S S R Nirman Pvt Ltd And Ors vs STATE BANK OF INDIA on 6 September 2019

1. 1. State Bank of India, a body corporate duly constitute by and under the State Bank of India Act, 1955, carrying on business, inter alia, from its Contai Branch situated at District-Purba Medinipur, West Bengal.

2. 2. The Authorised Officer, State Bank of India, Stressed Asset Management Branch, 11 and 13, Shakespeare Sarani, Kolkata-700071.

- Misc. Applicants

-Versus-

1. 1. M/s. S.S.R. Nirman Private Limited, a Company incorporated under the Companies Act, 1956, having its registered office at Paschim Bhagwanpur, Post Office - Darua, Police Station - Contai, District-Purba Medinipur;

2. 2. Saidul Islam Khan, working for fain at Paschim Bhagwanpur, Post Office-Darua, Police Station- Contai, District- Purba Medinipur;

3. 3. Rasidul Islam Khan, working for fain at Paschim Bhagwanpur, Post Office-Darua, Police Station-Contai, District- Purba Medinipur

- Respondents

**Counsel for parties:**

For the Misc. Applicants : Mr. Anjan Kumar Paul, Counsel For the Ops/Respondents : Mr. Debasish Karmakar, Counsel **FINAL ORDER**(Delivered on 6^th September, 2019)

The present M.A., being M.A. 10 of 2019, has been filed by the Respondent Bank praying for correction and/or rectification of some typographical/clerical errors that have crept in the order dated 26^th February, 2019 disposing of S.A. 310 of 2012.

**2.(A)** It is pointed out that in 2^nd page of the order in sub-para (iii) of para 2 in line 9 it has been written "Respondent Bank further submitted that the mortgage has given written consent to the

Respondent Bank for sale of the property in question." It is stated that the word "mortgage" should be substituted as "mortgagor". Since it is a patent typographical error, it should be corrected. Let the word "mortgage" be read as "mortgagor".

**(B)** Another error that has been pointed out is that in the last page in para 7 last line it has been written as "vide Sale Notice dated 03.11.2019 published on 08.11.2018 to get back their property in question". It is pointed out that the date 03.11.2019 should be 03.11.2018. This is also a typographical error because in the same para, in 3^rd line the date is correctly mentioned as 03.11.2018. Therefore, this date also needs to be corrected. Accordingly, the date "03.11.2019" be read as "03.11.2018".

**3.** The third error pointed out is at para 8. Relevant portion is quoted below :

"(i) The Respondent Bank shall provide an opportunity to the **Applicants** to pay the sale price in view of the sale notice dated 03.11.2018, published on 08.11.2018, to get back their property which was put to sale vide above said sale notice, and shall intimate the sale price within seven days from the date of this order and the **Applicants** shall pay the sale price within fifteen days from the date of receipt of the opportunity from the Respondent Bank."

**4.** Learned Counsel for the Misc. Applicants, i.e. Learned Counsel for Respondent Bank, submits that the word "**Applicants**" in two places occurring in para 8 should be replaced by "mortgagor/auction purchaser". However, in a subsequent S.A. 525 of 2019 filed on 19^th August, 2019 it has been stated that the word "**Applicants**" should be replaced by the word "**guarantors**". To this, Learned Counsel for the opposite party has raised objection. He has contended that this will change the text of the judgment. However, Learned Counsel for Respondent Bank submits that the Applicants included guarantors because Applicants No. 2 and 3 are guarantors/mortgagors in this case. Thus, the word "Applicants" will also include the guarantors and/or mortgagor. Therefore, this will hardly change the text or meaning of the judgment.

I have considered the submissions of both the parties.

5. I find that the S.A. has been filed by M/s. S.S.R. Nirman Private Limited, which is a Company and two others, namely Saidul Islam Khan, Applicant No. 2 and Rasidul Islam Khan, Applicant No. 3. From the notice under Section 13 (2) at Annexure E to the S.A., it is seen that this Saidul Islam Khan and Rasidul Islam Khan, alongwith one Sk. Khaleque Uddin are guarantors. Although Sk. Khaleque Uddin is not an Applicant but other two are and notice was also issued to these persons as guarantor. As per the Annexure to this notice, I find that the property of Sk. Khaleque Uddin has been kept mortgaged with the Bank against the loan sanctioned to the Applicant Company. The intention of the Tribunal, while passing the judgment, is that the Applicants, meaning thereby, the Applicants No. 2 and 3, who are guarantors and/or mortgagors, should be given an opportunity to redeem their property by offering the sale price and for that reason in the judgment it was directed that the Respondent Bank shall provide an opportunity to the Applicants, that means to the Applicants No. 2 and 3 or the mortgagor because Applicant No. 1. being a Company, must have owners or partners; which in this case are the Applicants No. 2 and 3 and the said Sk. Khaleque Uddin, who is the principal mortgagor, to pay the sale price so that they can retrieve their mortgaged property.

6. In this context, I may refer to the decision of the Hon'ble Supreme Court where Section 152 of the Code of Civil Procedure has been explained.

The Hon'ble Supreme Court in State of Punjab -vs-Darshan Singh, (2004) 1 SCC 328 while considering Sec 152 CPC, relied on an earlier decision in Dwaraka Das -vs-State of MP & Anr ( 1993) 3 SCC 500 and quoted para 12 which is reproduced below :- *"12. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes*

by the Court of its ministerial actions and does not contemplate passing of effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the tribunal cannot, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of Code even after passing of effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order....."

5M.A. 10 of 2019- DRT-2 Kol

**7.** In view of the above legal position, in my opinion, there is no difficulty in clarifying the position by adding the words "guarantor/mortgagor" after the word "Applicants" which was the true intent and purpose of the judgment in question and this will not by any means change or vary the term of the judgment in question neither is it a case of review as there was no apparent error in the face of the judgement.

**8.** Let the word applicants occurring in para 8 be read as "applicants /guarantors/ mortgagors" of the order dated 26^th February, 2019 in S.A. 310 of 2012.

**9.** Accordingly, the M.A. is allowed. Let the corrections as indicated in para **2 A & B** and para **8** above be incorporated in the order dated 26.2.2019 in S.A. 310 of 2012.

**10.** This order be treated as part of the order dated 26^th February, 2019 in S.A. 310 of 2012.

**11.** Let fresh certified copy, incorporating the above corrections/modifications be issued by the Registry.

**12.** In view of above, the M.A., being No. M.A. 10 of 2019, arising out of S.A. 310 of 2012 alongwith Misc. I.A. 525 of 2019, stand disposed of. There will be no order as to costs.

Copy of the Order be uploaded in the Tribunal's Website.

File be consigned to Record room.

Order pronounced in open Tribunal on this 6^th day of September, 2019.

ac

Sd/- (M.S. Rao) Presiding Officer DRT-2, Kolkata