Debt Recovery Appellate Tribunal - Kolkata
Patwari Motors Stores And 6 Ors. vs Central Bank Of India And Ors. on 23 February, 2001
JUDGMENT
A.B. Mukherjee (Retd.), J. (Chairperson)
1. The appeal is directed against the judgment and order dated 16.6.1999 passed by the Presiding Officer, Debts Recovery Tribunal, Patna, in Case No. P.T. 652 of 1998.
2. The respondent Bank preferred a claim case against the present appellants. It is the allegation of the appellant that no notice was served on them at any point of time and the Bank has obtained an expane order after suppressing summons. Their move before the Tribunal to set aside the ex parts decree also proved ineffective when they resorted to an application under Article 227 before the Patna High Court when the writ petition was dismissed with the observation was that the appellant might proceed against the ex pane decree in the appropriate Forum. Thereafter, the present appellants filed this appeal together with an application for condonation of delay and also, for exemption to make the deposit in terms of Section 21 of the Act. Both the aforesaid applications were heard in presence of the respondent Bank and also disposed of in favour of the present appellants by condoning the delay and by directing the appellants to deposit a lesser amount in exercise of the power conferred by Section 21 proviso to the Act.
3. The appeal is being registered by the respondent Bank. Apart from taking the points of limitation of security deposit, it is their case that the appellants were aware of the claim case but avoided the Tribunal since there was no merit in resisting the claim.
4. The point for determination is whether the exparte order dated 16.6.1999 was passed in accordance with law.
5. The learned Advocate representing the appellant, raised several points in support of the merit of the appeal so far as it relates to the claim preferred by the Bank itself. I am not going to enter into the said discussion because the point at issue is whether the procedure taken by the Presiding Officer of the Debts Recovery Tribunal in the matter of hearing the claim case exparte was in accordance with law. In other words, it will have to be seen whether notice were actually served on the present appellants and whether they were aware of the pendency of the claim case and did not appear intentionally.
6. Reference was made to a number of decisions by the learned Advocates of both the sides in course of the arguments not all of which have any bearing in the present appeal. However, the decision reported in 1999 Bankman 188, is to the point since it relates to the procedure to be followed while dealing with a prayer to set aside exparte decree. It is stated that the Courts must give proper attention to the point of service of summons and has to be satisfied whether service of summons were effected on the other side. In the case reported in AIR 1968 Bombay 387, it is stated that in the event of denial on oath by the defendant that they did not receive any summons, summons by Registered Post with the endorsement refused is not sufficient to counteract the statement on oath in the absence of postman being examined to prove such refusal.
7. I had occasion to deal with the matter extensively while dealing with the limitation matter prior to the admission of the appeal. It appears from the lower Court record that on 8.10.1998, the claim case was admitted and notice was directed to be issued by Registered Post with A/D fixing 10.12.1998 for service return. On the said date, even though, there was no return of service, it was presumed that there was good service only because of the expiry of 30 days. On the next date namely, 2.2.1999 the Bank produced paper cuttings of publication of notice in daily newspapers. Strangely enough at no point of time, the Tribunal directed the Bank to take steps for publication in the newspaper. It further appears in the said order that the notice sent by Registered Post was received by the Tribunal, but remarks were not clear to them. A scrutiny on the envelops which came back unserved before the Tribunal, on the other hand clearly bears the remarks "(refused)" written on the same. That is not all. As per record registration was done on 10.10.1998 whereas the endorsement on the paper on which postal receipts have been posted bears the note of the post office; as if, it was posted on 1st December and refusal remark was dated 15.12.1998. It may be pointed out that the Tribunal treated as pointed but that the Tribunal treated the service as good on 10.12.1998 when as a matter of fact, the refusal remarks is dated 15.12.1998. Besides, no attempt was made to examine the postman who actually tendered the envelops for service.
8. The subsequent conduct of the present appellants are also an important factor since they took all steps necessary for getting the ex pane order vacated. It is their contention that they came to know the ex pane order on 23.8.1998 and applied for certified copy on the next day. They got the copy of 6.9.1999 and filed a Misc. Case before the Debts Recovery Tribunal on 17.9.1999 which was disposed of on 4/5th April, 2000. The appellant preferred a writ application before the Ranchi Bench on 12.5.2000 which was dismissed on 10.7.2000 with the observation that they may prefer appeal before the appropriate Forum. Immediately thereafter, they filed the memo of appeal on 26.7.2000. The subsequent conduct of the appellants also reveals that there is considerable merit behind their contention in the appeal that they were not aware of the claim case pending before the Debts Recovery Tribunal, Patna.
9. The above narration is sufficient to show that the Presiding Officer of the Debts Recovery Tribunal, Patna was not vigilant enough in the matter of hearing, the matter of ex pane without satisfying himself that there was proper service of notice on the other side. As such, the ex pane decree and also the subsequent steps taken in the matter of issuance and execution of certificate cannot stand.
Accordingly, it is:
ORDERED That the appeal be allowed on Contest. Judgment and order dated 16.6.1999 passed by the Debts Recovery Tribunal, Patna, stand set aside. Consequently, the certificate drawn on the basis of such ex pane order and all subsequent steps in the matter of execution of the certificate also stand set aside. The claim case goes back to the P.O., Debts Recovery Tribunal, Patra who shall give reasonable opportunity to the present appellant to file written objection and thereafter shall proceed in accordance with law, in the matter of taking evidence afresh and give reasonable opportunity to the opposite party in contesting the claim. Every endeavour need be made by the Presiding Officer of the Debts Recovery Tribunal to dispose of the claim case within a period of four months from the date when the new Presiding Officer joins in the Debts Recovery Tribunal at Patna.
Let copies of the judgment together with the lower Court record be sent to the Debts Recovery Tribunal, Patna, immediately. Copies be also delivered to the learned Advocates representing the appellant and the respondents free of cost.