Debt Recovery Appellate Tribunal - Delhi
Sudhir Kumar Khurana vs Punjab And Sind Bank And Ors. on 15 December, 2004
Equivalent citations: II(2005)BC9
ORDER
K.S. Kumaran, J. (Chairperson)
1. First respondent Punjab & Sind Bank (hereinafter referred to as 'the respondent Bank') filed O.A. 180/98 before the Debts Recovery Tribunal, Delhi (hereinafter referred to as 'the DRT) against the appellant herein (3rd defendant in the O.A.; and hereinafter referred to as 'the appellate-defendant') and three others. The learned Presiding Officer of the DRT passed the ex parte final order dated 1.5.2002. The appellant-defendant filed an application dated 21.11.2002 before the DRT to set aside the ex parte final order passed against him. The appellant-defendant also filed an application to condone the delay in filing the above said application. The learned Presiding Officer of the DRT, by the impugned order dated 25.2.2003, dismissed the application for setting aside the ex parte final order.
2. Aggrieved, the appellant-defendant has preferred this appeal to set aside the order dated 25.2.2003. The respondent Bank has filed a suitable reply opposing the appeal, to which the appellant has filed a rejoinder.
3. I have heard the Counsel for both the sides, and perused the records.
4. The learned Counsel for the appellant-defendant points out from the copy of the O.A. that the address of the appellant-defendant has been given as No. 9772, Gali Neem Wali, Nawab Ganj, Pahar Ganj, Delhi 110055, and contends that the same is not correct. He contends that the appellant did not receive any notice/summons from the DRT with regard to the O.A. in view of the wrong address given in the O.A. According to him, the correct address of the appellant was No. 9772, Gali Neem Wali, Nawab Ganj, Delhi and that the word "Pahar Ganj" has been added so that the appellant-defendant may not be served, and is prevented from taking part in the proceedings before the Tribunal. The learned Counsel for the appellant-defendant also points out from the day-to-day orders passed by the DRT, especially, the order dated 30.3.1999 wherein it has been mentioned that the Counsel for the respondent Bank filed the affidavit regarding service stating that notices were served on the defendants. He also points out that it is clear from that order that neither the acknowledgement cards nor the unserved envelopes had been received back and that the learned Counsel for the respondent Bank had requested for ordering substituted service. He also points out that this request was allowed, and the defendants were ordered to be served by publication. The learned Counsel for the appellant-defendant points out that from the order dated 30.11.2000 passed by the DRT it is evident that the third defendant has been proceeded ex parte on the ground that he had not appeared in spite of publication of the notice. The learned Counsel for the appellant-defendant contends that subsequently the ex parte final order was passed on 1.5.2002. The learned Counsel for the appellant-defendant contends that since the notice had been sent to the wrong address and since unserved notice had not returned, the Counsel for the respondent Bank was not justified in requesting the DRT to order service by the mode of publication, and the DRT was also not right in ordering substituted service, that too, without recording its opinion that the appellant-defendant was either avoiding service deliberately or could not be served by the ordinary mode. Therefore, he contends that the service by the mode of publication cannot be construed to be a valid service. For the same reason he also contends that the finding of the learned Presiding Officer of the DRT in the impugned order dated 25.2.2003 that the appellant should be deemed to have been served inasmuch as the unserved envelope had not returned within 30 days from the date of despatch, is also not correct.
5. But, the learned Counsel for the respondent Bank, on the other hand, contends that notice was taken to the appellant-defendant to the correct address. According to him, Gali Neem Wali, Nawab Ganj is behind Sadar Bazar Police Station and Sadar and Phar Ganj are one and the same area. The learned Counsel for the respondent Bank points out a photograph showing the board of the Police Station, Sadar Bazar and another photograph of the office of the Deputy Commissioner of Municipal Corporation Delhi, Sadar Pahar Ganj zone. He also contends that it is evident from the original unserved cover addressed to the appellant-defendant (now produced along with the reply to this appeal as Annexure-A) that attempt was made by the postman to serve the appellant at Delhi-110006 also, but the appellant could not be served.
6. But, the learned Counsel for the appellant-defendant contends that when a dispute has arisen as to the address given in the O.A. and the location of the address given, the parties should have been given opportunity to lead evidence before-ever the application to set aside the ex parte final order was dismissed.
7. I agree with the learned Counsel for the appellant-defendant in this respect. There is dispute as to whether the address of the appellant given in the O.A. is correct or not. In the application filed before the DRT to set aside the ex parte final order it has been specifically mentioned in paragraph 6 that the summons had been sent by the DRT to the wrong address and the address of the appellant-defendant has never been the same as that mentioned in the summons or in the publication. The appellant-defendant has also stated in paragraph 7 of that application that in Exhibit PW-1/10 exhibited by the respondent Bank before the DRT the address has been given as 9772, Gali Neem Wali, Nawab Ganj, Delhi. He also points out the further averment in paragraph 8 of that application that word "Pahar Ganj" has been added to prevent the appellant-defendant from taking part in the proceedings before the DRT. The appellant-defendant has also produced the copy of the said Exhibit PW-1/10 exhibited by the respondent Bank before the DRT, which supports the contention of the appellant-defendant. The learned Counsel for the appellant-defendant contends that the summons in the O.A. were not taken either to the correct address mentioned in this document or even to the address of the mortgaged property.
