Debt Recovery Appellate Tribunal - Delhi
Rajesh Kumar Arora And Anr. vs State Bank Of Hyderabad And Ors. on 22 October, 2003
Equivalent citations: III(2004)BC169
ORDER
K.S. Kumaran, J. (Chairperson)
1. 1st respondent-Bank Slate Bank of Hyderabad (hereinafter referred to as 'the respondent-Bank") filed Original Application 106/2001 against appellants (who are defendants 2 and 1 respectively in the Original Application; and hereinafter referred to as "the appellants-defendants") and three other defendants before the Debts Recovery Tribunal-I, Delhi (hereinafter referred to as "the DRT") for the recovery of Rs. 68,59,095/- with interest and costs.
2. The learned Presiding Officer of the DRT passed the final order dated 12.4.2002 against the appellant-defendants.
3. The appellant-defendants filed Miscellaneous Application 138/2002 on 23.7.2002 to set aside the said final order urging that there was no service on summons on them, that neither the orders setting them ex parte nor the final order was served upon them and, therefore, they have been denied an opportunity to put for their case. The appellant-defendants also urged that Mr. Manoj Munde, the field officer of the respondent-Bank visited the appellant-2nd defendant on 10.7.2002 and informed him of the final order, on which the appellant-2nd defendant moved an application for inspection of the records on 12.7.2002, inspected the records on 15.7.2002 and found that there was nothing in the records to show that there was any service of summons.
4. The learned Presiding Officer of the DRT dismissed the said application observing that records show that the Commissioner appointed by the DRT visited the premises of 1st defendant on 25.4.2001, met the appellant-2nd defendant, prepared the inventory in his presence and even got the signature of appellant-2nd defendant in the report. The learned Presiding Officer also observed that the Commissioner had served the copies of the orders of the DRT dated 3.4.2001 and 19.4.2001 and the appellant-2nd defendant acknowledged the receipt of the same by appending his signature on the letter dated 25.4.2001 of the Commissioner. Therefore, the learned Presiding Officer held that the appellant-2nd defendant, who is the Director of the appellant-1st defendant (Company), was aware of the orders dated 3.4.2001 and 19.4.2001 passed by the DRT, but still did not take efforts to participate in the proceedings. The learned Presiding Officer has also observed that ultimately he was also served by the publication in the newspaper "Statesman" dated 23.10.2001 and that the records also show that the copies of the newspaper were also sent to the appellant-defendants 1 and 2 under certificate of posting.
5. The learned Presiding Officer held that the 2nd defendant was not only aware of the pendency of the O.A. before the Tribunal but also of the date fixed and was rightly proceeded ex parte which was followed by the ex parte final order dated 14.2.2002. Holding so, the learned Presiding Officer of the DRT dismissed the application by the impugned order dated 25.7.2002.
6. Aggrieved, the appellant-defendants have preferred this appeal. The respondent-Bank has filed a suitable reply opposing this appeal.
7. I have heard the Counsel for both the sides and perused the records.
8. The appellant-defendants have placed on record, the copies of the day-to-day orders passed by the DRT. The order dated 3.4.2001 shows that a show-cause notice was ordered to be issued to the defendants by registered post and under certificate of posting, with a direction to file the written statement within 30 days from the date of the receipt of the notices. The learned Presiding Officer also passed an ad interim injunction against the 4th defendant and also appointed a Commissioner to visit the 1st defendant (Company) and to take an inventory of all the movables and immovables, with a direction to file his report within four weeks.
9. The order dated 19.4.2001 passed by the DRT shows that the time for execution of the warrant of Commission was extended by two weeks, and the case was ordered to be listed before the Registrar on 25.5.2001, the date already fixed.
10. In the meanwhile, the learned Commissioner had visited the appellant-1st defendant (Company) on 25.4.2001, as is seen from the copy of the Commissioner's report filed with this appeal. A perusal of the report shows that the appellant-2nd defendant was present and he had represented to the Commissioner that he is the Director of the 1st defendant company, and that he was also identified by the officials of the respondent-Bank. The learned Commissioner has also reported that he served copies of the orders of the DRT dated 3.4.2001 and 19.4.2001 along with the covering letter dated 25.4.2001 on the appellant-2nd defendant, which were received and acknowledged by the appellant-2nd defendant. The report of the learned Commissioner is dated 10.5.2001. The copy of the covering letter of the learned Commissioner with which he had enclosed the copies of the orders dated 3.4.2001 and 19.4.2001 has also been placed on record of this appeal, a perusal of which shows that the appellant-2nd defendant has signed the same on 25.4.2001.
11. On 25.5.2001, the matter came up before the Registrar of the DRT, and the order passed by the Registrar on that date shows that the Counsel for respondent-Bank filed the affidavit regarding service, along with original postal receipts and the returned envelopes which were taken on record. The said order also shows that the Counsel for the respondent-Bank stated that the 1st defendant (Company) has been reported as "closed" while the notice intended for the appellant-2nd defendant was received back with the postal remark "no such person".
