Judgment:
Majmudar P.B., J.
1. By filing this petition, the petitioner has challenged the order passed by the Debts Recovery Appellate Tribunal (hereinafter referred to as 'the DRAT') dated 11th January, 2008, in Appeal No. 108 of 2006, by which the DRAT has dismissed the appeal of the present petitioner by confirming the order passed by the Presiding Officer, Mumbai Debts Recovery Tribunal (hereinafter referred to as 'the DRT'), dated 2nd December, 2005, in Miscellaneous Application No. 36 of 2008, modifying the order passed on 30th March, 2005, in Original Application No. 335 of 2001.
2. It is the case of the petitioner that the petitioner is a Banking Company and is registered under the Companies Act, 1956. The respondent No. 1, State Bank of Patiala, is also a Banking Company which has advanced facilities to one Unikol Bottlers Limited (in liquidation) (hereinafter referred to as 'the Company'). Respondent Nos. 3 and 4, Industrial Development Bank of India and Industrial Finance Corporation of India, are the public financial institutions which had advanced facilities to the said Company. ICICI Bank Ltd. ('ICICI') had also given certain facilities to the said Company for which ICICI had filed proceedings in the Bombay High Court. Subsequently, ICICI assigned its debts due from the said Company in favour of the petitioner. A deed of assignment dated 29th September, 2004, was executed in this behalf whereby all right, title, interests and benefit of ICICI in respect of the claim against the said Company was assigned to the petitioner. The DRT-Mumbai allowed the petitioner to be impleaded as applicant in place of ICICI.
3. The Company in liquidation had taken loan from respondent No. 1 by creating mortgage of their factory premises situate at Sahibabad, Dist. Ghaziabad, U.P., and also by hypothecating movables including plant, machinery, stock-in-trade, raw material and finished goods. The mortgage was created by a deed dated 16th June, 1990, while movables were hypothecated by a deed of hypothecation dated 20th October, 1990. As the said Company did not pay the dues, a suit being Suit No. 2170 of 1993 was filed by respondent No. 1 in the Delhi High Court for the recovery of dues due to it. The said suit was subsequently transferred to DRT-Delhi and was numbered as OA No. 292 of 1995. The said Company had also taken loan from consortium of Banks viz. ICICI, IDBI an IFCI. ICICI Bank filed proceedings being Suit No. 1671 of 1995 in the Bombay High Court for recovery of an aggregate sum of Rs. 2,49,04,890/-, specific performance of an agreement/undertaking to create mortgage in respect of the said immovable property and to enforce the said mortgage and enforcement of the hypothecated properties. Respondent No. 1 was also a party to the said proceeding. By an Order dated 16th June, 1997, the Court Receiver, High Court, Bombay, was appointed as Receiver with a direction to take physical possession of the properties and accordingly Court Receiver took the possession. The said suit was subsequently transferred to the DRT-Mumbai, and numbered as Original Application No. 335 of 2001.
4. The DRT-Delhi decreed the suit preferred by respondent No. 1 on 31st March, 1997, whereby the mortgaged property viz. Factory land, building and machinery situate at Sahibabad, Dist. Ghaziabad, U.P. was ordered to be sold along with the hypothecated goods and raw materials and the net sale proceeds should be appropriated for the outstanding of the respondent No. 1 Bank.
5. Subsequently, DRT Mumbai passed a decree in favour of the present petitioner on 30th March, 2005. So far as IFCI an IDBI are concerned, they had also filed separate suits for recovering their dues against the said Company before the DRT-Jaipur. The application filed by IFCI was decreed against the Company in May, 2004 and the application filed by IDBI was decreed against the Company in June, 2004. The properties of the Company which were situated at Sahibabad, Dist. Ghaziabad, U.P. were sold by the DRT-Mumbai which included both movables and immovables. The same was put to sale as a composite lot. After the properties were sold, respondent No. 1 Bank filed Miscellaneous Application No. 36 of 2005 in Original Application No. 335 of 2001 before the DRT-I, Mumbai, for modifying the decree dated 30th March, 2005, passed in Original Application No. 335 of 2001, and a direction was also sought for to the effect that the entire sale proceeds should be paid first to the respondent No. 1 Bank which had obtained the mortgage decree against the Company. The said application was allowed by the DRT-Mumbai vide its order dated 2nd December, 2005. The aforesaid order was challenged before the DRAT, Mumbai, being Appeal No. 108 of 2006. The DRAT by the impugned order dismissed the said appeal which order is impugned at the instance of the petitioner-Bank in this petition.
