Bhavnagar Bricks Manufacturing Co. and Others vs Bank of Baroda and Others

Vaidya, J.—One of the best tests and indices to the overall sense of judicial awareness, discipline, efficiency and a will to justice and that too

as expeditiously as possible, lies in the sense of vigilance exhibited by the court in exercising its discretion in the matter of handling and granting

adjournments to parties. Frivolous adjournment are the very antithesis of justice. Such adjournments not only waste precious public time, defeat the

cause of justice, but at times, they further tend to be harsh punishments to innocent and guileless litigants and witness who, in high hopes, knock at

the doors of justice and, ultimately, to return in utter dismay and find themselves stranded and inextricably stuck.

This appeal from order, accordingly, represents one of such cases of indiscreet acts of adjournment around which the entire discussion revolves

in the following paragraphs of this judgment, which can be an eye-opener to anybody ...

Briefly, respondent-plaintiff No. 1, viz., the Bank of Baroda, is a nationalised bank at Bhavnagar, while the appellant-defendant No. 1, viz.,

Bhavnagar Bricks Manufacturing Co. is a partnership firm of which appellants-defendant Nos. 2 and 3 and respondents-defendants Nos. 2 and 3

(original defendants Nos. 2, 3, 4 and 5, respectively) are partners. In the year 1984, the plaintiff-bank had advanced certain cash credit facilities

(on hypothecation of goods) to the tune of about Rs. 1,30,000 in favour of the defendants doing the business of manufacturing and selling bricks at

Bhavnagar. Since the defendants, despite legal notice demanding the repayment of money so advanced, persisted in continuing default with regard

to the said repayment, on April 13, 1987, the plaintiff-bank wax constrained to institute a suit, the same being Special Civil Suit No. 104 of 1987

in the court of the learned Civil Judge (S.D.), Bhavnagar, against all of them for recovery of the said outstanding dues with interest accrued thereon

to the tune of Rs. 1,80,510.91 coupled with an application (exhibit 5) under Order 38, rule 5 and section 151 of the Code of Civil Procedure,

1908, inter alia, praying for the attachment of the hypothecated goods (of the ownership of the defendants) before judgment, apprehending that if

the defendants came to know about the suit having been filed against them, they were likely to transfer and dispose of the same resulting in serious

injustice to it inasmuch as, if it succeeded in the suit, it would not be in in position to realise the decretal amount. This exhibit 5 application was duly

supported by an affidavit sworn by Shri Ashokkumar Ramniklal Modi, serving as an accountant in the plaintiff-bank itself at Bhavnagar. The trial

court, thereupon, by an order dated April 15, 1987, issued a notice (made returnable on April 30, 1987) to all defendant calling upon them to

show cause why they should not be ordered to furnish security in the sum of Rs. 1,85,000. It appears that despite the fact that the said notice was

made returnable on April 30, 1987, the same could not be heard and decided till September 7, 1989, when the trial court was ultimately pleased

to allow the same by passing the following order :

Plaintiff''s application under Order 38, rule 5 of the CPC is allowed and the hypothecated property of the defendant is hereby attached and the

defendants are restrained from disposing of the same till further order is made. The plaintiff is directed to apply for the inventory of the property in

question so that clear list of hypothecated goods be brought on record.

Feeling aggrieved and dissatisfied by the order, the applicant-defendants have filed this appeal from order.

Mr. Trivedi, the learned advocate for the appellants-defendants, submitted that the impugned judgment and order passed by the trial court is

patently illegal, arbitrary and unjust inasmuch as the same has been passed in total disregard of the settled legal principles governing cases of

attachment before judgment. Mr. Trivedi further submitted that an order of attachment before judgment is very serious thing and that the trial court

ought not to have exercised its judicial discretion so lightly on mere bald and vague assertions of the plaintiff-bank as alleged in exhibit 5

application. Mr. Trivedi further submitted that before relying upon the alleged apprehension of the plaintiff-bank, judicial prudence warranted

insistence upon some tangible, independent and reliable evidence which can satisfy its conscience regarding the acceptability of the same.

