Bangalore District Court
M/S.Peninsula Milling Co. Ltd vs Karnataka State Financial on 11 March, 2016
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI. BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 11th day of March 2016.
Misc.No.298/2014
PETITIONER/S : 1. M/s.Peninsula Milling Co. Ltd.,
Rep. by its Managing Director
2. Sri.Sanjay Bansal
Aged about 49 years
S/o.Late D.R.Bansal
3. Sri Anjay Bansal
Aged about 47 years
S/o.Late D.R.Bansal
4. Smt. Anuradha Bansal
Aged about 46 years
W/o.Sanjay Bansal
All the petitioners R/a.S-05,
Golden Enclave
Old Airport Road
Kodihalli,
Bangalore.
(By Sri. M.I.Arun, Advocate)
V/s.
RESPONDENT/S : 1. Karnataka State Financial
Corporation, Head Office
No.1/1, Thimmaiah Road,
Bangalore-560 052.
Represented by its General
Manager (H.P. & F.S.)
2 Misc.No.298/2014
2. The Debenture Trustee
Karnataka State Financial
Corporation, Head Office at
No.1/1, Thimmaiah Road,
Bangalore-560 052. Rep. by its
Manager (DTC)
(By Sri.S.Y., Advocate)
ORDER
The petitioners have filed this petition against respondent No.1 and 2 under Order IX Rule 13 of C.P.C. to set aside the ex-parte judgment and decree dt.17.8.09 passed by the XLI Addl. City Civil Judge (CCH-42), Bangalore in Misc. No.549/05, by restoring the same to its file and to provide an opportunity to the petitioners to contest the same.
2. The brief facts of the case of the petitioners is that the 1st petitioner is a company registered under the provisions of the Companies Act and that the petitioner No.2 to 4 were the Directors of the said company. The 1st petitioner was a small scale industry engaged in manufacture of Wheat Products at its factory situated at No.130/2B Bommanahalli Village, Devanahalli Road, off. Madras Road, bangalroe-49 with registered office at No.37, Basappa Road, Shanthinagar, Bangalore-27. The first petitioner has borrowed Rs.80 Lakhs from the 1st respondent and entered into a loan agreement 3 Misc.No.298/2014 dt.7.10.96 where under the first petitioner agreed to repay the aforesaid loan amount in 24 quarterly installments i.e. within 72 months and the first of the installment to be paid on 10 day of 5th quarter from the date of first of the installment to be paid on 10th day of 5th quarter from the date of first release/disbursement of the said principal sum and had also mortgaged/hypothecated the factory building situated at Survey No.130, new No.130/2B, Bommanahalli Village, Bidarahalli Hobli, Hoskote Taluk, Bangalore District totally measuring 4 acres by deposit of title deeds, as security for the afore said loan. The 1st petitioner had also sought for further financial assistance from the 1st respondent to a tune of Rs.130 lakhs and that the 1st respondent agreed to advance the aforesaid amount in the form of subscription to Rs.130 Lakhs nonconvertible privately placed debentures of Rs.100/- each with a right to the respondent to redeem the debentures within five years from the date of allotment. The 1st petitioner had borrowed loan from State Bank of India and that moment the 1st respondent leased 130 lakhs to the 1st petitioner which was deposited in the current account of the 1st petitioner in State Bank of India, the State Bank of India adjusted Rs.85 4 Misc.No.298/2014 Lakhs from the aforesaid amount without informing the 1st respondent. As a result of which the 1st petitioner was constrained to close their manufacturing unit with effect from September 1999, and that on 29.11.1999 the 1st petitioner was declared as sick unit by Directorate of Industries and Commerce (DIC). The 1st petitioner had also borrowed loan from KSSIDC and State Bank of India and that the first respondent agreed to share pari passu charge of the aforesaid property with KSIDC and State Bank of India, and in this regard entered into pari passu agreement dt.21.7.2000. The 1st petitioner entered into several arrangement with banks and other financial institutions for revival of the industry and that ICICI bank came forward to lend an amount of Rs.250 lakhs vide their sanction letter dt.27.2.2002 and that State bank of India also came forward to give additional funds to the 1st petitioner for reviving the industry. The first petitioner with an intention to clear the loans borrowed from the 1st respondent and KSIDC approached them for one time settlement, by raising loans from ICICI Bank and working capital from State Bank of India and that the 1st respondent vide their letter dt.12.1.2004 informed the 1st petitioner that the 1st petitioner 5 Misc.No.298/2014 should pay a sum of Rs.208 lakhs as one time settlement with respect to term loan of Rs.80 lakhs and NCD of Rs.130 lakhs. Likewise KSIDC also vide their letter dt.31.1.2005 agreed to accept a sum of Rs.134.61 lakhs as one time settlement. The 