Debt Recovery Appellate Tribunal - Delhi
S.S. Kaushik vs Syndicate Bank And Ors. on 18 December, 2002
Equivalent citations: III(2003)BC53
ORDER
K.S. Kumaran, J. (Chairman)
1. The 5th defendant S.S. Kaushik in O.A. 210/ 97 before the Debts Recovery Tribunal-I, Delhi (hereinafter referred to 'the DRT") is the appellant herein. The 5th defendant was set exparte on 22.11.2001 and final order was passed on 7.1.2002. The 5th defendant S.S. Kaushik filed an application under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the 'the Act') but, the same was dismissed by the learned Presiding Officer of the DRT by order dated 7.2.2002 holding the 5th defendant was not vigilant and the reasons for his non-appearance were not convincing. Aggrieved by the same, the 5th defendant S.S. Kaushik has filed this appeal. The 1st respondent Syndicate Bank who was the plaintiff in the said O.A. 210/97 has filed a reply opposing the appeal.
2. I have heard Counsel for the appellant and the 1st respondent, and perused the record.
3. The learned Counsel for the appellant/5th defendant contends that the appellant/5th defendant and the defendants 1, 2 and 4 in the O.A. had engaged Mr. A.K. Sangal, Advocate, and had even filed the written statement through him, but subsequently, on 6.10.1998, they engaged Mr. P. Verma, Advocate. The learned Counsel for the appellant/5th defendant points out that the day-to-day order sheets of the Presiding Officer of the DRT have been annexed with the appeal, and the order dated 10.12.1998 will show that Mr. P. Varma had appeared for defendant Nos. 1, 2, 4 and 5 but the case was adjourned to 11.12.1998 and then to 17.12.1998. He also points out from various orders passed upto 5.1.2000 that there was no effective hearing at all till that date, and the case was being adjourned from time-to-time on the grounds like the Presiding Officer was on leave, that he was transferred, and that there were a large number of cases. The learned Counsel points out from the order passed by, the new Presiding Officer on 5.1.2000 that the Presiding Officer himself was of the view that after 10.12.1998 there was no effective hearing, and had ordered notice to be issued to the Counsel for the defendants for 9.3.2000, but as the advocates were on strike on 9.3.2000, the matter was adjourned to 9.8.2000. According to him it is on 9.8.2000 the confusion occurred as to which Counsel was appearing for which of the parties. From the order sheet dated 9.8.2000 the learned Counsel for the appellant points out that Mr. V.K. Nanda, Advocate was shown as appearing for the 5th defendant and that Mr. P. Varma, Advocate (represented by Mr. S.K. Tanwar, Advocate) was shown as appearing for the defendant Nos. 1, 2, and 4. The learned Counsel for the appellant/5th defendant contends that Mr. V.K. Nanda, Advocate was never engaged by the appellant/5th defendant, whereas, Mr. V.K. Nanda appeared for the 4th defendant Ashok Malhotra. According to the learned Counsel for the appellant/5th defendant, while the 4th defendant had filed an application for direction to the plaintiff Bank to supply him the copy of the O.A. and other documents so that he can file a Written Statement, the order dated 9.8.2000 reads as if it was the 5th defendant who had done so, and accordingly, a direction was given to the plaintiff Bank to supply the copy of O.A. and the documents with a further direction to the 5th defendant to file the written statement within four weeks, whereas, the 5th defendant had already filed his written statement on 1.7.1998 itself. To support his contention, the learned Counsel for the appellant/5th defendant refers to the copy of the application moved by the 4th defendant in this behalf before the DRT, though, in the application it has been mentioned that it was filed on behalf of the 5th defendant. The learned Counsel for the appellant contends that because of this confusion Mr. Varma did not appear for the appellant on the subsequent hearing under the impression that the 5th defendant had engaged Mr. V.K. Nanda, Advocate. The learned Counsel for the appellant points out that from 9.8.2000 the matter was adjourned to 6.10.2000 then, to 5.1.2000, and from 5.1.2001 the matter was adjourned to 15.5.2001 as the Presiding Officer of the DRT had received orders for his transfer. He further points out that on 15.5.2001 also Mr. V.K. Nanda, Advocate was shown to be appearing for the 5th defendant, while the defendants 1, 2 and 4 were proceeded exparte on the ground that no one had appeared for them, and the matter was adjourned to 31.7.2001 for filing written statement and evidence, The learned Counsel for the appellant also points out that on 31.7.2001 the matter was adjourned to 21.9.2001 as the Advocates were on strike and that on 21.9.2001 the matter was adjourned to 17.10.2001 once again granting time to 5th defendant to file the written statement. He also points out that on 17.10.2001 the matter was put up before the Assistant Registrar who observed that the 5th defendant had not filed the written statement, and ordered the matter to be placed before the Presiding Officer on 22.11.2001. On 22.11.2001, as none had appeared for the 5th defendant, he was proceeded exparte and the matter was adjourned to 4.1.2002. As pointed out already, on 7.1.2002 the final order was passed.