As against the above, Mr. Jani, the learned advocate for the respondent-bank, has taken me through the impugned judgment and order of the

trial court and, on the basis of the same, submitted that in the facts and circumstances of this case, it cannot be said that the trial court has not

exercised its discretion judicially. He submitted that all defendants were duly served with summons as well as show-cause notices, and, in response

to the said process of the court, defendants Nos. 1, 2 and 3 did appear before the court and asked for time. Thereafter, on their remaining absent,

right to file the written statement was closed. It was pointed out by Mr. Jani that defendants Nos. 4 and 5 have totally denied the case of the

plaintiff-bank. Mr. Jani further submitted that not only had the huge amount of the plaintiff-bank remained outstanding for many years, but the

defendants had persisted in continuing the default of not repaying the same despite the legal notice. Even after the filing of the suit, the defendants

have cleverly delayed the suit proceedings. This queer and delaying dubious conduct of the defendants clearly justified and supported the alleged

apprehension of the plaintiff-bank against defendants as expressed in application, exhibit 5.

Mr. Jani, learned advocate, while on the one and supported the impugned judgment and order to the extent it upheld the case of the plaintiff-

bank was, on the other hand, at pains to point out certain illegal, unjust, unconcerned and inconceivable attitude of the trial court in conducting the

suit proceedings. According to Mr. Jani, (i) looking to the facts and circumstances of the case as reflected in exhibit 5 application, it was quite clear

that what the bank prayed for was an ex parte ad interim order of attachment before judgment of the said hypothecated goods and yet the same

was not granted, and instead what the trial court did, was to issue a simple show-cause notice to the defendants making it returnable on April 30,

1987, as if the present suit was a petty suit, (ii) that this obvious error committed by the trial court did not rest there as it assumed the form of a

blunder as for about more than two years such an urgent application could not be taken up for deciding the same due to unreasonable laxity shown

in granting prolonged adjournments to defendants and strike at relevant point of time. This grievance of Mr. Jani indeed has a lot of substance and

deserves anxious consideration which is duly taken care of in the latter part of this judgment.

Taking into consideration the overall facts circumstances of the case, it is not possible to agree with the arguments of Mr. Trivedi that the

impugned judgment and order is in any way illegal, arbitrary and unjust. Mr. Trivedi is also not right when he submitted that the trial court has not

exercised its discretion judicially. For brevity''s sake it has to be stated that the complete answer to this criticisms of Mr. Trivedi is available in the

reply arguments of Mr. Jani, learned advocate, quoted earlier in para 6 of this judgment, with which this court expresses its complete agreement.

Ultimately, such types of questions can and have best to be decided by testing the same on the touchstone of the facts and circumstances of each

case which ultimately lends assurance to judicial conscience to pass an appropriate order. However, it has also got to be borne in mind that

whenever a suit a is filed by nationalised bank for the recovery of its dues, then (i) such claims are ordinarily bona fide, honest and correct, (ii) it is

ordinarily proceeded by a legal demand notice; (iii) that such suits are ordinarily based on prima facie reliable documentary evidence; (iv) that the

object of filling such suit is basically the public interest involved; (v) that one should not lose sight of the fact that the money advanced by the bank

is ultimately property belonging to its depositors-members of the public; (vi) that the ultimate motive filing such suit is marked by patent absence of

any personalised bias against the person against whom such suits are filed; and (vii) that these days, one cannot afford to be oblivious of the fact

that, barring a few exception, persons once having successfully duped banks of small or huge amounts, when the time for repayment comes, they

start playing cool, trotting out lame excuses for not repaying the amount, and keeping the banks on a constant run being chased by them for return

of the money so advanced and after tiring out in the process, leaves no option at the command of such banks except to institute a suit against them

and then to rest and wait indefinitely for the decree from the court. As a matter of fact, these are the circumstances which (though application by

the plaintiff-bank was essentially under Order 38, rule 5 of the CPC yet) per se attract the proviso to Order 39, rule 3 of the Code of Civil

Procedure, 1908, in the light of which ad interim relief ought to have been given to the plaintiff-bank. Not to do so may be disastrous to the public

interest involved. Can the court be a party to such public frauds and wastage of public time and money and allow itself to play into the hands of

unscrupulous defendants by unconcerned carefree adjournments ? Situation like the one in the present case may, rightly or wrongly, leave an

impression as if the entire legal system under the sun existed with the only mission, namely, to be soft and accommodative to the unjust and the

wrongdoers and permit all sorts of embarrassment, anxiety and inconvenience to honest citizens. It appears that, in such types of cases, when the

bank institutes the suit for the recovery of large amounts and when it is apprehended by it that defendants were likely to transfer or dispose of

hypothecated goods either to delay or defeat the ultimate decree, in its fairness, judicial prudence warrants that it should err on the safer side, by

