Debt Recovery Appellate Tribunal - Allahabad
Kamta Nath Pandey And Anr. vs Allahabad Bank on 6 March, 2006
Equivalent citations: I(2007)BC1
JUDGMENT
P.K. Deb, J. (Chairperson)
1. Both these appeals have been heard analogous and are being disposed of analogously and the parties arc the same and the issues involved are also almost the same and similar in nature.
2. Appeal No. R-310/03 has been preferred by the above named appellants against the order dated 13lh May, 2003 passed by the then Presiding Officer, D.R.T., Allahabad in M.A. No. 181/02, whereby and whereunder the restoration petition filed under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter shall be referred to as the RDDBFI Act) for setting aside the final order passed in T. A. No. 170/2000 on 27th August, 2002 has been dismissed.
3. The appellants were the applicants in that M.A. and they were defendant Nos. 3 and 4 in T.A. No. 170/2000. Both the appellants had appeared before the Tribunal at Allahabad when the case was transferred from the D.R.T., Jabalpur. The original suit was filed before the Civil Judge. Mirzapur by the respondent Bank claiming Rs. 1,29,13,369.64 together with interest at the contracted rate pendente lite and future and also with cost and other usual reliefs. In the suit defendant No. 2 was Triveni Nath Pandey, who died during the pendency of the proceeding before the D.R.T., Allahabad and his heir Smt. Vidya Pandey, widow has been substituted in his place as is revealed from the records of the T.A. No. 170/2000. The appellants had appeared before the Tribunal through their Advocate Mr. Jauhari and on 2-3 occasions he took time for filing written statement and also seeking direction from the Tribunal to supply them with the copy of the statement of accounts. But no such direction was given by the Tribunal and ultimately on 1st August, 2002 the appellant's Counsel filed a petition for dismissal of the claim of the Bank in limine as proper statement of accounts have not been filed nor being given to the appellants. That petition was rejected on the very date of the filing of the petition and the learned Presiding Officer wanted to hear the arguments of the case on the same day and order of rejection of the petition was passed not in the order sheet but on the body of the application itself. The case was deferred to 2nd August, 2002 and on that date a further application was filed by the defence Counsel for and on behalf of the appellants that they may be granted two weeks' time to file written statement as statement of accounts as filed in the suit had been supplied to the appellants only on 31st July, 2002 but no order was passed on that petition and the case was heard ex parte and then judgment was delivered on 28th August, 2002. It further appears that the date of judgment was being altered in the order sheet itself by cutting the previous date. According to the appellants they relied on their Advocate, who assured that after the copy of the statement of accounts being received, the Counsel would consult them and then file written statement in the case, but after the case was disposed of ex parte, then they have never been informed of the disposal of the case and only in the month of September, when they came to the D.R.T., Allahabad, they heard that the ex parte decree was passed and then after engaging another lawyer, they inspected the records of the case and then filed the restoration petition, but there was some delay in filing of the restoration petition as the pairvikar of the case i.e. Madho Prasad was suffering from ailment and soon after recovery the restoration petition was Tiled. A medical certificate was also attached to the restoration petition. For and on behalf of the respondent Bank, they raised objection towards maintainability of the restoration petition alleging that the appellants had appeared in the case and as such the case was never being ex parte one. This contention has got no logic. Appearance of the appellants was there through their Advocate, but they had not been given chance to file written statement and then the case was heard ex parte and as such restoration petition was maintainable. Regarding the other factual aspect as has been stated in the restoration petition as mentioned above, only denial has been made from the side of the respondent Bank. The learned Tribunal had disposed of the restoration petition mechanically holding that the restoration petition is barred by limitation without considering the main ingredients regarding debarring of the appellants due to sufficient cause in contesting the case. It was alleged by the appellants that even if there was some negligence on part of the lawyer of the appellants, the same should not be thrust upon the appellant as they had put all reliance and faith on their Advocate. It further appears that the copy of judgment had also not been sent to the appellants as required under the D.R.T. Procedure Rules.
4. Appeal No. R-311/03 has been filed by the same appellants against the order dated 13th May, 2003 passed in M.A. No. 184/02 filed by the same appellants for setting aside the ex parte judgment and order passed in T.A. No. 169/2000 dated 27th August, 2002. The appellant-applicants were defendant Nos. 2 and 5 in the original case and they had only appeared in the case through their Advocate Mr. Jauhari and it appears that both the cases between the same parties were fixed on the same date before the Tribunal, other defendants did not appear. Defendant No. 4 in this case was Triveni Nath Pandey. who died during the pendency of the proceeding before the D.R.T., Allahabad after its transfer from the D.R.T., Jabalpur. The case was originally filed before the Civil Court by the Bank for recovery of Rs. 57,49,864.15 together with contracted rate of interest for pendente lite and future along with cost and other usual reliefs. In this case also only the appellants had put in appearance, other defendants did not appear and other facts remain the same as has been enumerated above in respect of the other appeal.
