ASHISH JAIN Vs. PUNJAB NATIONAL BANK
LAWS(DR)-2003-10-12
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on October 15,2003

Appellant
VERSUS
Respondents

JUDGEMENT

K.S.Kumaran, - (1.)RESPONDENT-Punjab National Bank (hereinafter referred to as 'the respondent - Bank') filed O.A. 936/95 on the file of the Debt Recovery Tribunal, Delhi (hereinafter referred to as 'the DRT) against (1) M/s. Tex Tube India, (2) Mr. Prem Chand Jain, and (3) Mrs. Manju Saxena. The final order dated 8.7.79 was passed against the above said defendants to pay jointly and severally Rs. 16,74,495.48 with interest and costs. In the O.A., the respondent - Bank alleged that the 2nd defendant-Prem Chand Jain was the sole proprietor of the 1st defendant-concern, while the 3rd defendant-Mrs. Manju Saxena is a guarantor, who also created an equittable mortgage over the proprieties mentioned in the O.A. to secure the repayment of the amounts advanced to defendants 1 and 2. The final order also directs that the respondent-Bank is entitled to sell the mortgaged property for realising its dues.
(2.)The appellants, who are not the defendants but the legal representatives of the 2nd defendant-Prem Chand Jain, thereafter filed a Miscellaneous Application on 9.10.2001 to set aside the above said final order dated 8.7.97. They urged that the 2nd defendant-Prem Chand Jain, who was the sole proprietor of the Ist defendant, had appeared in person before the DRT, and had filed the written statement, but, had died on 9.1.97. The appellants also urged that the respondent-Bank did not take steps to bring on record the legal representatives of the decreased 2nd defendant, and the ex parte final order was passed on 8.7.97 even against the deceased 2nd defendant. According to the appellants, the final order, the Recovery Certificate and further proceedings held after 9.1.97, the date of death of the 2nd defendant-Prem Chand Jain, are null and void, and have to be declared as such. Alternatively, the appellants also urged that they were prevented by sufficient cause from appearing before the DRT, which resulted in the ex parte final order. They further urged that even otherwise the ex parte final order was passed without taking into consideration the written statement filed by the defendants 1 and 2. The appellants have also raised certain disputes with regard to the validity of the alleged mortgage created by the 3rd defendant. According to the appellants, they came to know about the proceedings in the O.A. only on 22.9.2001 when the Receiver appointed by the Recovery Officer took possession of the properties, said to have been mortgaged, from Vardhman Containers and Paper Tubes, who had purchased the property from the 3rd defendant-Mrs. Manju Saxena. The appellants, therefore, prayed by means of this application for a declaration that the final order dated 8.7.97 and the Recovery Certificate are null and have, therefore, to be set aside.
The respondent-Bank opposed this Miscellaneous Application filed by the appellants before the DRT. The learned Presiding Officer of the DRT, by his order dated 11.3.2002, dismissed the said Miscellaneous Application observing that Mr. Anil Aggarwal, Advocate had appeared on behalf of the 2nd defendant and, therefore, a duty is cast upon the said Counsel, by Order XXII Rule 10A of CPC, to report about the death of the 2nd defendant, but the said Counsel had not done so. The learned Presiding Officer of the DRT also observed that under Sub-rule (4) of Rule 4 and under Rule 6 of Order XXII of CPC the final order passed even against a dead person, is effective. Ultimately the learned Presiding Officer of the DRT dismissed the said application filed by the appellants, though he directed that the liability of the legal representatives of the 2nd defendant shall be limited to the estate of the deceased inherited by them.

(3.)AGGRIEVED, the appellants have filed this appeal. The respondent-Bank did not file any reply to the appeal, but the learned Counsel for the respondent-Bank stated that he would advance arguments.


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