passing an ex parte ad interim order in favour of the plaintiff-bank in order see that not even an inadvertent delay (by the court), unnecessarily

defeats the ends of justice. These are the cases where the courts are expected to exercise their discretion in the manner which ultimately protects,

subserves and enhances the overall public interest by granting an ex parte ad interim relief. Only then it can serve the purpose of an instant and

effective check on the other side bent upon delaying and defeating the interest of the bank. However, this court would like to sound a note of

caution to the effect that while passing such ex parte interim orders, special care is required to be taken by the trial court with a view to see that in

the zest for protecting the interest of the plaintiff-bank, the defendants are not put to unjust, undue loss and inconveniences. As a matter of fact, in

this regard, clear guidelines have been duly provided in the proviso to Order 39, rule 3 of the Code of Civil Procedure, 1908, which can, by way

of abundant caution, be utilised in case like the present one. The said provision reads as under :

Before granting injunction, court to direct notice to opposite party. - The trial court shall in all cases, except where it appears that the object of

granting the injunction would be defeated by the delay, before granting an injunction direct notice of the application for the same to be given to the

opposite party :

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the

reasons for its opinion that the object of granting the injunction would be defeated by delay and require the applicant -

(a) to deliver to the opposite party, or to send to him by registered post immediately after the order granting the injunction has been made, a copy

of the application for injunction together with -

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint;

(iii) copies of documents on which the applicant relies; and

to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid

have been so delivered or sent.

Over and above the aforesaid provisions of the Civil Procedure Code, the trial court can also add or two reserving the right and liberty to

defendants to move the court for early hearing on such ad interim relief after duly notifying such intention to the plaintiff. The plaintiff obtaining such

ad interim relief can as well be asked to undertake and assure the court of assistance in the event of the other side moving for early hearing for

getting the ad interim relief vacated. This formula, to my mind, best ensures the rival conflicting interests of the parties at the ad interim stage,

squarely balancing public interest versus the private interest. Thus, these are matter where judicial direction should not take any chance waiting for

hearing the other side before passing ex parte interim orders as any delay creating even a bit of a time gap can provide a golden opportunity to the

defendants to disturb the balance of convenience and tilt the scales of justice against the plaintiff-bank. In the instant case, at the earlier stage of the

suit proceeding, the trial court did commit such an error of not exercising the said judicial prudence by granting an ex parte ad interim order of

attachment before judgment immediately on presentation of exhibit 5 application. It is true that subsequently after two years, the order or

attachment of the hypothecated goods before the judgment has been passed, but we do not know about the efficacy of the same at such a belated

stage.

In the backdrop of the aforesaid discussion, the question that arises for consideration is as to what ought to be the standard and degree of duty

and care to be taken not only by the courts alone but for that purpose any party to the proceedings particularly where the parties are : (i)

Government, or any statutory bodies; (ii) boards; (iii) corporations; (iv) nationalised banks, etc., in cases wherein the question involved is either

recovery of public money, revenue and/or such other things where public interests are heavily at stake in view of the special nature of the suit

and/or urgent application seeking either : (i) ad interim relief; and/or (ii) where show-cause notice is made returnable on a particular date and the

same is not being taken up for one reason or other to the disadvantage of the parties in whose favour such show-cause notice was issued; and/or

(iii) where after obtaining ex parte ad interim orders, parties become slow and reluctant for final hearing of such applications; and and/or (iv) in

matters of adjournments otherwise of cases. Keeping this aspect direction in mind, let us appreciate the facts and circumstances of this case in the

light of the arguments made by learned advocate, Mr. Jani.

Mr. Jani has rightly voiced his grievance, firstly, against unreasonable laxity shown by the trial court in granting prolonged and frivolous

adjournment and then to the strike-call in courts as a result of which the urgent application for attachment before judgment could not be taken up

for more than two years. In order to drive home the point, Mr. Jani has specifically drawn my attention to the Rojkam proceedings of the case at

hand which shows that, right from 13th April, 1987, an urgent application like the one under Order 38, rule 5 of the CPC has been adjourned from

time to time and could be attended only on September, 1989, even though the trial court itself realising the importance and urgency of the same at

one stage had made notice returnable on April 30, 1987, yet the hearing of the same lingered on till September 7, 1989. In between, it appears

that the defendants one after another went on asking for time and the court also, without appreciating the importance of the said application at

exhibit 5, whatsoever, granted the same. Such pathetic and carefree adjournments doled out by the trial court can never be lightly countenanced

save and except at the risk and cost of justice and ultimate faith of people in the administration of justice.