6. Mr. Saraf, learned Counsel appearing for the petitioner, submitted that the DRAT has failed to exercise jurisdiction vested in it in law by not setting aside the order passed by the DRT. Mr. Saraf submitted that the application filed by respondent No. 1 was preferred after a considerable delay and respondent No. 1 was already joined as a party respondent in the original proceedings before the DRT and under these circumstances at the most DRT could have set aside the decree by restoring the original application. The DRT could not have modified the decree in the proceedings taken out by respondent No. 1. The said proceeding was taken out only for setting aside the ex parte decree, therefore, DRT had no jurisdiction and could not have modified the decree and could not have dismissed the application of the petitioner in connection with the property in question. Mr. Saraf submitted that the prayer of respondent No. 1 in the said application being Misc. Application No. 36 of 2005 was that the judgment dated 30th March, 2005 passed by the DRT be set aside and the original proceedings be restored to file with a liberty to respondent No. 1 to file the written statement along with the original documents. It is submitted by Mr. Saraf that the DRT has exceeded its jurisdiction in passing the impugned order which is confirmed by the DRAT. Mr. Saraf further submitted that in any case the original application should have been restored to file and after giving opportunity to both the sides, the same should have decided on its own merit, after framing necessary issues. Mr. Saraf further submitted that at the most the DRT, Mumbai, after setting aside the decree should have permitted respondent No. 1 to file written statement and if the proceedings are revived accordingly, the petitioner can justify its claim by bringing appropriate evidence to the effect that respondent No. 1 was party to the arrangement regarding creating mortgage in favour of the petitioner by the Company in liquidation, The said fact was within the knowledge of respondent No. 1. Mr. Saraf submitted that even otherwise, the application preferred by respondent No. 1 before the DRT, Mumbai, being Miscellaneous Application No. 36 of 2005 was time barred and without condoning the delay, DRT, Mumbai, could not have set aside the said application on merits. He further submitted that in the application for setting aside the original order, there was no prayer for modification of the original order and, therefore, the impugned order of the DRT is beyond the prayer made by the respondent No. 1 in the application. According to Mr. Saraf, respondent No. 1 had not even prayed for any decree for mortgage in connection with the mortgaged property in the proceedings taken out before Delhi High Court. Mr. Saraf has also further submitted that respondent No. 1, even though was party before the DRT, Mumbai, had not even filed written statement and accordingly ex parte decree was passed against respondent No. 1. Under the circumstances, at the most the DRT, Mumbai, could have restored the entire suit on file but it was not open for the DRT, Mumbai to amend the decree. Mr. Saraf accordingly submitted that the matter is required to be sent back for de novo hearing of the original application. Mr. Saraf submitted that the petitioner has been denied an opportunity of leading evidence before the DRT, Mumbai, to show that an agreement to create mortgage was entered into between petitioner and the Company in liquidation with the consent of respondent No. 1 herein. Mr. Saraf also further submitted that from the correspondence on record it is clear that the officers of respondent No. 1 knew very well that there is already an agreement in favour of the petitioner regarding creating mortgage of immovable property. Mr. Saraf has submitted that respondent No. 1 did not have precedence or priority regarding its dues as respondent No. 1 had not filed the suit for enforcement of the mortgage deed. It is his further submission that though the mortgaged decree has been passed in favour of respondent No. 1 by the DRT, Delhi, that was nullity because the mortgage decree was passed without seeking prayer for it as the suit was filed only for monetary decree. He has placed reliance on the provisions of Order 2, Rule 2 of the Civil Procedure Code, 1908.
