the Bank's claim case has been hit much by Articles 113, 114, Articles 19 and 21 of the First Schedule to the Limitation Act, 1963 (Act No. 36 of 1963).
(3.) AS the above claim case has been in full dictated by the whole -hearted judicial admission, as the claim case of the Bank has not been subordinated to the finding on: whether the above sanctioned facility has been a dormant one or is a living, regular account. The adjudication, the determination of the Bank's entitlement to the above claim has been eased that day by the defendant himself. For the above purpose, it has been thought pragmatic by the celebrated jurists that Rule 2 of Order 10 ought to be read and applied also for the purpose of Rule 6 of Order 12 to the Code of Civil Procedure, 1908 (Act No. 5 of 1908); to be more specific, the examination of any person under the aforementioned legal provision may be one of the easy devices to arrive at -
Has the defendant admitted the liability in clear, unequivocal words and beyond the realm of any ambiguity?
It would not be an exaggeration if it is held that the inter -relationship between Rule 6 of Order 12 of the First Schedule to the Code of Civil Procedure, 1908 (Act No. 5 of 1908) and Rule 2 of Order 10 of the said Code is irreplaceable, inseparable and above all organismic; and both the legal provisions have been inextricably related to a system aimed at doing substantially justice without any delay.;