Decided on June 26,2003



K.S.Kumaran, - (1.)RESPONDENT-Industrial Investment Bank of India (formerly known as Industrial Reconstruction Bank of India, and hereinafter referred to as 'the respondent-Bank') filed O.A. 200/97 against, (1) M/s. Premier Vegetable Products Ltd.; (2) Mr. D.N. Jaju; (3) Mr. Sanwar Mal Aggarwal; (4) Mr. S.N. Ojha; and (5) Mr. Shyam Sunder Sharma (hereinafter referred to as 'the appellant') before the Debts Recovery Tribunal, Delhi (hereinafter referred to as 'the DRT'). The DRT passed the ex parte final order against the appellant and others on 25.11.1999. The appellant filed a Miscellaneous Application under Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as 'the Act') for setting aside the ex parte final order urging that notice of the O.A. was not served upon the appellant, and that he had also not come across any publication of the notice of the O.A. in the newspaper. According to the appellant, he was sick and, therefore, had been living in Calcutta for more than five years preceding this application. According to the appellant, the 4th defendant-S.N. Ojha received an envelope from the DRT sent to his old address but redirected by the Post Office, and that he (appellant) came to know about the proceedings only when Mr. Ojha informed him about the final order and the Recovery Certificate having been issued.
(2.)The said application for setting aside the ex parte final order along with a similar application filed by the 4th defendant-Ojha was heard and dismissed by the learned Presiding Officer of the DRT by his common order dated 4.12.2001 observing that the notice sent to the appellant was not received back unserved, though, the postal receipts showed the despatch of the notice by registered post with acknowledgement due, and that the normal presumption is that the notice was served. He also observed that, by way of abundant caution, notice was also published in the newspaper 'Statesman', and since the appellant did not appear despite service, he was rightly proceeded ex parte. Therefore, he held that there was no merit, and dismissed the application in limine.
Aggrieved, the appellant has preferred this appeal. The 1st respondent has filed a suitable reply opposing this appeal, and notice to the respondents 2 to 5 was dispensed with as they are proforma parties to this appeal.

(3.)I have heard the learned Counsels for both the sides, and perused the records.

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