7. Ms. Maravarman, learned Counsel appearing for respondent No. 1, submitted that in Original Application No. 335 of 2001, respondent No. 1 had instructed their Advocates to appear and even a draft written statement was prepared but the Advocate negligently and contrary to the interest of the Bank did not file the written statement. It is submitted by her that the assignor of the present petitioner i.e. ICICI Bank had also intervened in the recovery proceedings initiated by respondent No. 1 before the DRT, Delhi. It is submitted that as the properties of the Company in liquidation were sold in view of the order of DRT, Mumbai, the decree passed by the DRT, Delhi was transferred to DRT, Mumbai. It is further submitted by her that though it is true that the suit was not filed for enforcement of the mortgage, however, averments were made in this behalf in the plaint to the effect that the Company had created the mortgage in respect of the immovable property. It is further submitted that when there is already a decree in this behalf by DRT, Delhi, no useful purpose will be served in sending the matter back to DRT by restoring the original application as the DRT, Mumbai cannot go behind the decree passed by DRT, Delhi, which is passed earlier in point of time. It is further submitted by her that there is nothing on record to show that respondent No. 1 has signed any document in connection with the agreement entered into between the petitioner and respondent No. 1 for creating mortgage in favour of the petitioner. It is submitted that respondent No. 1 has got first right to appropriate the sale proceeds of the property for which reliance was placed on various documents creating mortgage in favour of respondent No. 1. It is submitted that simply by entering into an agreement for creating mortgage, no right is conferred in favour of the petitioner as against that there already a decree in favour of respondent No. 1 in connection with the mortgaged property.
8. We have heard the learned Counsel for the parties at length and have gone through the record and proceedings of the case.
9. It is required to be noted that so far as the suit filed by respondent No. 1 against the borrower Company is concerned, the DRT, Delhi has already passed a decree on 31st March, 1997 by which the borrower Company was ordered to pay a sum of Rs. 8,91,14,004.93 together with pendente lite and future interest at the rate of 23.50 per cent per anum. The DRT, Delhi, has furthered ordered that in the event of failure to pay the said amount within the stipulated period, respondent No. 1 shall be entitled to recover the said amount by sale of the hypothecated stocks, assets and other raw materials, also stores and goods, and the mortgage property i.e. factory, land, building and machinery situated at 37/1, Site IV, Sahibabad Industrial Area, Sahibabad, Dist. Ghaziabad, U.P. As per the mortgage deed. So far as the petitioner is concerned, there was no mortgage deed executed in its favour in respect of the immovable property but there was merely an agreement executed by the borrower Company to create an equitable mortgage. The Company in liquidation had agreed to create mortgage in favour of the petitioner. The petitioner had filed suit for specific performance of the agreement to create mortgage in which Court Receiver, High Court, Bombay, was appointed as Court Receiver in respect of the properties of the Company. No mortgage was created in favour of the petitioner or its predecessor-in-title but there was only an agreement to create a mortgage which was sought to be enforced. At this stage, it is necessary to refer to the order passed by the DRT, Mumbai on 30th March, 2005, in the original application which reads thus:
1. The application is allowed with costs.
2. The defendant No. 1 do pay a sum of Rs. 2,49,04,80/- (Rupees Two crores forty nine lakhs four thousand eight hundred ninety only) with future interest @ 10% p. a. With quarterly rests from the date of application till realization of the amount.
3. The hypothecated goods described in Exhs. B & C be sold and net sale proceeds thereof be paid to the applicant and defendant Nos. 2 and 3 in proportion of their respective charges in accordance with the provisions of Sections 529, 529-A and 530 of the Companies Act
4. The immovable property described in Exh. A be sold and net sale proceeds thereof be paid to the applicant and defendant Nos. 2 and 3 in proportion of their respective charges in accordance with the provisions of Sections 529, 529-A and 530 of the Companies Act.
