Musings At Law-XVIII Narasimhan Vijayaraghavan
Musings At Law-XVIII
Consistency is the virtue of an ass. Law is an Ass. The primary faculty that law needs to be imbued with, is being consistent to be asinine. That is why we have the Law of Precedent and principles such as Stare decisis and prospective overruling and the like, enabling practitioners to advise their clients with confidence. But we do have clients who seek to drag on the proceedings and lawyers who have specialised in the art of keeping such clients happy, so that the professionals can laugh all the way to the bank. In the meanwhile, if litigants get caught in the middle of the muddle, it is their botheration, not the lawyers’. This is particularly true of Execution Petitions filed by creditors, seeking to get the decretal orders complied with, for the remedy is the paramount look out of any one who comes knocking the courts’ doors. But the reality on the ground is anything but satisfactory, in India.
This was brought home to me, very early in my career, within a couple of weeks, as it were. I appeared for a nationalised Bank, whose EP was challenged by the debtor in High Court. I was equipped with a couple of binding decisions from the apex court, based on which I declined the offer of the Senior Advocate who offered a compromise of a compromise decree. The debtor had already agreed for a reduced liability, which too he was seeking to scale down while challenging the EP on imaginary pretexts.
Justice S A Kader, well into his 90s and happily with us, “Excuse me, how old are you in the profession?” When I responded two weeks, he said, “No wonder, you know nothing about law. This is India. Obtaining decrees are dime a dozen. All the problems start for the litigants, after the decree. In fact, litigation is just starting, considering the innovative ways our practitioners and the utter impotency of law, to rescue the decree holder. You have a long way to learn. Bring the bank official to the court tomorrow, and I will put some good sense into both of you, while I would ask the debtor to bring a DD for full and final settlement.” The matter got sorted out, and I learnt more than a thing or two.
My musing is not on that musing, which is a bonus as an aside. Two decades later, a PSU bank held a compromise decree worth several crores. A writ petition was filed by the judgment debtor, challenging the Execution Petition, heard by the learned Master of the High Court. The ground raised was that the provision in the Original Side Rules of the High Court, as per which the ‘power delegated to the Master for dealing with the Execution Petition was ultra vires and unconstitutional, as only the Judge who decided the suit had the authority to deal with the Execution Petition. The delegation to the learned Master was invalid and unenforceable.’
The writ petition came before Justice Sathiadev. Upon hearing the Senior Advocate, and without even turning to my side, the court ordered, “A very interesting question, hitherto never raised, has arisen in these proceedings. Considering the challenge to the vires of the Original Side Rule, this court is inclined to post it before the learned Officiating Chief Justice, to be referred to a larger bench, to consider and decide the substantial issue raised in this writ petition.”
The reference got listed before the First Bench comprising the Officiating Chief Justice S Mohan and his brother Judge. OCJ: “Counsel, can you go ahead and argue the reference. We do see something in your grievance, which may require a quick resolution. As for the other side, we are sure, he would be ready to argue this case yesterday, if we know him well.” I was happy to nod my head, which no one bothered to see.
Counsel for Petitioner: “Mi Lords, you have caught me off guard. I need at least 2 weeks to be ready. Please do consider.” OCJ: “What? You are the Petitioner. You moved the writ. You convinced the learned judge and obtained the reference. EP worth crores in dues is pending. No, your request is not fair at all. Today is Thursday, we can have it tomorrow at 14.15 hrs at best.”
OCJ turned to me and asked, “What about you, are we wrong that you would be ready. What is your response?” Me: “Mi Lords, may I make a submission, without sounding impertinent (I did not wait for any concurrence, I went ahead anyway). The EP is worth Rs.60 crores and interest metre is running daily. It is from a compromise decree on which the PSU bank generously took a hair cut. It is now 18 months since. The borrower has successfully made us dance in the aisles, and never faced us inside court. The writ petition is nothing but a deceitful attempt to drag on the proceedings. What is the primary grouse and grievance of the Petitioner? That the EP must be heard by a learned Judge of this Court. And it ought not to be heard by the learned Master. May I humbly request your Lordships to post the EP itself before a learned Judge of this Court. So that ……”
OCJ was loudly laughing as he turned to the Senior Advocate, “Come on, he has floored you. He has allowed your writ petition, making it easy for us. What grievance can you hope to have. Your remedy is conceded. Your EP would be heard by the learned judge and listed tomorrow at 14.15 hrs…..” Counsel: “How can that be Mi Lords? The reference has to be answered. The Learned judge saw merit in it. Your lordships also thought it deserved a resolution. I don’t think the solution to post the EP before the learned judge would be satisfactory …” OCJ: Ha Ha Ha- this was typical of Justice S Mohan- “Now the cat is out of the bag. Your writ petition was to stall and delay the EP. Yes, the issue you raised may deserve to be heard. But in good times and in a worthy cause. Not this one, where you owe crores under a compromise decree. Sorry, if you and your client thought you were smart, you have been upended by a smarter Alec on the other side. Oh My God, why we never thought of it. Even these few minutes in hearing is a waste. Except, we learnt a lesson how to handle such avoidable references. We shall relegate the issue reference to be raised, in a better cause than this one, since we are literally allowing your writ petition and posting the Execution Petition before Justice M Srinivasan tomorrow at 14.15 hrs.”
As we walked out, the Senior Advocate asked me to inform my Senior that he would like to meet him in the evening itself and arrange to pay the decretal amount and not be compelled to face a tough cookie in Justice M Srinivasan in the morrow.
Incidentally, ‘the substantial question of law’ the Senior Advocate raised, and was referred by Justice Sathiadev, has remained unheard and unanswered too, till date, lending total lack of credence to its intrinsic value, except to serve the borrower’s private cause of convenience.
(Author is practising advocate in the Madras High Court)