- (1.) THE instant revisional application under Article 227 of the Constitution of India is directed against Order No. 17 dated 29. 5. 97 passed in MA/49/97 arising out of CA/130/96 passed by the presiding Officer, Debt Recovery Tribunal, Calcutta. The connected petition on which the impugned order is passed is annexed to the petition (vide annexure 'c' appended therein ). From the preface of the cause title of the petition it appears that the same purports to be an application under section 22 (2) (h) of the said Act read with Rule 18 of the Debt Recovery tribunal Procedure Rules, 1993. The connected petition on the basis of which the impugned order is passed contains a prayer for recalling of order No. 11, dated 27. 8. 97 so that O. A. No. 130 of 1996 be restored to its position prior to the order of dismissal. By the aforesaid Order no. 11, dated 27. 8. 97 a judgement was passed by the Debt Recovery tribunal and the entire parent application under Section 19 of the recovery of Debts Due to Banks and Financial Institutions Act, 1993 stood dismissed leading to the termination of the pendency of the proceeding and/or lis. At the very outset, this court is confronted with the problem as to how the connected petition (vide Annexure C) is to be treated namely, as to whether in terms of the letter and the caption contained in the petition or it is required to be read in terms of its substance. It is well-known proposition in the legal domain that nomenclature given in the cause title of the petition will neither govern nor guide the nature and character of the petition but it shall have to be deciphered in terms of the substance contained in the petition. This Court is not oblivious of a germane prayer though cryptically referred to in the prayer portion, namely, of the recalling of an order dated 27. 8. 97 leading to final determination of the Us and what should be the nature and character attributed to the said petition. Before arriving at an inference about the nature and character of the said petition it is proper to go through the relevant averment contained in the said petition. It appears from the resume of the facts narrated in the said petition that on 22. 8. 97 the advocate of the applicant Bank was served with a copy of the petition on behalf of respondent No. 1 praying for an adjournment for peremptory hearing which was then fixed for hearing on 27. 8. 97 on the ground of illness of the said respondent. The then concerned officer of the connected branch of the Bank at the relevant point of time was transferred and posted as Branch Manager of Joyrampore Branch of State Bank of India, district Hooghly who was conversant with the facts and circumstances of this case and he was due to tender his evidence. In view of the service and receipt of a petition for adjournment on behalf of the said respondent no. 1 the applicant Bank developed reasonable belief that adjournment will be allowed. At the same time coinciding with the date there was a corresponding strike on all India basis of State Bank of India and in anticipation of the fact adjournment would be granted which would not be opposed on behalf of Bank, the Bank employees did not turn up. However, the petition for adjournment on behalf of respondent No. 1 inspite of consent given by the applicant Bank was rejected. Thereafter on behalf of applicant Bank a petition was filed for adjournment. The said petition filed in course of the same day on behalf of the Bank for adjournment stood rejected and applicant Bank was asked to adduce evidence when the connected case was called for peremptory hearing. The applicant Bank was represented by its lawyer as the concerned deponent on behalf of bank did not turn up because of the reasons as mentioned in the adjournment petition and the Bank could not lead any evidence in the case. As a result of that by Order No. 11, dated 27. 8. 97 the original application No. 130 of 1996 which has character of the parent application under Section 19 of the Act stood dismissed resulting in termination of the proceeding. In the wake of the background of the above-noted facts the connected petition was filed with the above-noted caption under provisions of Section 22 (2) (2) of the Act read with Rule 18 of the Debts recovery Tribunal (Procedure) Rules, 1993 with a prayer for recalling and/or setting aside the aforesaid order.
(2.) NOW the debate is centered round initially as to the nature of the application which has been disposed of by the impugned order. This court had occasion to go through the connected petition on the basis of which the impugned order was passed and after taking into account of the provisions included under Section 22 (2) of the Recovery of Debts due to banks and Financial Institutions Act, 1993 it comes across different catalogues of clauses covered by Clauses (a) to (b) contained in Section 22 (2) itself which inter alia amongst others contains provision for reviewing its decision and also for setting aside any order of dismissal of any application for default or any order passed by it exparte. The impugned order is not passed exparte and as such this order is not passed exparte and as such this order does not come within the preview of either of the clauses namely of clauses (f) and (g) covered by Section 22 (2) of the act. There is another salient provision included in Section 22 (2) (e), namely of reviewing its decision. The question is that the sum and substance of the content and the prayer of the impugned order is for recalling of order No. 11, dated 27. 8. 97. Now, main lis resulting in dismissal of the application under Section 19 of the Act it has been pointed out by mr. Bose, learned Advocate appearing on behalf of revisionist petitioner that the filing of the aforesaid petition is preceded with by filing another petition for adducing evidence on behalf of the applicant Bank which stood dismissed in the wake of the same the question arises as to whether a party litigant is entitled to have an earlier order reviewed even after passing of the final order. The review which has been used as a nomenclature within the preview of the provision of Section 114 read with order 47 Rule 1 of the Code of Civil Procedure. Section 114 of the Code of Civil Procedure contemplates that review is permissible by a party litigant feeling aggrieved by a decree from which there is provision for appeal but no appeal is either preferred or allowed on the analogy of the same reasoning it appears that when the Legislature has used the jural expression of review it tends to mean review of a final decision resulting in termination of the proceeding in either way and any person aggrieved by the same can maintain a petition for review. Therefore, viewed from the said perspective it appears that Section 22 (2) (e) of the Act contemplates reviewing its decision where Legislature in its wisdom has used the plural number making no room for distinction between the decision irrespective of nature where the same finally adjudicates or temporarily passes an order the same is open to review. Mr. Bose, learned advocate for the contesting respondent has also contended that Civil procedure Code will apply with regard to the clauses as enumerated covering in clauses (a) to (h) and therefore clause (e) obviously means and includes power of review.
(3.) THEREFORE, this court will not lean in favour of treating the application on the face value in terms of his letter but in terms of the spirit and the extent of prayer contained therein. It appears that the connected petition should be designated as a petition having the character of review. In the ultimate portion of the impugned order by way of conclusion the presiding Officer has held that the said officer has no jurisdiction to set aside the judgment passed on 27. 8. 97 in view of an exparte termination of the pending Us even if lis stands terminated the recourse of review is available to the party. Therefore, this court holds that the nature of the connected petition on which the impugned order is passed has the character of a petition under Section 22 (2) (e) of the Act and as such the presiding Officer can exercise his jurisdiction either way in considering the application for review. He cannot be permitted to proceed on the basis of a premise that final curtain is dropped down on the scenario of litigation as soon as final order resulting in termination of lis is passed. Therefore, the question which has been canvassed, namely whether Article 227 of the Constitution is capable of being invoked when alternative remedy of appeal is there by way of misplaced significance and that is not all germane for consideration in the facts and circumstances of the present case in the background of the legal postulate as indicated under the provision of Recovery of Debts Due to Banks and Financial Institutions Act 1993. Therefore, this court will not consider this scrutiny of citation of several decisions cited by the respective parties but according to this Court both parties have failed to appreciate the nature of the present controversy. This court accordingly has not gone to indulge in exercise of futility or by way of academic exercise unless it has germane implication on the controversy.;