5. The Receiver to continue in execution.
6. Issue Recovery Certificate accordingly.
Subsequently, auction was conducted by the Court Receiver after completing all the required formalities. The offer given by M/s. A.R.S. Enterprises Pvt. Ltd. for Rs. 10.34 crores was accepted. The Receiver was thereafter directed to complete the formalities and execute necessary documents in favour of M/s. ARS Enterprises Pvt. Ltd. This fact is reflected in the order of the DRT, Mumbai, dated 22nd June, 2005. The petitioner filed an application for distribution of the sale proceeds amongst the petitioner and respondent Nos. 3 and 4 in proportion to their respective ratio. At that stage, respondent No. 1 filed Miscellaneous Application No. 36 of 2005 on 15th July, 2005, wherein the following prayers were made.
(a) that it be declared that the immovable property more particularly described in Annexure 'A' filed here is exclusively mortgaged in favour of the appellant Bank and the appellant Bank alone is having right to sell the property and appropriate the sale proceeds towards its outstanding.
(b) that it be declared that the appellant Bank is having charge on the moveable properties of the defendant company more particularly described in Annexure' B' hereto.
(c) that it be declared that the sale conducted by respondent No. 1 be declared as invalid and the respondent Nos. 1 and 2 be restrained from selling the property of defendant company more particularly described in Annexure 'A' and 'B' filed hereto till the disposal of the present M.A.
(or in the alternative)
(d) that judgment dated 30.3.05 passed by this Hon'ble Tribunal be set aside and direction be issued for reopening the hearing of the original application of 2nd respondent from the stage of trial with the liberty extended to the appellant to file their written statement and proof affidavit along with the original documents.
Interim reliefs:
That pending the final decision and hearing of this appeal, the appellant seek issuance of the following order:
(a) That the sale proceeds of Rs. 10.34 crores realized by respondent No. 1 by way of sale of immovable/ moveable property be deposited before this Hon'ble Tribunal till further direction is issued in this regard by this Hon'ble Tribunal.
(b) that respondent Nos. 1, 4 and 5 herein be restrained from appropriating the sales proceeds of Rs. 10.34 crores realized by the sale in the immovable/moveable property of the defendant company.
(c) that direction be issued to stay the execution proceedings if any to be initiated by respondent No. 1 and 2 against the assets of the liquidated company till the disposal of the present Miscellaneous Application filed by the Appellant Bank herein.
10. The main prayer is regarding declaration that the immovable property described in Annexure A of the application is exclusively mortgaged in favour of the respondent No. 1. Considering the documentary evidence on record, the tribunal by its order dated 2nd November, 2005 modified the order dated 30th March, 2005. The order reads thus:
1. The judgment and order passed by this Tribunal in Original Application No. 335 of 2001 dated 30-3-2005 be and is hereby amended to the extent of declaring that the immovable property described in Exh. A of the said original application was validly mortgaged in favour of the applicant herein i.e. the defendant No. 4 in the said Original application and it was alone entitled for the sale proceeds of the said property in accordance with the provisions of Sections 529, 529-A and 530 of the Indian Companies Act, 1956.
2. The Recovery certificate be amended accordingly.
11. It is required to be noted that when there is already a decree in favour of respondent No. 1 passed by DRT, Delhi, the Court was duty bound to correct the mistake by amending the decree as in view of the documentary evidence, which is not in dispute, there is already a mortgage created in favour of respondent No. 1, the DRT, Mumbai was perfectly justified in amending the decree. Under the circumstances, there is no question of giving any opportunity to the petitioner to lead further evidence by restoring the original application. There is not a single document to show that respondent No. 1 had agreed for creating any mortgage in favour of the petitioner. Not only that, it is an admitted fact that no mortgage is created but it was merely an agreement to create mortgage in favour of petitioner. Simply by entering into an agreement, no right is created in favour of the petitioner. As against that, respondent No. 1 is already a decree holder in connection with the mortgaged properties. It is required to be noted that the learned Counsel for respondent No. 1 has given particulars regarding sending necessary instructions to the Advocate with all documents showing that respondent No. 1 was having the first claim over the mortgaged property and that even the written statement duly signed was forwarded to the Advocate for filing the same before the High Court, Mumbai. On 20th May, 1998 the same was sent back by the Advocate on the ground that it was required to be attested by the Notary at Mumbai. Considering the factual aspect of the matter, it cannot be said that the Bank was negligent, though of course, the Advocate of the Bank had not taken appropriate care to file the written statement as ultimately the Bank was under the impression that the written statement has already been filed in the suit. Subsequently, respondent No. 1 came to know that the DRT, Mumbai had not recognized their charge on the immovable property in question and in view of the same Miscellaneous Application No. 36 of 2005 was preferred before the Tribunal.
