Decided on December 30,2003



K.S.Kumaran, - (1.)HEARD Counsel and perused the records.
Aggrieved by the order dated 23.9.2003, declining the request of the appellants, who were defendants in the. O.A. 129/2002 of Debts Recovery Tribunal, Jaipur (hereinafter referred to as 'the DRT'), to recall the final order dated 2.4.2003, the appellants/defendants have approached this Tribunal with this appeal. According to the appellants/defendants, they had engaged a Counsel, but the Counsel never informed them either of the dates or of the fact that the appellants/defendants had even to file a written statement to the O.A. The learned Counsel for the appellants/defendants contends that the appellants/defendants were not even aware of the passing of the final order also and the Counsel had not informed them even about it. The appellants/defendants claim that on 19.6.2003, the 2nd defendant received a telephone call from the Branch Manager of the respondent-Bank about the death of an employee, who was acquainted with the 2nd defendant, and it was at that time the Manager of the Bank asked as to when the amount due under the Recovery Certificate would be paid. That is how the appellants/defendants claim that they came to know about the final order.

(2.)The appellants/defendants, without filing an application for setting aside the ex parte order, filed an application under Section 19(25) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act of 1993') for recalling the order. The learned Counsel for the appellants contends that this being not an ex parte final order, the appellants/defendants did not deem it fit to file an application to get it set aside on that basis.
A perusal of the impugned order of the learned Presiding Officer of the DRT shows that a Counsel had entered appearance on behalf of appellants/defendants on 18.7.2002, and had been seeking time to file the written statement. The order also shows that time was granted to file the written statement. The matter was adjourned to 24.7.2002, 26.8.2002, 7.9.2002, 7.10.2002 11.10.2002, 11.11.2002, 13.11.2002, 13.12.2002, 20.12.2002, 13.2.2003, 25.3.2003 and 2.4.2003. The order of the learned Presiding Officer of the DRT also shows that a cost of Rs. 5,000/- was also imposed. In spite of all these, the written statement had not been filed by the appellants/defendants. The appellants/defendants claim that there was no communication to them from their Counsel about any of these aspects and, therefore, they had even given a complaint against the Counsel to the Bar Council.

(3.)JUST because the appellants/defendants engaged a Counsel, it does not mean that the appellants/defendants are totally absolved of their duty to be present in the Court and to file a written statement. It is unbelievable that the appellants/defendants were not even aware that they should file a written statement. This is especially so, when they had filed written statement in another case in which also they had engaged the same Counsel.

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