1st petitioner has paid a sum of Rs.10.2 lakhs as earnest towards one time settlement and that the 1st respondent has accepted the aforesaid amount without demur. While the 1st petitioner was in the process of arranging funds for clearing the loan amounts to the 1st respondent in terms of the OTS given by the 1st respondent, the first respondent vide their letter dt.10.2.2005 informed the first petitioner that they have decided to take over the assets of the company under Section 29 of SFC's Act and took over the assets of the 1st petitioner on 22.2.2005. The 1st petitioner paid a further sum of Rs.10 lakhs for release of the unit and that the 1st respondent released the unit seized by them. Thereafter the 1st respondent seized the entire assets of the 1st petitioner including the lands, buildings and other assets and have drawn a mahazar dt.8.6.2005 in this regard and sold the same for Rs.577 lakhs in the year 2006. In this regard the 1st petitioner wrote a letter dt.1.5.2006 to the 1st respondent to adjust the sale proceeds in 6 Misc.No.298/2014 terms of OTS agreement dt.12.1.2004 and requested the first respondent to refund the excess amount, but however the 1st respondent despite receipt of the said letter neither replied to the said letter nor refunded the excess amount after adjusting the amount due under the OTS settlement. After repeated follow-ups the first respondent vide their letter dt.8.2.08 informed the 2nd petitioner that they have received a sum of Rs.577 lakhs by way of sale of assets of 1st petitioner and that the sale proceeds of Rs.577 lakhs has been shared between KSFC, KSIDC and SBI but have not disclosed in what ratio they have shared the amount. Thereafter to the shock and surprise of the petitioners on 6.2.14 the officials of the 1st petitioner along with court amin came to the house of 4th petitioner situated at S-05 Golden Enclave, Old Airport road Bangalore and measured the afore said property and on enquiry by the 4th respondent she was informed by the court amin that the 1st respondent has filed petition under the provisions of the State Financial Corporation Act for recovery of dues from the petitioner and has obtained ex-parte judgment and decree dt.17.8.09 against the petitioners and two others in Misc.549/05 and that the respondent has filed 7 Misc.No.298/2014 Execution No.1031/10 for execution of the said decree where under the court has ordered for attachment of the house property belonging to the 4th petitioner. Immediately thereafter the petitioners approached their Advocate and applied for certified copy of the judgment and decree on 3.3.14 and obtained the certified copies on 6.3.14. On perusal of the order sheet and the petition filed by the respondents in Misc.549/05 it is evident that the respondents has given the office address of the 1st petitioner for service of notice. On seizure of the assets by the 1st respondent during 2005, the 1st petitioner has closed the aforesaid office which was a rented premises, since the entire assets including plant and machinery was seized by the 1st respondent under Section 29 of Securitization Act. Though the respondents were aware of the residential address of the petitioners No.2 and 3, the respondent has deliberately not furnished the same to this court in the aforesaid Misc. No.549/05 for service of notice and on the other hand has taken paper publication and has got the petitioners placed ex-parte. The petitioners were under the impression that since the respondent had sold the assets of the 1st petitioner and had realized a sum of Rs.577/- the 8 Misc.No.298/2014 petitioners were not due any amounts to the respondent and that the petitioners were not aware of the Misc. No.549/05 till 6.2.14. The petitioner No.4 was also not served with notice in the afore said Misc. No.549/2005 and that the petitioner No.4 was also not aware of the aforesaid case. It is also relevant to state that the respondent has also filed the aforesaid Misc. No.549/2005 against Sri.Y.D.Pandey and Smt.Pushpa Bansal who were the respondents No.4 and 6 respectively. Sri.Y.D.Pandey has died on 29.11.03 and Smt.Pushpa Bansal died on 14.5.05 and that the respondent have obtained Ex- parte judgment and decree dt.17.8.09 in Misc. No.549/05 against dead persons. Immediately thereafter the petitioners had to procure the necessary documents in this regard which is more than 15 years old, and thereafter gave instructions to their counsel to file petition for setting aside the aforesaid ex- parte judgment and decree and that there is few days delay in filing the petition as the petitioners had to trace the records and the petitioners advocate needed time to prepare the petition. The respondents have obtained exparte judgment and decree