12. Considering the aforesaid aspect of the matter, in our view, the Tribunal was justified in amending the original decree to the extent of declaring that the immovable property described in Exhibit A was validly mortgaged in favour of respondent No. 1.
13. It is required to be considered that DRT, Delhi, in Original Application No. 292 of 1995 has already recorded that the property in question was mortgaged with respondent No. 1 herein and they were entitled to the net sale proceeds thereof. All these facts were not brought to the notice of the DRT when the original application was heard. In our view, the DRT, Mumbai, has rightly found that the Tribunal was not sitting in appeal over the order passed by DRT, Delhi and it had no jurisdiction, therefore, to comment upon the merits and demerits of the order of the DRT, Delhi. As per the final order of DRT, Delhi, there exist a valid mortgage in favour of respondent No. 1 herein and, therefore, DRT, Mumbai, could not have gone beyond the same and could not have recorded any contrary finding.
14. It cannot be disputed that no mortgage was created in favour of the petitioner herein and the suit was only for specific performance for creating such mortgage. Respondent No. 1 is not party to even the said agreement. When there is already a registered document of mortgage in favour of respondent No. 1 and in earlier proceedings the DRT, Delhi had already recognised the right of respondent No. 1 to recover their dues from the sale proceeds of the mortgaged properties, in subsequent proceedings, DRT, Mumbai, naturally could not have taken any contrary view. Even otherwise, agreement to create mortgage does not create any right in favour of the petitioner herein in view of the admitted fact that the property in question is already mortgaged by way of executing registered document in this behalf by the Company in liquidation.
15. Considering the aforesaid aspects, in our view, the Presiding Officer of DRT-1, Mumbai, has not committed any error or has exceeded his jurisdiction in modifying the earlier order passed by him by amending the said order holding that the immovable property described in Exhibit A to the original application was validly mortgaged in favour of respondent No. 1 herein i.e. defendant No. 4 in the said original application and that respondent No. 1 alone was entitled for the sale proceeds of the said property in accordance with the provisions of Sections 529, 529-A and 530 of the Indian Companies Act, 1956. The DRAT, therefore, has rightly dismissed the appeal preferred by the petitioner before it.
16. It is also required to be noted that equitable mortgage was created by the company in liquidation in favour of respondent No. 1 by deposit of the original title deeds of the property situate at Sahibabad, Dist. Ghaziabad, U.P. The said fact was concealed by the petitioner and, as a matter of fact, the property stood merged in favour of respondent No. 1 much prior to the petitioner's transaction/documents regarding agreement to create mortgage in their favour. The contention of respondent No. 1 is also required to be noted to the effect that in Original Application No. 335 of 2001 filed by ICICI Bank Ltd., they admitted before the Tribunal that there is no mortgage rights over the immovable property such as factory, land, building, etc. situate at Sahibabad and that there was only an agreement to create mortgage of the same. It is required to be noted that no decree was passed for specific performance of the agreement to create the equitable mortgage in favour of the petitioner but directly order was passed for sale of the immovable property and for payment of the sale proceeds of the property to the petitioner. It is further required to be noted that mere agreement to create a mortgage itself does not give any right to the petitioner except for getting a decree of specific performance. As pointed out earlier, respondent No. 1 admittedly is not a signatory to the agreement. There is nothing on record to show that respondent No. 1 had agreed in any manner in connection with creating any document of mortgage in favour of the petitioner. We, therefore, find substance in the argument of the learned Counsel for respondent No. 1 that the Officers of respondent No. 1 Bank had entered into certain correspondence only in connection with the movable property for which there is a pan passu charge in favour of the petitioner. After realising all these aspects of the matter, DRT, Mumbai ultimately amended the order by interpreting the earlier order to the effect that no mortgage decree was passed in favour of the petitioner Bank. So far as the movable property is concerned, since there is no dispute that the movables were hypothecated to the petitioner also by the deed of hypothecation, the sale proceeds of the movable properties were directed to be shared proportionately by respondent No. 1 along with the petitioner and other two banks which were party to the consortium.