12. The order dated 25.5.2001 passed by the Registrar shows that the respondent-Bank was directed to provide fresh complete and correct addresses of all the defendants except the 1st defendant, within a week with a direction to the Registry to issue fresh notice by registered post with acknowledgement due and under certificate of posting as well as dasti. The matter was ordered to be put up for 27.7.2001. The order dated 27.7.2001 shows that the matter was adjourned to 17.9.2001 as the Advocates were not attending the Court.
13. On 17.9.2001, the learned Counsel for the respondent-Bank stated before the Registrar that they were not having any new addresses of defendants 1, 2 and 5, requested to serve them by dasti as well as by substituted service, and that the Registrar directed issue of notices to defendants 1, 2 and 5 by substituted service i.e. publication in the newspaper "Statesman" and fixed the date of hearing as 6.11.2001.
14. From 6.11.2001, the O.A. was adjourned to 22.11.2001 for production of the copy of the newspaper, but on 22.11.2001, the matter was adjourned to 23.1.2002, as the Registrar was on leave.
15. On 23.1.2002, the learned Counsel for the respondent-Bank had produced the newspaper publication dated 23.10.2001. The defendants 1, 2 and 5 were absent. The Assistant Registrar observed that the defendants 3 and 4 have already been served, and ordered the matter to be listed before the learned Presiding Officer for appropriate orders on 14.2.2002.
16. On 14.2.2002, the learned Presiding Officer of the DRT held that the defendants 1, 2 and 5 have been served by publication in the newspaper, while defendants 3 and 4 have been served through registered post, observed that none had appeared and, therefore, set the defendants ex parte. He directed the case to be fixed for 12.4.2002 for arguments with a direction to file affidavit by way of evidence. Ultimately on 12.4.2002, the learned Presiding Officer of the DRT passed the final order.
17. The copies of the above said day-to-day orders as well final orders have been placed on the record of this Appeal.
18. By pointing out the above said details, the learned Counsel for the appellant-defendants contends that it is clear that there has been no service of summons on the appellant-defendants, but the ex parte final order has been passed on the basis of the publication of the notices/summons regarding the O.A. in the newspaper only. The learned Counsel for the appellant-defendants also contends that in spite of the fact that the Registrar had ordered on 25.5.2001, that the respondent-Bank should provide fresh correct and complete addresses and directed Registry to issue fresh notices by registered post with acknowledgement due, under certificate of posting and dasti, that was not carried out by the respondent-Bank. He contends that on 17.9.2001, the Counsel for the respondent-Bank had only made a request for serving the appellant-defendants by the mode of substituted service, and the Registrar also had ordered notice by publication in the newspaper as well as dasti. The learned Counsel for the respondent-Bank contends that there were no grounds and the Registrar has also not recorded his satisfaction about the existence of the grounds for ordering service by the mode of publication in the newspaper, and that no application, as the one contemplated under Order V, Rule 20 of the C.P.C was also filed by the respondent-Bank. He, therefore, contends that the publication in the newspaper cannot be taken to be clue service. He also contends that there is nothing to show that notices by the dasti mode were also taken. Therefore, the learned Counsel for the appellant-defendants contends that the ex parte final order should have been set aside, since the appellant-defendants were not served with notices/summons.
19. But the learned Counsel for the respondent-Bank, on the other hand points out that on 17.9.2001, it was brought to the notice of the Registrar of the DRT that the respondent-Bank was having no new addresses of the appellant-defendants 1 and 2 and, therefore, the request was made to serve them by dasti, and by the mode of substituted service. The learned Counsel for the respondent-Bank points out that the address of appellant-defendants 1 and 2 mentioned in the appeal is the same as that mentioned in the Original Application, and that even the appellant-defendants do not say that their addresses given are incorrect or that they have changed their addresses. He further contends that in spite of this, it is evident from the order dated 25.5.2001, that it was brought to the notice of the Registrar-DRT that the notice sent to the 1st defendant-company was returned as "closed" while that, for 2nd defendant had been received back with the remark "no such person". Therefore, the learned Counsel for the respondent-Bank contends that it is clear that the notices/summons have been deliberately avoided. He also points out that there was no other address available with the respondent-Bank and, therefore, contends that the direction to serve the appellant-defendants by the mode of publication in the newspaper cannot be found fault with.
20. But, we find that the Registrar has not recorded in his order dated 17.9.2001 specifically the reasons for directing the issue of the notices/summons by the mode of publication in the newspaper. He has also not stated that he was satisfied that the appellant-defendants could not be served by ordinary process.
21. But, the learned Counsel for the respondent-Bank points out that the appellant-defendants were not only aware of the proceedings in the Original Application, but even of the date and, therefore, the appellant-defendants cannot have any grievance on the ground that there was no reason for ordering service of notice by publication in the newspaper. In this regard, he relies upon the report of the Commissioner and also the covering letter issued by the Commissioner enclosing therewith the copies of the orders passed by the DRT dated 3.4.2001 and 19.4.2001. He contends that since the appellant-2nd defendant, who is the Director of the appellant-1st defendant-company, has acknowledged the same by appending his signature, it is clear that the appellant-defendants were aware of the proceedings in the O.A. and also of the dale of hearing, and, therefore, had no reason for not appearing before the DRT.