No doubt, granting of an adjournment is entirely within the discretion of the court and as to how the said discretion in given case is to be

exercised, certain well-defined guidelines are provided in Order 17, rules 1, 2 and 3 of the Code of Civil Procedure. For ready reference, the said

Order 17 under the caption ""Adjournments"" with relevant rules thereunder is reproduced as under :

O. 17, r. 1. Court may grant time and adjourn hearing. - (1) The court may, it sufficient cause is shown, at any stage of the suit grant to the parties

or to any of them, and may from time to time adjourn the hearing of the suit.

(2) Costs of adjournment. - In every such case, the court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit

with respect to the costs occasioned by the adjournment :

Provided that, -

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witness in attendance have been examined,

unless the court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary

(b) no adjournment shall be granted at the request of a party, except where the circumstance are beyond the control of that party,

(c) the fact that the pleader of a party is engaged in another court, shall not be a ground for adjournment,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as

a ground for adjournment, the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have

engaged another pleader in time,

(e) Where a witness is present in court but a party, or his pleader is not present or the party or his pleader, though present in court, is not ready to

examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit

dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not

ready as aforesaid.

Procedure if parties fail to appear on day fixed. - Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail

to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such order as it thinks fit.

Explanation. - Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails appear on

any way to which the hearing of the suit is adjourned, the court may, in its discretion, proceed with the case as if such party were present.

Court may proceed notwithstanding either party fails to produce evidence, etc. - Whether any party a suit to whom time has been granted fails

to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of suit for which

time has been allowed, the court may, notwithstanding such default -

(a) if the parties are present, proceed to decide the suit forthwith

(b) if the parties are, or any of them is, absent, proceed under rule 2.

Unfortunately, these days, above provisions are either not taken care of by the lower courts much as they deserve to be or perhaps

conveniently connived at. Difficult to say. The exercise of discretion in matter of adjournment is by no means less important and/or less responsible

in matter judicial function, as it has direct and serious bearing on the ultimate fate of the suit and, therefore, it calls for constant awareness on the

part of the court whenever the same is sought for. Not that the adjournments should always be refused, but ordinarily the grant of an adjournment

should always and only be in the larger interest of justice and for that, one definite, genuine and unavoidable grounds to the satisfaction of judicial

conscience must be made out by the party taking adjournment. Particularly in cases where some interim reliefs are prayed for or the same has been

already obtained by an ex parte order and when the delay is likely to defeat justice, adjournment should never be granted on the mere asking. In

any case, every court is expected to be well-equipped with the power of just discretion and discrimination in distinguishing frivolous from genuine

adjournment sought. Talking about the instant case, it must be stated that the trial court has exercised its discretion absolutely arbitrarily. As stated

earlier, the granting of any adjournment has direct nexus (i) with the overall time duration of the suit proceedings; (ii) its ultimates resultant impact

on the interim relief and/or final decree, as the case may be; and (iii) that the delay is very antithesis of justice. Now, since the point regarding laxity

by trial courts in granting the adjourning has been raised in this appeal, it desirable that its overall implications are thrashed out through and through.

Over and above the guidelines that are produced in the matter of adjournments under Order 17 of the Code of Civil Procedure, 1908, before

granting adjournment, the courts should also further invariably ask itself the following questions in order to have a complete and comprehensive

picture and assessment of pending suit proceedings :

(a) What is the type and nature of the suit ?

(b) What is the type and nature of the application seeking ad interim relief ?

(c) How old is the suit ?

(d) How old is the said interim relief application ?

(e) How many times the party seeking adjournments have in the past got adjournments and on what grounds ?

(f) Whether the modus operandi of a party seeking adjournment is prima facie bona fide or mala fide ?

(g) How much time the suit proceedings are reasonably likely to take along with its judgment and decree ?

(h) What priority the pending proceedings deserve, having regard to the nature of the dispute, the reliefs prayed for, relations between the parties,

status, nature of hardship, balance of consonance and the nature and quality of the evidence likely to be adduced in support of the case ?

(i) Whether the ground on which the adjournment is sought for is not only genuine and sufficient, but further whether the same was likely to result in

any loss of balance of convenience or cause irreparable harm, hardship and injustice to other side, in case granted ?

