Decided on October 08,2003



Ashok C. Prakash, Presiding Officer (Judge) - (1.)BY the Misc. Application No. 6/ 2002 filed on 8.7.2002 by the applicant (defendant No. 9) under Section 22(2)(g) of the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993, the petition/D-9 has prayed for setting aside ex parte Order dated 9.8.2001. Since the facts of both the MAs i.e. M.A. Nos. 6 and 7/2002 (filed by D-10) are all almost the same, so for the purpose of disposal of both the MAs by common Order, only facts of MA No. 6/2002 are discussed in details.
(2.)The affiant (D-9) has solemnly affirmed in the affidavit that, the Hon'ble Recovery Officer passed Order dated 1.7.2002 in R.P. No. 307/2002 in DRC No. 525/2001, ordering attachment of the property situated in S.F. No. 128 (Door No. 83) Dharapuram, Udumalpet more fully described in the accompanying petition in the schedule of property standing in the name of Muthammal, who died on 21.5.2000. Felt aggrieved by the said Order of attachment, he has filed M.A. No. 6/2002. He has further submitted that, the said property was bequeathed upon him as ancestral property by Late Muthammal and even before the Order dated 9.8.2001 passed by the Presiding Officer in T.A. No. 288/2001 D-6 had passed away; therefore, the Order of attachment attaching the properties standing in the name of Mrs. Muthammal abates; So the petitioner has prayed for issuing direction to the respondent Bank to furnish him the documents on which basis, the attachment against his property. He has further humbly submitted, that only after the Order of attachment passed by the Hon'ble Recovery Officer was pasted in the petition mentioned property on 5.7.2002, he came to know of the proceedings before DRT and that, he has been impleaded as D-9 in the said case. After inspection of the record, he came to know that, on 9.8.2001, the Hon'ble Presiding Officer in T.A. No. 288/2001 ordered the application as prayed for by the applicant Bank, wherein he had been impleaded as D-9, and in the said order at page-3, it is stated, "that D-2 as guardian of D-9 and D-10, who were the minors deposited the original title deeds relating to property described in item 3 of schedule A" to the application. From the above observation, it is clear that the properties were mortgaged only when he was a minor and he was not informed about the mortgage of the properties. He has further submitted that, he was not aware of the Order and all these years, he was never served with any such notice of such proceedings, and till date, he is not aware, in which capacity, he had been impleaded as party to the above proceedings. The applicant has further submitted, that he was not permanently residing in his house on account of problem among the family members, and as such he was not aware of any legal proceedings, and he has been a resident of Madras since 1998. So he had applied for setting aside ex parte order dated 9.8.2001.
Further the petition/D-9 in M.A. No. 6/2002 has filed IA No. 366/2003 on 30.6.2003 praying therein for stay of the proceedings by the Recovery Officer in pursuance of DRC No. 525/2001 including auction sale proposed to be conducted on 9.7.2003. The affiant has solemnly affirmed that, the respondent Bank filed O.S. No. 20 of 1996 before Hon'ble Court of Sub-Judge, Udumalpet, which was transferred as O.A. No. 288/2001 at the Hon'ble DRT Chennai. Now it is transferred to this Hon'ble Tribunal as T.A. No. 1967 of 2002. He has further submitted that, he had filed M.A. No. 6 of 2002 to set aside ex parte Order dated 9.8.2001 on various grounds including:

(a) A personal decree has been granted against him (D-9) even though such a relief was not sought for in the suit.

(b) Paper publication to him (D-9) was caused on 26.4.98 in local English daily "Madras Times" having circulation in Chennai when he was studying in Coimbatore.

(c) Notice to him (D-9) from Sub-Court Udumalpet as well as Hon'ble DRT Chennai were returned with endorsements. "Not in Station" as he was studying at Coimbatore at that relevant time.

(d) Ex parte decree was passed against Muthammal (D-6) on 9.8.2001 while Muthammal died on 1.5.2000 itself. Hence the decree as against a dead person is null and void and cannot be looked into/enforced.

(3.)THE petitioner has further submitted that, the respondent Bank has admitted in para-11 of the Counter filed in M.A. No. 6/2002, that, "during the pendency of the proceeding before DRT, Chennai, the said Muthammal died and the legal heirs 'Indrani' and 'Natarajan' are already on record as D-2 and D-5".

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.