17. At this stage, argument of Mr. Saraf is also required to be considered to the effect that the Tribunal had no jurisdiction to amend the earlier order as at the most an ex parte order could have been set aside under Order 9, Rule 13 of C.P.C. It is contended that the original application should have been restored to file so that the petitioner could have led proper evidence if issues are framed to the effect as to whether the respondent No. 1 was party to the arrangement by which the Company in liquidation agreed to create mortgage in favour of the petitioner. In our view, under the provisions of Section 22(2) of the Act, the Tribunal has the same power as are vested in the Civil Courts while trying the suit. Not only that, when this fact was brought to the notice of the Tribunal, the Tribunal was duty bound to correct its earlier order to give effect to the order of DRT, Delhi. The Tribunal was not only but in fact was duty bound to amend the earlier decree. Even under Section 5-A of the Debts Recovery Tribunal (Procedue) Rules, 1993, any party aggrieved by an order made by the Tribunal on account of some mistake of error apparent on the face of 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. Even if the matter is to be sent back, then also no other view can be taken by the DRT, Mumbai, as the DRT, Mumbai, cannot set aside the order passed by DRT, Delhi. At this stage, reference is also required to be made to Section 19(25) of the Act which reads as under:
19. Application to the Tribunal.
justified(25) The Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.
In this view of the matter, the Tribunal has jurisdiction to amend its own order to prevent abuse of its process or to secure the ends of justice.
18. Since a decree has already been passed earlier to enforce the mortgage in favour of respondent No. 1, naturally no contrary order could have been passed in any other proceedings. When this fact came to the notice of the Tribunal, the Tribunal was duty bound to correct the said mistake by amending the earlier order. It is required to be noted that on one hand respondent No. 1 is already having a decree in its favour for enforcement of the mortgage as against that the petitioner's right is only to get decree regarding specific performance of the agreement to create mortgage. When it was brought to the notice of the Tribunal that there is already a decree of DRT, Delhi in favour of respondent No. 1, DRT, Mumbai amended part of the decree in order to give effect to the decree already passed by DRT, Delhi.
19. It is also required to be noted that the claim of respondent No. 1 regarding mortgage property was registered with the Registrar of Companies as against that so far as the petitioner is concerned, it has got its charge registered in respect of movables only. Considering the said aspect, the Tribunal has done substantial justice by amending the earlier order and, as stated earlier, no useful purpose will be served in restoring the original application on file for de novo trial for giving opportunity to the petitioner to lead evidence. As stated above, when there is already a decree of DRT, Delhi, as well as considering the fact that mortgage was already created by registered document in favour of respondent No. 1, petitioner cannot claim any better right only on the basis of agreement to create mortgage. The matter rests purely on documentary evidence and in view of the documentary evidence on record, in our considered opinion, the view taken by the DRAT is the only plausible view in so far as right of respondent No. 1 in connection with the mortgaged property is concerned.
20. Mr. Saraf has relied upon the decision of the Supreme Court in the case of (Salil Dutta v. T.M. and M.C. Private Ltd.) : [1993]1SCR794 . The said judgment is under Order 9, Rule 13 of the C.P.C. wherein the Supreme Court has held that even there is improper advice of Advocate, it cannot be accepted as a sufficient cause for setting aside the ex parte decree. In the said case, the defendant having its registered office in the same city and being managed by educated businessmen, the defendant's conduct was found to be non-cooperative with the Court and in the facts and circumstances of the case the Supreme Court has held that the defendant's application under Rule 13 was not sustainable. So far as the facts of the present case is concerned, as pointed out earlier, the facts itself are very clear that the original suit was only for specific performance. The DRT, Mumbai, therefore, could not have granted prayer beyond the prayers in the suit and subsequently having realised that the Tribunal itself found its duty to correct the earlier order, otherwise there would be direct conflict with the earlier order passed by the DRT, Delhi. The Tribunal has given cogent reasons for coming to the conclusion that respondent No. 1 had never acted in a negligent manner as respondent No. 1 had given instructions to their Advocate for filing the written statement.
