STATE BANK OF INDIA vs SMT KAJOMA DEVI on 31 December 2021

1. 1. **Smt. Kajoma Devi**, W/o Sri Devanand Singh, R/o Village- Jaimra, P.O.- Tilrath, District- Begusarai- 851122

2. 2. **Shri Devenand Singh**, S/o Sri Lakhan Singh, R/o Village- Jaimra, P.O.- Tilrath, District- Begusarai- 851122

...Respondents/borrower

Present:

**For the Applicant-Bank** : Shri S.S. Thakur, Advocate**For the Respondents/Borrower** : None**Dated: 31/12/2021****JUDGMENT**

1. The present Review Application has been filed by the Applicant Bank i.e. State Bank of India against the judgment dated 23.05.2017 passed in OA No. 627 of 2016, filed by the Applicant Bank, wherein and where under the Original Application of the Applicant Bank has been dismissed on the ground of suppression of material facts as to non-disclosure of pending SA No. 156 of 2015 before this Tribunal.

2. After filing of the present Review Application by the Applicant Bank, notices were ordered to be issued to the Respondents vide order dated 01.07.2017. The said notices were sent to the Respondents through Speed post on 05.07.2015 directing the Respondents to appear before this Tribunal on 25.07.2017 but due to non-appearance of the Respondents, this Tribunal vide order dated 24.08.2017 ordered publication of citation in newspaper. The citation was published qua the Respondents in newspaper "Dainik Jagran", (hindi edition) on 07.09.2017.

3. Records shows that the Respondents did not appear despite several adjournments granted upto 08.05.2019 and eventually vide order dated 25.06.2019 right to file reply of the Respondents was closed and they were proceeded exparte. Thereafter the matter was again adjourned due to the Covid-19 pandemic situation on various dates.

4. Record further shows that as per order dated 24.11.2020, Id. Predecessor of this Tribunal had heard the present matter and reserved for order but due to on-going Covid-19 Pandemic situation and restriction on travelling, the judgment/order could not be dictated and again the matter was listed and kept pending.

5. Finally, the ex-parte arguments were heard on behalf of the Applicant Bank and the matter was reserved for order/judgment.

6. Brief facts of the case as narrated in the Review Application are that the Applicant has approached this Tribunal for the first time and filed the present RA on 01.07.2017 against the judgment dated 23.05.2017 issued on 02.06.2017 passed in OA 627 of 2016 and as such the present Review Application has been filed within the prescribed statutory period u/r 5A (2) of the Debts Recovery Tribunal (Procedures) Rules, 1993.

7. It is further stated that the instant Review Application has been filed because this Tribunal has dismissed the OA 627 of 2016 on the basis of suppression of material facts by the Applicant Bank whereas on bare perusal of the Annexure 1 i.e. entire Orders passed in SA 156 of 2015 and Annexure- 2 i.e. entire Orders passed in MA 26 of 2016, it can easily be understood that actually the suppression of facts has been indulged into by the Defendants / borrower and not the Applicant Bank. This is more so because the counsel for the Applicant bank in OA 627 of 2016 and Respondent in SA 156 of 2015 were the different but the Defendants/borrower's counsel in both the cases were same, hence it was well within the knowledge of the Defendant that prior to restoration on 18.08.2016 of SA 156 of 2015, the said SA was non-est in the eye of law hence for the ends of justice the order under review needs to be passed afresh.

8. It is further stated that the order dated 23.05.2017 suffers from inherent error of facts and law of which the Defendants are reaping undue advance and further the said order was passed without appreciating the available record of the MA 26 of 2016 and SA 156 of 2015.

9. It is further stated that so far the oral submission recorded in para 6 of the judgment on behalf of the Applicant's counsel is concerned, the same was advanced under the impression because the Judgment of SA 156 of 2015 was available on record and one cannot expect the Defendant to suppress the fact regarding restoration of said SA on 18.08.2016 and on the same day the matter was decided by the Tribunal but the fact regarding restoration of said SA on 18.08.2016 in MA 26/2016 was intentionally suppressed by the Defendants to snatch favourable order from this Tribunal and the same amounts to suppression of material facts by the Defendants and not the Applicant Bank hence the conclusion drawn in the judgment dated 23.05.2017 is bad in law as well as actual facts pertaining to the matter hence the judgment dated 23.05.2017 needs to be reviewed by restoring OA 627 of 2016 and to pass fresh judgment and certificate.