8. In view of the dispute raised by the appellant-defendant with regard to his address, I am of the view that the parties should have been given an opportunity by the DRT to show the correct address of the appellant-defendant before the application to set aside the ex parte order was dismissed by the DRT. If an incorrect address had been given in the summons, and the summons had not been served by reason of such incorrect address having been given in the summons, then the appellant-defendant cannot be deemed to have been served on the ground that the unserved envelope had not returned within 30 days from the date of its despatch. Similarly, if the address was incorrect, then direction to take notice by the mode of publication in the newspaper cannot be sustained, and the service of notice by publication of the notice in the newspaper cannot be held to be a valid service. Therefore, in my view, the learned Presiding Officer of the DRT should allow the respondent Bank to establish that notice was taken to the correct address of the appellant-defendant, and that he had deliberately avoided the same or that he could not be served by the ordinary mode of service so that the appellant could be directed to be served by the mode of substituted service, i.e. publication of the notice in the newspaper. Further, the contention of the appellant- defendant is that since he was not served with the summons in the O.A., he did not know about the proceedings, but came to know of these proceedings only on 8.11.2002 when a notice from the Recovery Officer was found pasted at the premises. Further contention of the appellant-defendant is that it is thereafter the appellant-defendant went to the Registry of the DRT on 11.11.2002, enquired about the proceedings, inspected the records on 14.11.2002, and then filed the application dated 21.11.2002 to set aside the ex parte final order. The learned Counsel for the appellant-defendant also contends that the appellant has also filed an application to condone the delay in filing the application to set aside the ex parte order. The learned Counsel for the appellant-defendant points out that the said application has not been considered and decided by the learned Presiding Officer. I also find that the learned Presiding Officer has not considered and decided the request to condone the delay.
9. The learned Presiding Officer has, in his impugned order dated 25.2.2003, observed that unserved envelope had not returned within 30 days of its despatch and, therefore, it should be deemed that the appellant 3rd defendant was served, but by way of abundant caution he was also served by publication. But, as rightly pointed out by the learned Counsel for the appellant-defendant, only when the address given in the summons sent to the appellant 3rd defendant is correct, there could be such a presumption. For the same reason, the direction to serve the notice by publication in the newspaper can also be upheld if the summons contained the correct address of the appellant-defendant, but had returned unserved. Further, there should have been material to show that the appellant-defendant was either deliberately avoiding the service or could not have been served by the ordinary mode of service. Therefore, on the basis of the material as it stands, it cannot be either held that the summons should be deemed to have been served or that the direction to serve the appellant-defendant by publication of the notice in the newspaper is valid.
10. Therefore, this observation of the learned Presiding Officer cannot be sustained as matters stand now.
11. The further observation of the learned Presiding Officer of the DRT is that the contention of the appellant-defendant that his address is located in the area of Sadar has also no force as the photographs show that the Sadar Bazar and Pahar Ganj area are one and the same, and according to the respondent Bank the address of the appellant 3rd defendant is situated behind the Sadar Bazar Police Station/Delhi Nagar Nigam's office. But, a perusal of the unserved envelope now produced by the respondent Bank (with its reply) shows that the same was sought to be served at different postal zones, but yet could not be served. Therefore, the dispute regarding the address and its location have to be decided by allowing the parties to lead evidence. The finding has been given by the DRT without allowing the parties to lead evidence with regard to the exact location of the address of the appellant-defendant. Therefore, this observation cannot also sustained.
12. Therefore, the appeal has to be allowed setting aside the impugned order dated 25.2.2003 passed by the DRT, and the matter has to be remanded back to the DRT for further inquiry and fresh disposal in accordance with law and in the light of the observations contained in this order. Both the parties shall be allowed to lead oral and documentary evidence in support of their respective contentions. The learned Presiding Officer has also to consider and decide whether the delay in filing the application to set aside the ex parte final order, can be condoned or not.
13. Accordingly, the appeal is allowed setting aside the impugned order dated 25.2.2003 passed by the learned Presiding Officer of the DRT. The matter is remitted back to the DRT for further inquiry and fresh disposal in accordance with law and in the light of the observations contained in this order.
14. The learned Presiding Officer shall take the application to set aside the ex parte final order and the application to condone the delay in filing the above said application back to file, give opportunity to both sides to lead oral and documentary evidence, and decide these applications in accordance with law and in the light of the observations contained in this order.
15. For this purpose, the parties, through their Counsel, are directed to appear before the DRT on 9.2.2005 for taking further directions in this matter.
16. Copy of this order be furnished to both sides, and be also forwarded to the concerned DRT.