21. Mr. Saraf has further submitted that even though the plea of maintainability of application of respondent No. 1 was not taken before the DRT, yet a question of jurisdiction can always be taken at any point of time and for that purpose he has relied upon the decision of the Supreme Court in the case of (State through Special Cell, New Delhi v. Navjot Sandhu alias Afshan Guru and Ors.) : (2003)6SCC641 . It is true that point of jurisdiction can always be taken at any stage. However, in our view, on merits the Tribunal was justified in amending the original order as the Tribunal was duty bound to do so and, therefore, it is not possible for us to accept the say of Mr. Saraf that the application of respondent No. 1 was not maintainable before the DRT, Mumbai.
22. Mr. Saraf has relied on the decision of the Supreme Court in the case of [Chief Engineer, Hydel Project and Ors. v. Rauinder Nath and Ors.) : (2008)IILLJ294SC . In that case, the Supreme Court applying the principles of coram non judice has held thus in para 28:
Once the original decree itself had been held to be without jurisdiction and hit by the doctrine of coram non judice, there would be no question of upholding the same merely on the ground that the objection to the jurisdiction was not taken at the initial, first appellate or the second appellate stage. It must, therefore, be held that the Civil Court in this case had no jurisdiction to deal with the suit and resultantly the judgments of the trial Court, the first Appellate Court and the second Appellate Court are liable to be set aide for that reason alone and the appeal is liable to be allowed. In view of this verdict of ours, we have deliberately not chosen to go into the other contentions raised on merits. We, however, make it clear that we have not, in any manner, commented upon the rights of the respondent-plaintiffs, if any, arising out of the labour jurisprudence.
It is true that it is open for the petitioner in the instant case to take objection about maintainability of the application made by respondent No. 1 at any stage on the ground of jurisdiction. However, in our view, it cannot be said that the application filed by respondent No. 1 was not maintainable and considering the documentary evidence and more precisely the earlier order passed by the DRT, Delhi, the Tribunal found that the original order is required to be amended for which appropriate reasons have been given by the DRT, Mumbai. In our view, this is not a case in which this Court would like to interfere with the same under Article 227 of the Constitution of India as no other view than the one taken by the Tribunal is possible.
23. Considering the aforesaid aspect of the matter, in our view, when it is not in dispute that there is already a mortgage decree in favour of respondent No. 1, in view of the direction given by the DRT, Delhi, in the subsequent proceedings no contrary direction could have been given by the DRT, Mumbai considering the fact that the prayer in the original application was only in connection with passing the decree for specific performance. As against that there was already a decree in connection with the mortgaged property in favour of respondent No. 1, in our view, DRT, Mumbai, was perfectly justified in correcting the earlier order and by allowing the application preferred by respondent No. 1. It is not in dispute that the earlier decree was an ex parte decree and inspite of instructions given by respondent No. 1, the Advocate for respondent No. 1, for reasons best known to him has not filed the written statement and ultimately when this fact came to the notice of respondent No. 1 that they preferred an application which application was entertained by the DRT, Mumbai, and having realised the fact that there was already an order of DRT, Delhi, amended the said decree. In our view, the procedure adopted by the DRT, Mumbai, therefore, cannot be said to be without jurisdiction. Considering the facts and circumstances of the case and in view of what is stated above, in our view, this is not a fit case in which the order passed by the DRT, Mumbai, and confirmed by the DRAT is required to be interfered with in our extraordinary jurisdiction under Article 227 of the Constitution of India.
24. Looked at from any angle, the writ petition is without merit and deserves to be dismissal which we direct. No order as to costs. At this stage, Mr. Saraf submitted that the interim arrangement by which the amount is still allowed to retain before DRT, Mumbai may be continued for some time as the petitioner would like to challenge this order before the Supreme Court. Request is reasonable. The respondent No. 1 shall not withdraw the amount from the DRT, Mumbai, till 17th November, 2008.