As a matter of fact, every court in the background and on the basis of the aforesaid guidelines is supposed to have an overall view, review and

rough estimate of the various stages of the suit proceedings in order to remember and remind itself of the time is likely to be taken for the same.

Thus, the importance of the time-consciousness or time-budget can by no means be permitted to be overlooked or underestimated save and

except at the cost and risk of justice by losing one''s own judicial conscience.

Thus, Mr. Jani of course is right in blaming the trial court for belated hearing of exhibit 5 application, but at the same time, it has got to be

stated that the plaintiff-bank too also cannot be permitted to run away from this issue keeping the blame entirely at the door at the court, without

sharing to some extent its own responsibility for the delay that has occurred. It is quite understandable why the defendants sought adjournment

after adjournment in this case, but it is difficult to understand the stark apathy of the plaintiff-bank itself in not opposing the adjournments sought by

the defendants and pressing hard for early hearing of exhibit 5 application. It is true that ordinarily when learned advocates are engaged to conduct

proceedings, parties relying upon them may not bother as regards the day-to-day conduct of the suit in the court proceedings, but then there are

cases and cases where these days parties also have to stake some interest and initiative in their cases and must remain in direct touch with to act on

their own, more particularly when the parties to the suit proceedings are either the Government, banks or any other statutory corporation, boards,

bodies, etc., and further when some important question of public interest is involved. In such important cases, it is desirable that parties themselves

must remain present to instruct their learned advocates in the court-room even whenever adjournments are sought. Further, wherever there is a

strike call and learned advocates are not inclined to attend court proceedings and/or when the opponents are deliberately delaying the court

proceedings on one pretext or the other and the courts, in their turn, for whatever reasons, are adjourning the cases, unmindful of its public

importance and consequences, the officers attending upon such matters on duty should be asked by such respective departments not to lightly take

shelter behind adjournments, their advocates'' strike call (which can be just genuine and justifiable) so far as courts are concerned, they work

during ordinary office time. Accordingly the responsible officer should and can bring to the notice the urgency and importance of the matter and,

irreversible situations arising out of it, resulting in great injustice of the matter is heard at earliest. Whenever such submissions are made, courts are

bound to call the other side pass an appropriate order as warranted and deemed fit under the facts and circumstances of each case. It has got to

be appreciated that if the party itself is not vigilant and does not care to move the court to pursue the matter, courts cannot be entirely blamed for

delay so occasioned.

These days in more than about 80% of litigations, the Government and/or statutory corporations, boards and banks are parties. Delays in the

court for one reason or other are also not unknown. Under such circumstances, the time is ripe for all administrative higher-ups, be it in

Government or other statutory institutions, bodies to take stock of the situation think over it and impart appropriate instructions to their respective

law officers as well as the officers in their departments attending cases before the concerned courts as to how effectively and efficiently to deal with

situations in cases of public importance before courts so as to counteract adjournment moves and/or any other things obstructing and frustrating the

public interest. It appears to me that, during the strike period or under any such emergency, the public officers private parties can certainly

approach the court for appropriate orders in urgent matters. The idea is not to bypass or undermine the importance and role of learned advocates

in court proceeding. As a matter of fact, it hardly requires to be emphasised that, but for the constructive and active assistance of learned

advocates, no judicial system on earth can ever function as efficiently and effectively as one would desire, but at the same time, when any aggrieved

citizens, keep to seek the redressal of the legitimate grievances, approaches the court, the court is duty bound to attend and decide the same. Thus,

merely because there is strike, the court cannot deny any citizens the right to approach it to ventilate his legitimate grievance calling for immediate

redressal by urgent orders and the court in its turn has to decide in whatever way it likes a warranted by the facts and circumstances of each case.

What is stated hereinabove relates to the public servants in matters of public importance before the court. But the private party, of course, has

equal right can approach the court in a similar way as public servants are expected to be. The only difference is that so far as a private party is

concerned, it is entirely left to the sweet will of such parties to move or not to move the court in urgent matters. But this sweet will of attending the

courts during emergencies like strikes or adjournments, in the opinion of this court, should not be open to the public servants as discussed above,

as the overall social, public interest cannot be permitted to the attended in a mechanical and irresponsible way by guardians of public interest.

In view of the aforesaid discussion, since the learned advocate for the appellants has failed to make out any case for interference with the

impugned judgment and order, this appeal will have to be dismissed.

In the result, this appeal from order fails and is dismissed, accordingly, with orders as to costs.