Decided on July 30,2007



R.S.Tripathi, - (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. 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.
(3.) 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.;

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