22. I agree with the learned Counsel for the respondent-Bank in this regard. The learned Commissioner, who was appointed by the DRT to take inventory, had gone to the premises of the 1st defendant-company on 25.4.2001. On that date, the appellant-2nd defendant was present and was served with the copies of the orders dated 3.4.2001 and 19.4.2001 passed by the DRT. These orders were given to him by the Commissioner along with his covering letter dated 25.4.2001. The appellant-2nd defendant has signed in the copy of the covering letter in token of having received the said orders. The order dated 19.4.2001 shows the date of the hearing as 25.5.2001. Therefore, once the appellant-2nd defendant, who is the Director of the 1st defendant-company, has received these orders, he must have come to know of the proceedings in the O.A. and also the date of the hearing. The learned Commissioner had even inspected the 1st defendant-company and prepared the inventory in the presence of the appellant-2nd defendant. In spite of all these, the appellant-defendants cannot say that they were not aware of the proceedings in the O.A. or the date of hearing or that they came to know only on 11.7.2002 about the proceedings from Mr. Manoj Munde. In fact, the appellant-defendants have stated in their application to set aside the ex parte final order, that they came to know about the final order from Mr. Manoj Munde on 10.7.2002, and that on inspection of the records, they found that there was nothing to show that there was any service of summons. Therefore, it is not as if they were entirely not aware of the proceedings or the date of hearing.
23. This apart, the impugned order dated 25.7.2002 passed by the learned Presiding Officer also reveals that the records of the O.A. showed that the copies of the newspaper publication were sent to the defendants 1 and 2 under certificate of posting also. In these circumstances, I am of the view that the appellant-defendants were aware of the O.A, and also the date of hearing.
24. But, the learned Counsel for the appellant-defendants contends that mere knowledge of the pendency of the proceedings is not sufficient, and it must be shown that the appellant-defendants were aware of the date of hearing also. In support of this contention, the learned Counsel for the appellant-defendants relies upon the decision of the Hon'ble Supreme Court in Sushil Kumar Sabharwal v. Gurpreet Singh, III (2002) SLT 510=(2002) 5 Supreme Court Cases 377.
25. In my view, this judgment will be of no help to the appellant-defendants, inasmuch as it is clear that the appellant-defendants knew the date of hearing in the O.A. also. This apart, the decision of the Hon'ble Supreme Court related to a case where, according to the process server, he went to serve the summons, but it was refused and so he returned the summons with endorsement that the same was "refused". The Court, noticing the absence of the defendant passed ex parte decree. During the course of his evidence, the process server had stated that the defendant refused to accept the summons tendered along with copy of the plaint, and also about his endorsement made on the back of the summons. The process server also stated that if the person refuses to accept the summons, the copy of the summons and the copy of the application are also pasted on the wall. This statement of the process server was found contrary to the endorsement made on the summons that the copy of the plaint along with summons was returned to the Court. In these circumstances, that the Hon'ble Supreme Court, finding several infirmities and lapses on the part of the process server, held that the fact that the defendants have admitted in some other suit about this proceeding in question, will not be sufficient and it is necessary to have knowledge of the date of the hearing.
26. But, in the case on our hands, it is clear from the copy of the order dated 3.4.2001 passed by the DRT, directing the issue of show-cause notice to the defendants, and the copy of the order dated 19.4.2001 extending the time for the report of the Commissioner and mentioning about the date of hearing as 25.5.2001, that the appellant-defendants must have been aware not only of the O.A., but also of the date of hearing. This apart, the learned Commissioner had also visited the 1st defendant-company and prepared the inventory, which has also been signed by the appellant-2nd defendant, as is seen from the copy of the inventory filed with this appeal.
27. But in spite of all this, the appellant-defendants want to make it appear as if they came to know about the proceedings in the O.A. only on 11.7.2002, which cannot be accepted in the circumstances pointed out. In the application to set aside the ex parte final order the appellant-defendants have suppressed the fact that the appellant-2nd defendant was present when the learned Commissioner came and had taken inventory, that he had even signed the list taken by the learned Commissioner, and also the fact that the learned Commissioner served the appellant-2nd defendant with the copies of the orders dated 3.4.2001 and 19.4.2001.
28. It is evident that, in spite of having knowledge about the O.A. and the date of hearing, the appellant-defendants did not choose to appear before the DRT. Therefore, in these circumstances, the facts that no application for ordering substituted service was filed by the respondent-Bank, that the Registrar had not recorded his satisfaction specifically that the appellant-defendants cannot be served by any other mode or were avoiding service, will not be of help to the appellant-defendants.
29. In these circumstances pointed above, I find that there are no grounds for setting aside the ex parte final order against the appellant-defendants, and the application filed by the applicant-defendants, has been rightly dismissed by the DRT.
30. Accordingly, the appeal fails and is dismissed. Copy of this order be furnished to the appellant-defendants and the respondents.