Debt Recovery Appellate Tribunal - Allahabad
State Bank Of India vs Sudha Atta Mills Pvt. Ltd. And Ors. on 18 January, 2006
Equivalent citations: I(2006)BC203
JUDGMENT
P.K. Deb, J. (Chairperson)
1. This appeal has been preferred against the order dated 29.9,2004 passed by the learned Presiding Officer, DRT, Jabalpur in Misc. Application No. 9/03, whereby and whereunder the application filed by respondents 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 Act) has been allowed by setting aside the ex pane judgment passed on 21.11.2002 in O.A. No. 145/02.
The brief facts of the case are as follows:
The appellant Bank had filed the above mentioned original application i.e. O.A. No. 145/02 before the DRT, Jabalpur in recovery of Rs. 18,82,854.57 against the applicants as far as non-payment of loan by the respondents is concerned. Notices in the O.A. were sent by registered post fixing the case on 1.10.2002 but notices were received back unserved with the postal peon's remark that the appellant Nos. 2 and 3 were on pilgrimage. Then on the plea of the appellant Bank that the respondents were evading the service of notice, order was passed for publication of notice in Dainik Bhaskar, Jabalpur Edition fixing 25.11.2002 as a next date of appearance. On publication the notices were accepted to be served and then the case proceeded ex pane and ultimately recovery certificate was ordered to be allowed. According to the respondents, they received copy of the ex parts judgment on 7.1.2003 and after due information being taken, they filed the restoration petition under Section 22(2)(g) of the Act for setting aside of the ex pane judgment. Their plea was that they never received any summons or notices, firstly they were outside their residence when the registered notices were sent and during the period of publication of notices, respondent No. 2 was under treatment at Bhopal for the period from 17.10.2002 to 25.10.2002 and his wife-appellant No. 3 was also with him and the publication of notice at Dainik Bhaskar, Jabalpur Edition had no circulation at Bhopal and as such the notices could never be served and hence the petition for restoration.
2. The respondents in this appeal have not appeared although notices have been served through Dasti service and excess period of limitation has been condoned by order dated 10.1.2006. The appeal had to be heard ex pane as none appeared for and on behalf of the respondents.
3. Mr. Rajesh Maindiretta, learned Counsel for the appellant has attacked the impugned order on the ground that there was proper service of notice through publication as provided under Order 5 Rule 20 of the C.P.C. and the learned Tribunal committed error in holding that publication was not proper. According to the learned Counsel, it was never brought to the notice of the appellant Bank that the respondents had gone away from their residence during the period as they have stated and that Dainik Bhaskar although published from Jabalpur has got circulation at Bhopal also.
4. At the very outset the maintainability of the appeal is to be decided. The restoration petition has been filed under Section 22(2)(g) of the DRT Act, which is para materia the same as Order 9 Rule 13 of the C.P.C. and it has been specifically mentioned under Section 22(2) of the Act that discharging of the functions of the Tribunal under the provisions of Section 22(2), the Tribunal shall be vested with all the powers as that of a Civil Court under the Code of Civil Procedure and the provision runs as follows:
22(2). The Tribunal and the appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1998 while trying a suit, in respect of the following matters....
(g). Setting aside any order of dismissal of any application for default or any order passed by it ex parte.
5. Thus from the provisions mentioned above, for adjudicating the matters under Section 22(2)(g), the Tribunal/Appellate Tribunal shall function as a Civil Court as per the provisions of Civil Procedure Code. It is also an admitted analogy of law that any appeal provided under law against any order or judgment is the extended form of the provisions under which the matter in issue had been decided. Under the Civil Procedure Code, orders which are appealable have been enumerated under Order 43 Rule 1 of the C.P.C. Regarding order passed under Order 9 Rule 13 of the C.P.C., the appeal is provided under Order 43 Rule 1 (d) wherein it has been specifically mentioned that the appeal is maintainable only when a petition filed under Order 9 Rule 13 of the C.P.C, is rejected. There is no provision of appeal where allowance of the Order 9 Rule 13, C.P.C. is recorded. Thus no appeal is maintainable against the allowance of the petition under Order 9 Rule 13, C.P.C. and in that way, Tribunal discharging the powers under Section 22(2) shall also be confined having powers vested as Civil Court under the C.P.C. In that way, the present appeal which has been filed against the allowance of the petition under Section 22(2)(g) of the Act cannot be held maintainable. However, it has been argued by the learned Counsel for the appellant that it has been now settled by different High Courts and the Apex Court that any order passed by the Tribunal under the Act is appealable under Section 20 of the Act, but any order as has been submitted cannot be equated with an order where there is specific bar for an appeal. Although that bar has not been provided under the Act itself, rather the Act nowhere provides appeal against interlocutory orders also, but the legal position remains that when the Tribunal shall exercise the power as a Civil Court in respect of specific provisions, then the appellate provisions are also to be adhered to and thus in my considered view, the present appeal is not maintainable.
6. When the maintainability of the appeal has been decided against the appellant, then there is no scope of this appellate Court to enter into the merits of the case. However, in this particular case, it might have been held that notice in substituted manner through publication cannot be accepted as service of notice, the same analogy cannot be a general one because of the provisions of the Order 5 Rule 20 of the C.P.C., which provides that substituted service may be through publication should be construed as a personal service.
7. In the result, without going into the merit, I hold that the present appeal is not maintainable as discussed above. However, it is made clear that the original application is of 2002 and as such the same should be disposed of on priority basis within a period ' of six months positively without giving any undue indulgence to adjournments.
8. In the result, the appeal is dismissed with the observations made above.