Decided on August 11,2003



K.S.Kumaran, - (1.)FIRST respondent-State Bank of Bikaner and Jaipur (hereinafter referred to as 'the respondent-Bank') filed O.A. 287/96 on the file of the Debts Recovery Tribunal, Delhi (hereinafter referred to as 'the DRT") against (1) M/s. B.R. Foods Limited (2nd respondent herein), (2) Mr. Sunil Jhakar (appellant herein, and hereinafter referred to as the 'Appellant/2nd defendant'), and (3) Mrs. Karuna Sharma (3rd respondent herein) for the recovery of Rs. 2,79,61,715.32 with interest and costs. On 11.3.97, the learned Presiding Officer of the DRT passed the ex parte final order as prayed for by the respondent-Bank. The appellant/2nd defendant and the Ist defendant-company filed an application on 28.6.99 to set aside the said ex parte final order. But, the said application was dismissed for default on 17.5.2001 due to their absence. Thereafter, the appellant/2nd defendant filed another Miscellaneous Application dated 28/29.5.2001 for restoration of the above said application which was also dismissed by the learned Presiding Officer of the DRT II, Delhi by order dated 19.11.2001.
(2.)Aggrieved, the appellant/2nd defendant has preferred this appeal. The 1st respondent-Bank has filed a suitable reply opposing this appeal, and the appellant has filed a rejoinder.
I have heard Counsels for the both the sides, and perused the records of the appeal as well as the records of the DRT, which were summoned.

(3.)THE learned Counsel for the appellant/2nd defendant points out from the records of the DRT that on 20.3.96 the O. A. was taken on file, and summons were ordered to be issued for 8.7.1996, but on 8.7.96, the case was merely re-notified for 16.9.96 and from 16.9.96 the case adjourned to 4.11.96. He also points out that on 8.7.96 and 16.9.96 there was no order for taking notice to the defendants, but still on 4.11.96, the Counsel for the respondent-Bank filed an application for effecting substituted service urging that the defendants have been avoiding summons, on which the learned Presiding Officer of the DRT, observing that he was satisfied that the defendants cannot by served by ordinary process, directed the defendants to be served by publication in the newspaper 'Statesman'. But, the learned Counsel for the appellant/2nd defendant contends that neither affidavit regarding service nor the returned postal envelopes were produced before the learned Presiding Officer of the DRT, and no evidence to show that the summons had been even dispatched is also there, though the summons appear to have been prepared for the hearing dated 8.7.96. He, therefore, contends that the claim that the defendants were avoiding service is not at all correct. He also points out that there was nothing to show that the defendants refused to receive the notice. In these circumstances he contends that there was no material before the DRT to come to the conclusion that the defendants could not be served by ordinary process, or for ordering service on the appellant/2nd defendant by substituted service.

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