Madras High Court
Union Bank Of India vs K.R.Jewellers on 17 September, 2008
Equivalent citations: AIR 2009 (NOC) 313 (MAD.), 2009 (2) ABR (NOC) 363 (MAD.)
Author: V.Dhanapalan
Bench: S.J.Mukhopadhaya, V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 17-09-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN CIVIL REVISION PETITION (PD) No.3438 OF 2007 Union Bank of India, Oppanakara Street, Coimbatore-641 001. ... Petitioner -vs- 1.K.R.Jewellers 2.KRS Suresh 3.KRSA Sundari ... Respondents Revision under Article 227 of the Constitution of India. For petitioner : Mr.Srinath Sridevan For respondents 1 & 3 : Mr.S.V.Jayaraman, Senior Advocate, for M/s.G.A.Dominic Sario. For respondent 2 : Mr.V.P.Raju O R D E R
V.DHANAPALAN,J.
This Civil Revision Petition is filed against the order, dated 21.06.2007, made in I.N.No.375 of 2005 on the file of Debt Recover Appellate Tribunal, Chennai, as against the order, dated 15.02.2002, made in I.A.No.994 of 2000 in T.A.No.589 of 2001 on the file of Debt Recovery Tribunal-II, Chennai.
2. The background of this revision is, that, originally, a suit in O.S.No.511 of 1995 on the file of Subordinate Court, Coimbatore, was filed by the revision petitioner for a direction to the respondents to pay a sum of Rs.11,44,369.33 jointly and severally with further interest thereon at 20.75% per annum with quarterly rests for the cash credit facility up to Rs.7,50,000/-, and the said suit was subsequently transferred to the DebtRecovery Tribunal II, Chennai, and renumbered as T.A.No.589 of 2001. Though the respondents entered appearance on 13.02.1999, T.A.No.589 of 2001 was ordered ex parte on 11.02.2000. Thereafter, I.A.No.994 of 2000 was filed by the respondents to set aside the ex parte order, dated 11.02.2000, and to restore the matter on the file of the Tribunal.
3. The case of the respondents before the Tribunal was that the deceased fourth respondent, by name, Kausalya Mani was the owner of the immovable property which had been offered as collateral security for obtaining the loan from the petitioner bank; the fourth respondent, who was the mother of second respondent, was interacting with the advocate at Coimbatore in the proceedings and the matter was transferred to DebtRecovery Tribunal-II, Chennai; the Tribunal, by its order, dated 24.06.1999, directed the petitioner bank to furnish copies of plaint and documents to enable the respondents' erstwhile counsel to file reply statement finally by 13.08.1999, on which day, counsel for the respondents filed a memo stating that he had not received copies of the plaint and other documents; despite the memo, since the reply statement was not filed even on that day, all the respondents were called absent and set ex parte and the Tribunal passed orders on 11.02.2000; the information was not passed on to the respondents, as the fourth respondent, who was dealing with the affairs, expired on 22.05.1998; there was a communication gap between the previous counsel in Coimbatore and the counsel engaged at Chennai to appear in the matter before the Tribunal; the respondents had sufficient defence in the case and that the respondents ought to have been given an opportunity in the matter including the right of letting in evidence. Accordingly, they prayed for setting aside the ex parte order, dated 11.02.2000.
4. The case of the petitioner bank before the Tribunal was that there was a communication gap between the previous counsel at Coimbatore and the counsel engaged at Chennai and the respondents had not diligently followed up the matter are sufficient to conclude that the respondents do not deserve any indulgence; counsel for the respondents never reported the death of the fourth respondent to the Tribunal and after her death, it was for the respondents to diligently follow up the case and that the copies of plaint and other documents were served on the counsel representing the respondents and, as such, the application was to be dismissed.
5. The Tribunal, on a careful analysis of the materials available on record, held that the respondents herein filed a death extract of fourth respondent, wherein it was stated that the fourth respondent expired on 23.05.1998, whereas vakalat was filed on behalf of respondents 1 to 4 on 13.02.1999, wherein fourth respondent's signature was also found, and before filing the vakalat, already fourth respondent expired; therefore respondents 1 to 3 ought to have known the death of the fourth respondent and, under the circumstances, how the fourth respondent signed in the vakalat was not explained by the respondents. In the affidavit of the respondents, it was stated that fourth respondent was the mother of second and third respondents. In such a situation, respondents 2 and 3 were bound to inform the Tribunal about the death of their mother. Instead, they filed vakalat on behalf of the dead person as well.