against the petitioners by deliberately giving office address of the first petitioner which was closed in 2005 itself 9 Misc.No.298/2014 and not furnishing the residential address of the petitioners no.2 and 3 herein though they were fully aware of the same and also by suppressing the material fact of having seized the assets of the 1st petitioner and realizing a sum of Rs.577 lakhs form the said sale. The respondents during the pendency of the afore said Misc. No.549/09 has got the petition amended without service of notice to the petitioners and has obtained the ex-parte judgment and decree dt.17.8.09 against the petitioneRs. The respondents have obtained ex-parte judgment and decree Misc. No.549/05 for amounts which is barred by limitation by suppressing material facts. With these grounds the petitioners have requested to allow the petition.
3. Along with the petition, the petitioners filed the I.A. U/s.5 of Limitation Act to condone the delay of 10 days in filing the petition.
4. In the annexed affidavit to the application he has reiterated the averments made in the petition as stated above. So, he prays to allow the application.
5. After service of notice to this petition, the respondents have appeared before the Court through their counsel and they have filed common objections to the main 10 Misc.No.298/2014 petition and to the I.A. for condonation of delay contending that the petition is not maintainable either in law or on given facts of the case and same is liable to be dismissed in limine with exemplary costs. The respondent had filed petition before this Court in Misc. No.549/05 under the provisions of State Financial Corporation Act 1951 and it is not a suit for recovery of money as urged by the petitioner and the said petition came to be allowed by this Court as per Sec.32(7) of SFC Act on 17./8.09 and any party aggrieved by the said order has to approach the Hon'ble High Court as per Section 32(9) of SFC Act and not by filing application before this Court U/O.IX R 13 of Code of Civil Procedure, as such the petition is liable to be dismissed in limine. The address of the petitioners herein furnished by the respondent in Misc. No.549/2005 was their last known address and since the court notice and RPAD notice were unserved, substitute service through paper publication has been effected and same is sufficient service of notice. Respondent has mis lead this Court and has fraudulently procured the decree from this Court. The provisions of order V Rule 20 of Code of Civil Procedure have been complied to by the respondents. Since 11 Misc.No.298/2014 the notice of the petition was not served upon the petitioners this respondent had filed application for substituted service and this court after having satisfied has permitted this respondent to take substitute service of the petition upon these petitioners and same was duly published and after giving sufficient opportunity to the petitioners to appear and as they failed to appear before this court this court has rightly placed the petitioners as Ex-parte and has proceeded further to enquire into the matter and no fault could be attributed either to the respondent or to the proceedings of this Court and as such the claim of the petitioners does not hold any water. The notice of the petition was duly served upon the petitioners and this court after having satisfied with the service of the notice has proceeded further to pass orders and as such the claim of the petitioners is denied to be true. It is not the case of the petitioners that the paper in which the notice was published is not a widely circulated news paper in the locality where the petitioners reside and this being the case, even if the contention of the petitioners is admitted for arguments sake, publication of the notice in news paper will be a futile exercise and meaningless. As such the petitioners 12 Misc.No.298/2014 have not made out any grounds for allowing the petition and as such the petition is liable to be dismissed with exemplary costs. The contention about adjustment of Rs.85 Lakhs by SBI from the loan amount of Rs.130 Lakhs released by the respondents and consequential closure of the unit of the 1st petitioner etc., is immaterial and irrelevant for the adjudication of this petition and same is also not within the knowledge of the respondent. The claim of the petitioners that they tried to get funds by raising loans from ICICI bank and SBI and an amount of Rs.2.50 lakhs was sanctioned by ICICI Bank on 27.2.2002 etc., is incomplete statement. Infact the same did not materialize thereafter and as such the petitioners are forbidden from making irrelevant statements. The 1st respondent extended OTS benefit to the 1st petitioner and to avail the same, the