4. But, as the learned Counsel for the appellant/5th defendant rightly points out, the confusion, which started on 9.8.2000 as if Mr. V.K. Nanda, Advocate was appearing for the 5th defendant, continued till the 5th defendant was set exparte. The learned Counsel for the appellant/Sth defendant contends that Mr. V.K. Nanda who was stated to be appearing for the 5th defendant did not appear for him later and, in spite of the fact that the 5th defendant had filed written statement in the year 1998 itself, the DRT proceeded on the basis that he had not filed the written statement. The learned Counsel for the appellant/5th defendant also rightly points out that the Presiding Officer of the DRT has mistaken Mr. V.K. Nanda as appearing for the 5th defendant, whereas, he appeared for the 4th defendant, and under this mistaken impression the 5th defendant was proceeded exparte on the ground he had not filed any written statement. The learned Counsel for the appellant/5th defendant contends that he (the real 5th defendant/appellant herein) had been advised by his Counsel to appear in the Tribunal as and when required, and this is probabilised by the fact that there was no effective hearings from 10.12.1998 to 5.1.2000 due to various reasons like the Presiding Officer was on leave, that the Presiding Officer was transferred, and that there were large number of cases for the day. On 5.1.2000 the new Presiding Officer issued notices to the Counsel for all the defendants taking note of this fact that there was no effective hearing during the above said period. It is evident that it is in these circumstances that the Presiding Officer of the DRT proceeded on the basis that Mr. V.K. Nanda was appearing for the 5th defendant, but, had not filed the written statement, and the 5th defendant was set exparte on 22.11.2001 followed by the final order on 7.1.2002.
5. But the learned Counsel for the respondent/plaintiff Bank contends that there is nothing to show that Mr. P. Varma, Advocate had informed the appellant/5th defendant that he was withdrawing his appearance on behalf of him (5th defendant), and there is also no affidavit filed by Mr. P. Varma as to why he did not appear after 9.8.2000. He contends that the appellant/5th defendant had been negligent, as he had not appeared from 10.12.1998 onwards.
6. But, in my view, in the circumstances pointed out above which are borne out by records in the shape of day-to-day orders of the Presiding Officer of the DRT concerned, the appellant/5th defendant cannot be stated to have been entirely negligent. It is not denied that the 5th defendant had already filed written statement. Similarly, the fact that Mr. V.K. Nanda was mistakenly stated to be appearing for the 5th defendant and every body including the Presiding Officer of the DRT proceeded on that basis cannot be denied in view of what I have pointed out. In the circumstances it is quite probable that Mr. P. Varma, Advocate thought that the appellant/5th defendant had entered appearance through Mr. V.K. Nanda, and did not appear after 9.8.2000, which ultimately resulted in the appellant/5th defendant being set exparte. Therefore, in my view, it cannot be stated that the appellant/5th defendant was completely negligent or there was no sufficient cause for his non-appearance.
