Decided on January 16,2003



S.K.Mohapatra, - (1.)THIS pertains to the application filed on 20th August, 2001 under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for setting aside the ex parte judgment dated 24.7.2001 passed in O.A. No. 36 of 1999.
(2.)1 have perused the miscellaneous application along with counter reply filed by Decree Holder Bank and the written arguments filed on 2.1.2003 on behalf of the applicants and heard the arguments of both the parties on 20.12.2002. Nobody appeared for defendant Nos. 2 to 4 (Guarantor Defendants 3 to 5 in O.A. 36/99).
The petitioner No. 1 is the proprietorship firm and the petitioner No. 2 is the proprietor of the said firm. It is the case of the petitioners that after service of the notice upon them they appointed one Mr. Chandra Shekhar Prasad, Advocate, who had filed Vakalatnama on behalf of the defendants in Original Application No. 36/99. The said Advocate, however, left pairvi in the case and did not file show cause on behalf of the defendants. It has been alleged that the Counsel did not even inform the present petitioners about the development of the case and left pairvi in the original case. They were expecting that the Counsel will conduct their case carefully. The petitioners received ex parte judgment dated 24.7.2001 from DRT, Patna on 31.7.2001 and filed the instant M.A. within the limitation period. The petitioner further contends that the rate of interest charged by Bank is very high and excessive and they should be given a chance to contest the original case on merit in the interest of justice. Precisely it is the case of the petitioners that there was no deliberate laches on their part and they should not suffer on account of negligence of their lawyer.

(3.)THE Decree holder Bank (Defendant No. 1) vehemently controverted the assertion of the petitioners mainly on the ground that there is no sufficient cause for non-contesting before the DRT, Patna during the long period since filing of the case in March 99 till final disposal on 24.7.2001. THEy have relied on Delhi High Court judgment reported in AIR 1998 page 213, to strengthen their points that negligence on the part of the Counsel is not itself sufficient to allow the application. It is also their case that the defendants had admitted the loan and has made several compromise proposals but the Bank has not received their dues as yet and, therefore, they should not suffer because of mere alleged negligence of the agent appointed by the petitioners. It was also contended during argument that the petitioner has not filed any written communication made between them and the Counsel nor has taken any action for the lapses of the Counsel and in the absence of material proof they should not be believed.

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