petitioners were required to pay the same within the time stipulated therein and since the petitioners failed to avail the benefit of the OTS extended, the same was cancelled and same was also intimated to the borrower and after cancellation of the OTS due to non compliance of the same, the respondent has initiated actions for recovery of its dues in accordance with law. The word 13 Misc.No.298/2014 demur mentioned in para No.13 is of non avail since the earnest amount has to be paid by the unit for processing the request for OTS and after payment of the same by the 1st petitioner, the 1st respondent has considered the request for OTS and accordingly, sanctioned the same. And as stated supra it was cancelled due to non compliance of the terms of the settlement form the borrowers end. Since, the property was sold in recovery proceedings, in accordance with law by giving paper publication and the sale was conducted in a transparent way and also after issuing notices/letters to the petitioner for bringing better offers etc., and the amount recovered from the sale of the assets was distributed between the consortium of the creditors, i.e. KSFC, KSIIDC and SBI as there was a pari passu agreement and as the amount was recovered in terms of auction sale of the assets, the recovered amount cannot be adjusted towards OTS scheme as it was already cancelled owing to non-adherence of the conditions stipulated. The sale amount was shared between KSFC, KSIIDC and SBI at Rs.326.43 Lakhs, Rs.182.60 lakhs and Rs.67.97 lakhs respectively. The Board of the Respondent had considered the request of petitioner to settle the account 14 Misc.No.298/2014 under OTS vide Board meeting dt.29.12.2003 for Rs.208 lakhs and the petitioner was to pay an amount of Rs.159.20 Lakhs within 60 days and Rs.48.80 lakhs in 24 monthly EMI's as was communicated vide letter dt.12.1.04. It is a matter of record that the petitioners failed to pay the amount as per the sanctioned scheme. As such the petitioners failed to pay the amount as per the sanctioned scheme. As such, the claim of the petitioners that the sale proceeds should have to be adjusted towards settlement amount is incorrect and same doesn't hold any water. The petitioners were not aware of the petition filed by the respondent and also about the paper publication of the notices issued by this court in the said petition. The respondent had taken the assets of the borrower company u/s.29 of the SFC Act on 22.2.2005 after giving notice to the petitioner on 10.2.05. The sale negotiation meeting was held on 26.4.06 and the assets were sold for Rs.577.00 lakhs. It is false to allege that material facts were suppressed by the respondent. The grounds/reasons urged by the petitioners alleging that they were not served with the notices issued by this Court and that they were unaware of the petition filed and allowed by this Court is false and 15 Misc.No.298/2014 baseless. The petition is filed after a delay of about 5 years and application is filed to condone the delay of only 10 days which is not at all maintainable and same is liable to be dismissed on this ground alone. The grounds/contentions urged in the application for condonation of delay are not sufficient for believing the claim of the petitioners and same is beyond imagination and is also liable to be dismissed in limine. All other grounds/urged by the petitioners which are specifically replied to by the respondent are hereby specifically denied and the petitioners are called upon to prove the same. Since the main petition itself is not maintainable, application filed U/s.5 of the Limitation Act is also not maintainable and same is also liable to be dismissed in limine. The petitioner in order to stall the execution proceedings has come up with this type of false and frivolous petition to defeat the claim of the respondent corporation. The grounds urged by the petitioners are not sufficient enough to condone the exorbitant delay of more than 4 years 7 months and as such if the application is allowed, irreparable loss and injury will be caused to respondent which cannot be compensated in any manner. It is settled law that law will not 16 Misc.No.298/2014 come to the rescue of the person who has slept over his rights, hence noting the exorbitant and inordinate delay, this court may be pleased to reject the application for condonation of delay accompanying the petition for setting aside the ex- parte judgment. The present dues of the 1st petitioner is Rs.1813.56 laksh towards NCD and Rs.1356.63 towards Term Loan. Any other ground/s will be urged during the course of advancing arguments for which the permission of this court is sought. With all these grounds, the respondents have requested to dismiss the petition.