5. Thus, the fact remains in both the cases that the lawyer for the appellants had prayed for time to file written statement on the ground that they have not been provided with the copy of the statement of accounts and direction was sought to be given to the respondent Bank to supply the copies but no such direction was ever given by the Tribunal to the Bank, but ultimately it appears that copies were supplied on 31st July, 2002, although the claims of the appellants were that the loan was taken long back and statement of accounts was given only from a later year and date. Be that it may, the appellants were pressing through their Advocate for supply of statement of accounts and the said petition was rejected only when the appellants' Counsel filed a petition for dismissal of the claim case for non-supply of the proper statement of accounts, but there was also a petition on the next dale i.e. 2nd August, 2002 that the statement of accounts as being annexed to the plaint were supplied to the appellants' Counsel only on 31st July, 2002 and as such adjournment was sought for two weeks to file written statement but that was also not taken cognizance of and the case was heard ex parte on 2nd August, 2002 and then the judgment was delivered ex parte. The restoration petition in this case also stands on the same footing as that of the other case as elaborately stated above.
6. Now the position remains for both the cases that the Counsel for the appellants was pressing for supply of the copies and to file written statement on getting the copies. But ultimately when half-heartedly statements were supplied, then also appellants' Counsel sought time for two weeks to file written statement. but no order was passed on it.
7. On perusal of the order sheet of both the cases, it appears that the learned Tribunal was on a wrong impression that all the defendants have put in appearance but the fact was not so. Ram Babu Shukla, other defendants in both the cases had also filed restoration petitions on the ground that he had not been served with notice as his place of abode has been shifted to Delhi, but his restoration petition also in both the cases had been dismissed by a common order passed. Be that it may, it appears that steps were taken by the appellants' Counsel time-to-lime, might be dilatory tactics but then rejection of prayer for filing written statement ought not to have been rejected in the way, it has been done in the present cases. If the Tribunal was not satisfied with the ground, on which prayer for adjournment was made for filing written statement and the direction as sought for statement of accounts, then the Tribunal would have granted the last chance to the appellants' Counsel to file written statement even with imposition of heavy cost, but the way the case has been taken ex parte cannot be found to be justified on the facts as stated above. It appears that at one point of time, the appellants' Counsel had sought time on the ground that proposal of compromise has been sent to the Bank and Court had also given time to file such compromise petition, but ultimately that had not been mutualized. When the pleas of compromise was taken, then taking of adjournment on the ground of non-furnishing of statement of accounts may not be a good ground for adjournment towards filing of written statement, but the ways it has been done as is revealed from the records are not proper and justified. At least one opportunity ought to have been given to the appellants to file written statement even with imposition of heavy cost. Moreover, it appears that whatever steps were taken from the side of the appellants were through their Advocate alone and nowhere it could be found that the appellants were directly involved in the matter. There might be some negligence of not contacting the lawyer of the appellants but they have asserted regarding the assurance being given by their Advocate. In the circumstances, I find that even if there is negligence or dilatory tactics being taken by the Counsel for the appellants, the same should not be thrust upon the appellants in the circumstances of the present particular case.
8. On this count reference may be made to a judgment of Hon'ble Bench of Bombay High Court as reported in Shaikh Abdul Rafi Ahdul Aziz v. Aspy Beharam Talathi and Shyam Lal Dhar v. Ply Board Industries AIR 1981 J&K. 1995 (FB), but I have already mentioned that laches were there from the side of the appellants also and definitely there were dilatory tactics from the side of the appellants' Counsel and when proposal of compromise was made, then definitely the appellants do admit of taking loan from the Bank and not paying the dues. In that way, the cases have been delayed for a long time although good grounds have been found for allowing the restoration petition, but the same cannot be done without any condition being imposed. The ex parte judgment passed in T.A. No. 170/2000 and T.A. No. 169/2000 be set aside and the cases be restored to file on a pre-condition of deposit of Rs. 1.00 lakh each by the defendant-appellants within a period of two months from this date with the respondent Bank and this amount if deposited shall be adjusted towards the dues being determined ultimately. If the pre-condition is not satisfied as mentioned above, then the ex parte judgment passed in both the cases shall prevail.
9. Send down the records of both the cases to the Tribunal concerned immediately. The stay order passed regarding D.R.C. cases earlier shall remain in vogue for two months more and if the cases are not revived on non-fulfilling the precondition, stay order would automatically be vacated.