V GOPAL KINI Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) FINAL Order was passed by the PO, DRT, Ernakulam, in TA-1169/97 on 1.12.2000. While passing final Order the PO, DRT has observed in Clause (c) of the Decree/Order that "As the Counsel for D4 reports that D4 is only a guarantor and that only in case the sale proceeds of A and B scheduled properties is inadequate to satisfy the debt above, C and D scheduled properties may be proceeded against, as far as possible sale of C and D scheduled properties is ordered to be invoked only after proceeding against the A and B scheduled properties. The sale of the properties he held with all possible speed." Subsequently, the Bank filed IA-734/2001 to correct the Order in TA-1169/97 granting a Certificate for realisation of the amounts from the A to D scheduled properties of the defendants simultaneously. In the IA, the hank has stated that since the liability of the principal debtor and guarantor is coextensive, the decree holder is entitled to proceed against the principal debtor and the guarantor simultaneously and the Tribunal did not appreciate that point and passed Order to proceed against the property of the principal debtor first and then against the guarantor and it is an error apparent on the face or the record. It is further stated in the petition that the decree holder is entitled to realize the amount from all the properties of the parties simultaneously. On the petition filed by the Bank and after receiving the counter filed by D-4, the Tribunal passed Order in the IA slating that the Order has been treated as an Order suo motu made, though in furtherance of this IA since the mistake in Clause (e) of the Order came to notice only now and the PO, DRT, is inclined to correct the mistake in the decree/Order passed on 1.12.2000 and Clause (e) is treated as deleted forthwith. Aggrieved against that Order the 4th defendant appellant has come forward with this appeal (MA 103/2002).

(2.) Counsel for the appellant submitted that the original order was passed on 1.12.2000 and the Bank filed the petition to review that Order, on 22.6.2001 and under the RDDB & FI Act the period allowed for filing review petition is 60 days as per Rule 5A of the Act and as the Review petition was filed after the period of 60 days, the review will not lie and it is barred by limitation and the Order passed by the PO, DRT, is not proper and it is liable to be set aside and if at all the Bank has to seek any remedy it must come only by way of an appeal. Counsel for the appellant submitted that in the Order originally passed, in Clause (e), the PO, DRT has provided for proceeding against the principal debtor's property in the first instance and then to proceed against the guarantor and there is nothing wrong in passing that Order and it does not require any correction.

(3.) THE Supreme Court in the above said decision has held that the decree-holder cannot be forced to first exhaust remedy by way of execution of mortgage decree alone and then to proceed against the guarantor. THE position of law is that the guarantor is jointly and severally liable for the debt along with the principal debtor. THE PO, DRT has observed in her Order in IA that the mistake in the Order being one to be corrected by her and the position of law being that the surety is jointly and severally liable for the debt, among other debtors, the properties offered as security by the guarantor are also liable for the debt and no reservation is called for in respect of the properties owned by the guarantor i.e. the plaint 'C' and 'D' scheduled property and so she is inclined to correct the mistake in the Order passed on 1.12.2000 deleting Clause (c) and treating that Order as an Order suo motu made. Even though the Bank filed the IA for correction of that mistake, the PO, DRT has found that according to the position of law the guarantor is jointly and severally liable for that debt and she is inclined to delete Clause (c) of the decree/order even though there is some delay in filing that IA. She has found it as an error apparent on the face of the record as it is contrary to the settled position of law. She has deemed it fit to correct that Order by deleting Clause (c) and treating it as suo motu Order. Of course, under the Act the review petition has to be filed within 60 days from the date of passing of that Order. Admittedly, this petition was filed beyond the period of 60 days. She has clearly stated in her Order that disregarding the delay in filing the IA, she is inclined to correct the mistake in the Order passed on 1.12.2000 taking into consideration the settled position of law. She has deleted the Clause (c) since it is an error in the Order passed as it is against the settled position of law. As the PO, DRT, mo motu passed that Order by correcting the error in that Order invoking the principles of natural justice, I find that the Order passed by the PO, DRT, is proper. Further, the Bank also filed the IA only for correction of the Order and it is not a review petition for correction of the Order and the application filed by the Bank is also not a review application and it was filed to correct the Order as per the settled position of law. THE PO, DRRT, also suo motu corrected that mistake as per the settled position of law and passed the Order. Hence, I find that the Order passed by the PO, DRT, is proper and does not warrant any interference.