6. Heard the arguments and perused the records of the case.
7. The petitioner No.2 examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.5.
8. The points that arises for my consideration are as under:-
1. Whether the petitioners made out a case to condone the delay in filing this petition?
2. Whether the petitioners made out a case to restore the miscellaneous No.549/2005 on its original stage?17 Misc.No.298/2014
3. Whether the petitioners are entitle for the relief sought for?
4. What Order?
9. My answers to the above points are as under:-
Point No.1:- Do not arise for consideration;
Point No.2:- In the affirmative;
Point No.3:- In the affirmative;
Point No.4:- As per final order, for the following:-
REASONS
10. POINT No.1 and 2:- Since these points are interconnected to each other hence to avoid repetition of facts and evidence they are taken up together for discussion.
11. It is pertinent to note that in Misc. No.549/2005 there were six respondents. It is stated in this petition that the respondent No.4 - Y.D.Pandey and respondent No.6 - Pushpa Bansal died on 29.11.2013 and 14.5.2005 respectively. Hence, now this petition is filed by the respondent No.1 to 3 and 4 who are the petitioner No.1 to 4 herein.
12. The learned Advocate appearing for the respondents vehemently argued that to set aside the ex-parte judgment and decree in Misc. No.549/2005 the petitioners have to 18 Misc.No.298/2014 approach the Hon'ble High Court of Karnataka as per Section 32(9) of the Karnataka Financial Corporations Act 1951. Hence, this petition is not maintainable before this court. The learned Advocate appearing for the petitioner argued that the petitioner can file petition for restoration U/O.9 Rule 13 of CPC before this court or he can prefer the appeal before the Hon'ble High Court of Karnataka. Hence, the petition is maintainable before this court.
13. I do not find merits in the arguments of learned Advocate appearing for the respondents. It is quite natural that when a court has got jurisdiction to pass orders in a miscellaneous case filed U/S.31(1)(aa) and Section 32 of SFC Act, then the same court has got jurisdiction to consider the petition to set aside the ex-parte order. In this regard, I would like to rely on the ruling reported in AIR 1984 All 23 (Rakesh Sugar Tail Factory, Mohammadabad V/s. U.P. Finacial Corporation, Kanpur) wherein their lordships held as under:-
"The District Court exercising jurisdiction under this Section has certain inherent powers by virtue of the relevant provisions of Code of Civil Procedure to meet the ends of justice or to prevent abuse of the 19 Misc.No.298/2014 process of the Court. In exercise of such inherent powers, the Court can entertain an application for setting aside of an ex-parte order, provided that it has satisfied as to existence of sufficient cause of non-
appearance on the date fixed by the
applicants".
14. So, as held by their lordships under the KSFC Act this court has got jurisdiction to try the petition which was filed for restoration. When the order passed in the petition filed under Section 31(1)(aa) and 32 of the SFC Act by placing the respondent ex-parte then the petitioner he has got two options. The first one is the petitioner can file petition for restoration under Order 9 Rule 13 of C.P.C. before this court and the second option is he can file appeal before the Hon'ble High Court of Karnataka. The Section 32 (9) is with respect to the appeals going to be filed against the orders passed on the Misc. Petition filed U/S.31(1)(aa) and 32 of the SFC Act if contested. Hence, the petition filed U/O.9 Rule 13 of CPC is maintainable before this Court.
15. It is the case of the petitioners that they have borrowed the amount from the respondent No.1 and others 20 Misc.No.298/2014 and they were constrained to close their manufacturing unit from September 1999 and on 29.11.1999 the 1st petitioner was declared as sick unit by the Directorate of Industries and Commerce. On 6.2.2014 the officials of the respondents came with the court officials to their residential house then they came to know that the respondent filed Miscellaneous No.549/2005 for attachment of the petition schedule properties and the same was allowed wherein they are placed ex-parte and thereafter the respondent filed Ex.No.1031/2010 for attachment and sale of the property, then the respondent obtained ex-parte judgment and decree in Misc. No.549/2005 where no notice was served and on that basis the respondent has filed the Execution petition No.1301/2010. So, the order of placing the ex-parte has to be set aside and there is a ten days delay in filing the petition.
