STATE BANK OF HYDERABAD Vs. A.V. GIRISH NAIDU
DEBTS RECOVERY APPELLATE TRIBUNAL
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A Subbulakshmy, J. -
(1.) AGGRIEVED against the Order passed by the PO, DRT, in allowing the applications to condone the delay of 1657 days in filing the petition for setting aside the expert decree dated 26.2.1999, and staying recovery proceedings in the OA, the appellant Bank has come forward with these appeals. The PO, DRT, has found that no opportunity was given to the petitioners to cross -examine PW 1 nor their right to cross -examine the said witness was forfeited and the facts and circumstances set out by the petitioners in the affidavit filed by them and the time spent by the petitioners in trying to Settle the OA claim by addressing various letters to the respondent -Bank enable one to inter that the petitioners have been put to difficulties for no fault of theirs and that the delay caused in filing the MAIR -258/03 has been sufficiently explained and so the petition has to be allowed and the PO, DRT, has allowed the petition to condone the delay.
(2.) COUNSEL for the respondent Nos. 1 and 2 submits that the respondents have got a good defence and there is a pre -condition for deposit and the Ist defendant has to mobilise the deposit from the public before availing the loan and that condition was not fulfilled and the Respondent Nos. 1 and 2 have got a valid defence and they must be given opportunity to contest their case. Counsel for the appellant -Bank submits that the respondents were represented by Power of Attorney and the Ist defendant was the Power Agent for D2 and D3 and the written statement was filed by the Power of Attorney and the respondents were properly represented before the DRT and in spite of sufficient opportunity given the respondents never contested the case and they came forward with a petition to condone the delay in setting aside the expert decree. Counsel for the respondents submits that the Power of Attorney executed was a subsequent matter and the Power of Attorney has to be gone in detail. Assuming whether the Power of Attorney was executed in time or subsequently the other records filed reveal that the respondents had full knowledge about the matter and they were aware of the entire proceedings and in spite of that the respondents did not file the petition in time. The demand notice was received by the 2nd defendant who is the son of the 3rd defendant and he has received that notice behalf of himself and for D3 on 7.5.2002. Even after receipt of that demand notice the respondents did not file the petition to set aside the expert Order in time and respondents have come forward with a petition to set aside the ex parte Order with a petition to condone the delay on 8.9.2003. Even after receipt of that demand notice the respondents did not come forward immediately with a petition to set aside the ex parte Order.
(3.) THE 2nd defendant has also written letter to the Bank on 12,5.2003 wherein the 2nd defendant has stated that he had earlier interacted with the Zonal Office before going to the Chief Manager, State Bank of Hyderabad. So, it is clearly revealed that the respondents had sufficient knowledge about the case and in spite of that they did not take steps to file the petition in time. Further, the 2nd respondent has also written letter to the Chief Manager on 16.5.2003 wherein the respondent has stated that the respondent has requested the Bank to grant him a grace period of four months time and he has also admitted that he has signed as guarantor. Further, on 6.6.2003 the 2nd respondent has written letter to the Chief Manager, State Bank of Hyderabad, stating that he is now in a position to enter into a compromise with the Bank for the settlement of dues incurred by Mr. Prabhakar Rao the Ist defendant and after agreeing to a modest figure and keeping in mind the present financial crunch in the market he can make an ad hoc payment of 25% of the figure agreed upon and the balance in one or two instalments spaced out over a period of 2 to 3 months. All the documents clearly reveal that the respondents were trying to settle the matter and the respondents were aware of the proceedings, and they had very good knowledge about all the proceedings. Further, the receipt of the demand notice by the respondents on 7.5.2002 is a very significant factor and even after receipt of the demand notice the respondents did not come forward to set aside the expert Order in time and they filed the petition to set aside the expert Order only in September, 2003. So, all these things clearly reveal that there is no proper ground at all for condoning the inordinate delay of 1957 days in filing the petition to set aside the expert Order.;
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