7. But, the learned Counsel for the 1st respondent relies upon the decision in Anant Raj Agencies v. Delhi Development Authority, 86 (2000) Delhi Law Times 834. That was a case where the Court found that the applicant was negligent throughout. He also relies upon the decision in Mrs. Naimat Kaur v. Decon Company, 82 (1999) DLT 389. It is also a case where the Court found that the party was negligent, and also observed that the blame was shifted conveniently to the lawyer, apart from the fact there was no application to condone the delay. The learned Counsel for the 1st respondent also relies upon the decision in Naimat Kaur v. Decon Company, 82 (1999) DLT 389, but, there again the Court found the applicants were most negligent in defending the case, and their non-action and want of bona fides were apparent. The learned Counsel for the 1st respondent also relies upon the decision in National Small Industries Corporation Ltd. v. Thermo Steting Industrial Products, 2001 II A.D. (Delhi) 857. But, in that case it was found that the application for setting aside the exparte decree was filed almost after 18 years without even an application under Section 5 of the Limitation Act. The learned Counsel for the 1st respondent relies upon the decision in M. Paul Babuta v. Union of India and Anr., 75 (1998) Delhi Law Times 634, where it was held that by engaging a Counsel the party is not relieved of his duties, and if he did not keep contact with his Counsel, it was his fault and in the circumstances the negligence of the Counsel cannot come to the aid of the party in an application under Order IX Rule 13 to set aside an exparte order.
8. These decisions cannot have any application to the facts of this case. In view of the factors already pointed out by me it cannot be said that the appellant/5th defendant was thoroughly negligent. Of course, the 5th defendant could have also contacted his Counsel to find out as to what had happened, but, I have already pointed out the 5th defendant had been asked to come only when required. This is probabilised by the fact from 10.12.1998 to 5.1.2000 there has been no effective hearing at all in view of the factors like the Presiding Officer was on leave, that the number of cases fixed for a day was more, and that the Presiding Officer was transferred. Therefore, though the 5th defendant under normal circumstances of this case pointed out show the appellant/5th defendant is not entirely to be blamed.
9. The learned Counsel for the appellant relies upon the decision in M.K. Prasad v. P. Arumugam, AIR 2001 Supreme Court 2497, wherein the Hon'ble Supreme Court held that even though the appellant before them appeared to be not as vigilant as he ought to have been, yet, his conduct did not, on the whole, warrant him to be castigated as an irresponsible litigant, and that his failure to adopt extra vigilance should not have been made a ground for ousting him from the litigation with respect to the valuable property. This decision goes to support the case of the appellant.
10. The learned Counsel for the 1st respondent also contends that in the event of the Tribunal agreeing with the plea of the appellant/5th defendant to set aside the exparte order, it may direct the appellant/5th defendant to deposit a portion of the suit claim. But, in the circumstances pointed out by me, I am of the view that the interests of justice do not call for the imposition of a condition as prayed for by the learned Counsel for the 1st respondent. In my view, It will be sufficient if the appellant/5th defendant is directed to compensate the 1st respondent Bank by paying cost.
11. Taking into consideration all these circumstances, I am of the view that the appellant/ 5th defendant has shown sufficient cause for his non-appearance before the DRT and, therefore, ex pane final order passed against him on 7.1.2002 has to be set aside, and he should be given on opportunity to contest the O.A. on merits. However, in view of the fact that the appellant/5th defendant could have also contacted his Counsel or gone to the DRT to find out about his case, and the fact that the had not done so for a long time, though due to the fact that he was asked to come to the Court as and when required, the appellant/5th defendant should compensate the plaintiff/1st respondent by paying a cost of Rs. 5,000/- for the inconvenience to which the 1st respondent has been put.
12. Resultantly, this appeal is allowed setting aside the impugned order dated 7.2.2002.
13. The exparte final order passed as against the appellant/5th defendant on 7.1.2002 by the DRT is set aside. However, the appellant/5th defendant is directed to pay a cost of R's. 5,000/- to the 1st respondent Bank by depositing the same into the said Bank. The learned Presiding Officer of the DRT shall dispose of the O.A. with regard to the appellant/5th defendant on merits after giving him and the plaintiff sufficient opportunity to put forth their case.
14. A copy of this order be furnished to the appellant and to the 1st respondent.