16. The contention of the petitioners to set aside the ex- parte judgment and decree is that the respondents have obtained exparte judgment and decree against the petitioners by deliberately giving office address of the first petitioner which was closed in 2005 itself and not furnishing the residential address of the petitioners no.2 and 3 herein 21 Misc.No.298/2014 though they were fully aware of the same and also by suppressing the material fact of having seized the assets of the 1st petitioner and realizing a sum of Rs.577 lakhs form the said sale. The respondents during the pendency of the afore said Misc. No.549/09 has got the petition amended without service of notice to the petitioners and has obtained the ex-parte judgment and decree dt.17.8.09 against the petitioners.
17. Now, firstly it is to be considered whether there was due service of notice on the petitioners in Misc. No.549/2005. The Ex.P.1 to 3 are the certified copies of order, order sheet and petition in Misc. No.549/2005 shows that the petitioner No.1 to 4 and Y.D.Pandey and Pushpa Bansal were placed ex- parte. The Ex.P.2 further discloses that the notice was issued to the petitioners and Y.D.Pandey and Pushapa Bansal returnable by 19.6.2006 and on 19.6.2006 the notice sent to petitioner No.4 and Pushpa Bansal stated to be left the address and the notice sent to the petitioner No.1 to 3 and Y.D.Pandey was not returned and then the petition was posted for correct address of Petitioner No.4 and Pushpa Bansal and await notice of petitioner No.1 to 3 and 22 Misc.No.298/2014 Y.D.Pandey and posted the case on 19.9.2006 and on 19.9.2006 endorsed as the intimation was delivered to R-1 to 4 and thereafter the case was posted on 22.12.2006 and on that day also it was noted intimation is delivered to the petitioners and they are called and on the same day I.A. U/O.5 Rule 20 was filed and same was allowed and ordered to issue paper publication against respondent No.1 to 6. So, from the order sheet of Misc.549/2005 it is clear that though it was reported that the petitioner No.5 and Pushpa Bansal left the address but without filing the fresh address of them filed the I.A. U/O.5 Rule 20 of C.P.C. and so also though it was noted that intimation was delivered to the petitioners it was not held as sufficient service but ordered to issue paper publication. So, the proper procedure was not followed before ordering for paper publication.
18. The learned Advocate appearing for the petitioner relied on the unreported decision of our Hon'ble High Court of Karnataka in Cr.P No. 1000014/2015 (T.Hanumanthappa V/s. Ameenabee @ Halimabee) disposed on 9.7.2015 wherein his lordship held as under:-
23 Misc.No.298/2014
"It is not in dispute that when the case was posted on 18.3.2008 the order sheet clearly disclose that summons to the defendant was issued by RPAD which was returned with shara as Insufficient address. On that day, the plaintiff has not furnished any correct address not taken any fresh steps but instead he has filed application U/O.V Rule 20 of CPC for taking out paper publication and the said application was allowed permitting the petitioner to take out paper publication which is contrary to the very provisions of Order V Rule 20 of CPC."
19. In this regard the learned advocate appearing for the petitioners further relied on W.P. No.30260/12 (S.R.Udaya Raj V/s. Smt.Padmavathi.U) wherein his lordship has held as under:-
"The records reveals that the petitioner herein filed petition for divorce before the Family Court. Notice was issued through RPAD. However, RPAD is returned with an endorsement "Addressee left". Hence, the petitioner wants to take steps through paper publication. The Court below having found that the respondent is not avoiding notice 24 Misc.No.298/2014 intentionally and as she is left the address which is shown in the matrimonial petition, the Family Court has rightly directed the petitioner to take steps by furnishing present address of the respondent"
20. So, as held by their lordships in the above ruling when the notice sent to the petitioner No.4 and Pushpa Bansal was returned unserved for the reason insufficient address then the respondent No.1 has to take fresh steps by furnishing the correct address and thereafter it has to file the I.A. U/O.V Rule 20 of C.P.C. and though the intimation is delivered to the petitioners but it was not held sufficient. There is no suggestion to the PW-1 that they are aware of the paper publication. The PW-1 during the course of the cross- examination deposed that he has not seen the news paper regarding the publication given by the respondent. So, I am of the opinion that no notice of Misc. No.549/2005 was served on the petitioners and Y.D.Pandey and Pushpa Bansal.
