Decided on January 23,2007



S.S.Parkar, - (1.) THIS appeal has been filed against the order dated 25th October, 2004 passed by the Residing Officer, D.R.T.-II, Mumbai allowing Original Application of the respondent Bank to hold the appellant/ defendant No. 4 liable jointly and severally with defendant Nos. 1 to 3 for the debts of the borrower company. The appeal arises in the following circumstances.
(2.) The respondent Bank had filed the Original Application against four defendants. Defendant No. 1 was borrower company and defendant Nos. 2 to 4 were directors and guarantors. A loan was sanctioned to the defendant No. 1 company by the respondent Bank. After considering the evidence, the Presiding Officer in para No. 4 of the judgment dated 4th February, 2003 has observed that the defendant Nos. 2 to 4 had executed guarantees in 1996 onwards. In para 11 of the judgment it is also observed that the defendant Nos. 2 to 4 admitted to have signed the guarantee agreement However, in the operative portion of the order only defendant Nos. 1 to 3 were ordered to pay jointly and severally to the respondent Bank a sum of Rs. 54,48,750/-. After realizing that the decree was wrongly omitted to be passed against the defendant No. 4 the respondent-Bank filed appeal in this Tribunal in the month of April, 2004. Thereafter, the respondent-Bank also filed review application on 13th July, 2004 because there was an error apparent on the face of the record and since there was delay in filing the review application, an application was filed for condonation of delay. The application was contested by the appellant by filing reply to the review application. The said application for review was, however, treated by the Presiding Officer as miscellaneous application and it was allowed by the impugned order on the ground that there was typographical error which could be corrected even suo motu which is challenged in this appeal filed by the appellant.
(3.) ON behalf of the appellant it is argued that the said mistake could not be corrected in the miscellaneous application. Secondly, it is argued that the Presiding Officer should not have treated the review application as miscellaneous application ignoring the delay in filing the review application which according to the appellant was not explained. In support of this contention the learned Advocate for the appellant relied on the judgment of the Apex Court in the case of State of Punjab v. Darshan Singh 2004(2) Mh.L.J. 565. In that case the Supreme Court has held that under Section 152 of the CPC arithmetical mistakes in judgments, decree orders arising therein from any accidental slip or omission can be corrected. It is, therefore, argued that the omission of defendant No. 4 in the operative portion of the order cannot be said to be a clerical or an arithmetical mistake.;

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