1. This appeal is against order dated 30.6.1999 passed by DRT, Delhi in O.A. No. 67/95, Indian Bank v. Ajay India and Ors.
2. By the impugned order, a final order has been passed in the aforesaid O.A. and adecree of Rs. 35,57,268.94 has been passed.
However, in the circumstances mentioned in affidavits filed before the Tribunal, pendente life interest has been waived and future interest has been awarded @ 12% p.a. till realization of the entire amount. By the impugned order, it has been directed that the decretal amount shall be paid in 16 equal quarterly instalments and in the event of failure on the part of the defendants, the entire amount shall become payable immediately along with contractual rate of interest. According to the impugned final order, the instalments shall commence from 1.9.1999. The appellant Bank is aggrieved with the impugned order and the same has been challenged on the following three points, namely-- 2. the pendente lite interest should not have been waived and the pendente lite and future interest ought to have been awarded at the contractual rate; and 3. the Tribunal below ought to have passed an order for sale of the mortgaged property.
3. In this appeal, notice was issued and the respondents appeared and talked for compromise. It appears that compromise talks failed. On 8.5.2001, I had directed that the parties shall note that in case they were not in a position to come to a compromise, the appeal will be heard on merits on the next date 4.7.2001 was fixed as the next date of hearing. On that date, I was on tour and, therefore, 18.7.2001 was fixed. None appeared for the respondents on that date and, in the interest of justice, 5.9.2001 was fixed for arguments. Thereafter, 2-3 dates were given but no one appeared for the respondents. Accordingly, I heard this appeal on merits today.
4. Mr. M.C. Kochhar, Counsel for the appellant Bank submitted his arguments and led to the records of the Tribunal below. From what he submitted, there is no ground to disbelieve that the respondents, after paying the first instalment, failed to pay the subsequent instalments.
Therefore, one thing is clear that even if the order granting payment of the decretal amount in 16 instalments is maintained, the whole amount has become due at once in view of the impugned order itself as the respondents failed to pay the decretal amount as per the instalments directed by the Tribunal below. Therefore, when the entire amount has become due for realization in lumpsum, I see no reason to interfere with the wisdom of the learned Presiding Officer of the Tribunal below in granting instalments. The appellants can straightaway proceed to recover the entire decretal amount.
5. Coming to the point of waiver of pendente lite interest and grant of 12% p.a. as future interest by the Tribunal below. I may say that grant of the same was within the discretion of the Tribunal below but that discretion ought to have been exercised judiciously. In the facts and circumstances of the case, I see no reason to interfere with grant of 12% p.a. as the future interest till realization of the decretal amount but I see no ground for waiving the pendente lite interest by the Tribunal below. Learned Counsel for the appellant has urged before me that the respondent had moved an application for waiver but that application was never decided by the Tribunal below after hearing the appellant and only in the impugned Order, the pendente lite interest has been waived. He, therefore, contended that without hearing the appellants on the point of waiver, the Tribunal below ought not to have waived the pendente lite interest. I agree with the contentions and I am inclined to set aside the direction of waiver of pendente lite interest. Since I am not interfering with the grant of 12% p.a. as future interest. I direct that the appellants shall be entitled to pendente lite interest as well @ 12% per annum and the impugned order stands modified accordingly.
6. In the original application for recovery, the appellants had prayed for a preliminary decree for sale of mortgaged property mentioned in para 8 of the recovery application. In the impugned order, there is no discussion on this relief and, therefore, it cannot be said that this relief has been rejected by the Tribunal below. To me, it appears that the aforesaid relief lost sight of the learned Presiding Officer. There is nothing on record to show that the said property was not mortgaged with the appellant Bank. Consequently, the Tribunal below ought to have given relief as prayed for in the recovery application. Consequently, I direct that the appellants shall be entitled to recover the decretal amount by sale of the mortgaged property mentioned in para 8 of the recovery application and the impugned order stands modified accordingly.
7. The appeal is, accordingly, allowed in part and the Tribunal below is directed to modify the Recovery Certificate as per directions given above.
8. Record of the concerned O.A. be sent to the concerned Tribunal with copy of this order.
Copy of this order may be given Dasti to the appellant and the respondent.