21. Secondly, it is admitted fact that the respondent No.1 company has closed its business in the year 2005 itself. Even then the address of the petitioner No.1 to 3 and the said 25 Misc.No.298/2014 Y.D.Pandey is shown the office address instead of furnishing residential address of petitioner No.2 and 3. Thirdly, from Ex.P.4 and 5 it is very clear that the respondent informed the petitioner No.2 in its letter dt.8.2.2008 stating that the sale proceeds of Rs.577 lakhs was received by sale of assets and the same has been shared among the pari passu charge holdeRs. The Misc. No.549/2005 was disposed on 17.8.2009. So, the respondent would have informed the sharing of Rs.577 Lakhs to the court. Fourthly, from the Ex.P.3 it is clear that during the pendency of Misc. No.549/2005 the respondent amended the petition which is on 1.10.2008. The respondent would have made efforts to send the notice of I.A. to the petitioners. So, all these clearly shows that the petitioners have made out ground to restore the petition to its original stage.
22. It is the case of the petitioner that when the Court Officials came to their house on 6.2.2014 then came to know regarding the filing of Misc. No.549/2005. So, the petitioners came to know regarding the filing of Misc. No.549/2005 only on 6.2.2014. The Ex.P.1 to Ex.P.3 discloses that the petitioners filed copy application on 3.3.2014 and obtained 26 Misc.No.298/2014 the certified copies on 6.3.2014. It is stated in the petition as well as in the application that as the case is more than 15 years old and thereafter they gave instructions to their counsel to file the petition for restoration. So, in the facts and circumstances of the case it can be said that the petitioners have applied for the certified copies within reasonable time immediately after coming to know regarding filing of Misc.549/2005 and obtained the copy on 6.3.2014. This petition is filed on 18.3.2014. So, the petitioners filed this petition within 30 days from the date of obtaining certified copies. It appears that as a abundant caution the petitioners have filed the I.A. for condonation of the delay. Hence, the petitioner has made out sufficient grounds to restore the Misc. No.549/2005 to its original stage and there is no delay in filing the petition. Hence, the petition has to be restored.
23. So, form the discussions above I am of the opinion that the petitioner made out a case to set aside the ex-parte judgment and decree dt.17.8.2009 passed by this court in Misc. No.549/2005 by restoring the same to its original stage and the question of considering the condonation of delay do not arise for consideration. Hence, Point No1. is answered as 27 Misc.No.298/2014 do not arise for consideration and point No.2 in the affirmative.
24. POINT NO.3:- Inview of my findings on Point No.2 in the affirmative and infavour of the petitioners, the petition has to be allowed without costs. Hence Point No.3 is answered in the affirmative.
25. POINT NO.4:- Inview of my findings on point No.3, I proceed to pass the following:-
ORDER The petition filed by the petitioners is allowed with costs.
The ex-parte judgment and decree
dt.17.8.2009 passed by this court in Misc.
No.549/2005 is set aside and the same is restored to original stage.
(Dictated to the stenographer on computer and thereof, is corrected and then pronounced by me in the open court, on this the 11th day of March 2016).
( BASAVARAJ ) XLI Addl. City Civil Judge, Bangalore.28 Misc.No.298/2014
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Sanjay Bansal
b) Defendant's side: NIL.
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Certified copy of judgment in Misc.
549/05 Ex.P.2 Certified copy of order sheet in Misc.
549/05
Ex.P.3 Claim petition filed by respondent
in Misc. 549/05
Ex.P.4 Original letter issued by KSFC
dt.13/16.3.15
Ex.P.5 Certified copy of the letter issued
by the KSFC
b) defendants side : NIL
( BASAVARAJ )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
29 Misc.No.298/2014
11.3.2016
P-M.I.A.
R1 & 2 - SY
Order pronounced in the open court
vide separate order.
ORDER
The petition filed by the petitioners
is allowed with costs.
The ex-parte judgment and decree
dt.17.8.2009 passed by this court in Msic.
No.549/2005 is set aside and the same is restored to original stage.
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE 30 Misc.No.298/2014 31 Misc.No.298/2014