6. Learned counsel for the petitioner would strenuously contend that without considering the condonation of delay in filing the appeal, the main appeal itself was taken up and, therefore, the order of Debt Recovery Appellate Tribunal is legally infirmed and that when there is a delay of 1287 days and in the absence of any explanation therefor, the Appellate Tribunal ought not to have traversed into the merits of the case. It is also vehemently argued that the Debt Recovery Tribunal has given cogent and convincing reasons, taking note of the evidence, for arriving at the finding, as there was no cause to set aside the ex parte final order passed on 11.02.2000 and, as such, the said finding cannot be reversed without assigning any reasons. The mainstay of the learned counsel is that the Appellate Tribunal has no authority to compel the petitioner bank to accept the settlement against its will.
7. Conversely, learned counsel for the respondents would contend that only after receipt of communication from the Recovery Officer on 05.10.2005, the respondents came to know of the ex parte order and, thereafter, after applying for the certified copy from Debt Recovery Tribunal, they filed the appeal; the Debt Recovery Appellate Tribunal has considered the condone delay application properly and, hence, the impugned order passed by the Debt Recovery Appellate Tribunal cannot be found fault with on the ground that the delay was not properly explained.
8. We have considered the rival submissions made by the learned counsel for the parties and also gone through the records.
9. A perusal of the records would reveal that counsel for the respondents filed a memo on 24.06.1999, stating that he had not received copy of the plaint and other documents. Counsel for the petitioner bank sent those copies to the counsel for the respondents on 23.07.1999 and the same were received by him on 26.07.1999. Even after receipt of the copies, counsel for the respondents had not chosen to file reply statement and that was why the respondents were set ex parte.
10. The application before the Tribunal was filed by another advocate to set aside the ex parte final order passed on 11.02.2000. Though the mother of respondents 2 and 3 died on 23.05.1998, the same was not informed to the Tribunal till the filing of the application for setting aside the ex parte order.
11. Adverting to the impugned order, it is to be stated that there was a delay of 1287 days in filing the appeal, for which an application was filed to condone the delay. The reasons given for the delay was that the respondents received the communication from the Recovery Officer on 05.10.2005 and only thereafter they came to know about the decree and applied for certified copies of all the records from DRT and after obtaining copies, they filed the appeal in time on 08.03.2002, but the appeal papers were returned on 12.03.2002 to rectify certain defects and the same were not re-presented by the advocate. Though the said inordinate delay was not properly explained by the respondents, the Debt Recovery Appellate Tribunal condoned the delay, which, in our considered opinion, could not be.
12. It is also seen from the records that there was a One Time Settlement between the petitioner and the respondents on 11.09.2001, by which the respondents agreed to pay a sum of Rs.9,29,163.33. But, the respondents were not able to pay the said amount in time. However, the respondents, after a long lapse of time, approached the Appellate Tribunal praying that they would pay the said amount. Since the respondents failed to pay the OTS amount, in pursuance of the order dated 11.02.2000, the Recovery Officer issued recovery proceedings dated 25.07.2005, which cannot be found fault with. Further, when the Appellate Tribunal, by its order, dated 28.12.2006, directed the respondents to pay the original borrowed amount together with interest at 12% per annum, which was not accepted by the bank, the respondents reported to the Appellate Tribunal on 20.03.2007 that they deposited a sum of Rs.27,82,735/- till that date and prayed that the said amount may be accepted as full and final payment and they be discharged of the entire amount payable by them to the petitioner bank and the same was ordered by the Appellate Tribunal accordingly, which order is under attack by the petitioner in this Civil Revision Petition.
13. When there was no satisfactory explanation by the respondents for the inordinate delay of 1287 days, it was very unfair for the Debt Recovery Appellate Tribunal to condone the delay. Mere allegation of negligence levelled against the counsel cannot be a sufficient reason to condone the delay. Instead, the respondents have also equal responsibility as that of the counsel to follow up the matter. There is also no evidence to show that the respondents were following up the matter with the counsel. It is the own case of the respondents that they filed the appeal on 08.03.2002 and the appeal papers were returned on 12.03.2002 to rectify the defects, but their advocate had not represented the papers. Further, the respondents had not brought to the notice of the Debt Recovery Tribunal about the death of their mother and no steps also were taken to bring on record the legal representatives of the deceased. Therefore, the Debt Recovery Appellate Tribunal was at error in condoning the delay. Thereafter, by condoning the delay, Appellate Tribunal had gone to the extent of settling the dues with the amount of Rs.27,82,735/- which was already paid by the respondents and not agreed to by the petitioner bank. Here again, we see no justification in the order of the Appellate Tribunal. When the said amount of Rs.27,82,735/- was not at all compromised, the Debt Recovery Appellate Tribunal cannot compel and direct the petitioner bank to file a full satisfaction memo before the DRT and hand over the documents of title to the respondents.
14. Therefore, we allow this Civil Revision Petition, setting aside the order of Debt Recovery Appellate Tribunal and confirming the order of Debt Recovery Tribunal. No costs. Consequently, the connected M.P.Nos.1 of 2007 and 1 of 2008 are closed.
dixit