10. Ex-parte arguments heard and perused the case records.

11. Since, the Respondents were proceeded ex-parte, all contentions raised and documents produced by the Applicant Bank remained unrebuted.

12. After hearing Ld. Counsel and perusal of record this Tribunal is of considered opinion that the factum of submission by the Applicant Bank (Reviewiest herein) during the hearing of the O.A. No. 627 of 2016 that the S.A. No.156 of 2015 was dismissed has been compelled the Ld. Predecessor of this Tribunal to draw the inference that the Applicant indulged into misrepresentation and suppression of factual resultantly dismissed the said O.A.

13. The Ld. Counsel has submitted that the said finding is based upon the part evidence available on record. The position shall be clear on perusal of order dated 18.08.2016 passed in M.A. No. 26 of 2016 whereby the S.A. No. 156 of 2015 was order to be restored.

14. The Ld. Predecessor has in its Judgment dated 23.05.2017 has recorded that the applicant filed the said O.A. No. 627 of 2016 on 12.08.2016, while the S.A. No. 156 of 2015 was pending before this Tribunal and was decided on 18.08.2016 only. It is apparent from the perusal of the order dated 18.08.2016 passed in M.A. No. 26 of 2016 that the said S.A. No. 156 of 2015 was dismissed on 24.02.2016 for default and on the date of filing the O.A. No. 627 of 2016 the said S.A. was non-est and could only be restored on 18.08.2016. It seems that Ld. Predecessor did not take into consideration the said factum while passing the order dated 23.05.2017 in O.A. No. 627 of 2016 while dismissing the same for non-disclosure of material fact and erred therein.

15. Section 22(2)(e) of the RDB Act also provides for scope of Review of its decisions.

The concerned law under CPC, under Order 47, R.1 also provides for scope of Review that ***"1. Application for review of judgment. - (Any person considering himself aggrieved -***

- ***(a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred,***

- ***(b) By a decree or order from which no appeal is allowed, or***

- ***(c) By a decision on a reference from a Court of Small Causes,***

***And who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reasons, desires to obtain a review of the decree passed or order made against him, may***

*Handwritten signature*

*apply for a review of judgment to the Court which passed the decree or made the order.*

**(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review"**

Besides that Rule 5-A of the Debts Recovery Tribunal Procedures (Rules), 1993 also provides for the scope of review- **Rule 5-A. Review.- (1) Any party considering itself aggrieved by an order made by the Tribunal on account of some mistake of error apparent on the face of the record desires to obtain a review of the order made against him, may apply for a review of the order to the Tribunal which had made the order"**

The Hon'ble Patna High Court in its judgment dated 27^th September 2018 in the case of Dilip Kumar Vs The Union of India in LPA No. 1029 of 2018 has held as **"In view of the above and for the reasons, stated above, we are of the opinion that the learned Single Judge has not committed any error in holding that the DRT would have jurisdiction to review its own order passed under the SARFAESI Act, 2002. We are in complete agreement with the view taken by the learned Single Judge, therefore, no interference by this Court is called for in exercise of the intra Court appellate jurisdiction"**

Thus it is apparent from the above, in the event mistake or error on the face of the record, the same can be rectified by way of review. In present matter the incriminating evidence was not taken into consideration which even otherwise was very vital for proper adjudication of the O.A. of the Applicant. Hence the present Review Application is entitled to be entertained.

16. In view of the above discussion the mistake has been apparently done at the face of the record needs to be rectified. Hence, this Review Application No. 08 of 2017 is allowed and consequently the O.A. No. 627 of 2016 is entitled to be restored at its original number. It is ordered accordingly.

No order as to cost. Parties to bear their own costs. File be consigned to the record room.

Copy of Order be sent to the parties through speed post and electronic mode.

Order be uploaded on the Tribunal's website.

Ranchi 31.12.2021

**(Sanjiv Kumar)** **Presiding Officer,** **Ranchi** **Additional Charge, DRT, Patna** **31.12.2021**