MANJULA C SHETH Vs. INDIAN BANK
LAWS(DR)-2004-3-13
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on March 11,2004

Appellant
VERSUS
Respondents

JUDGEMENT

Pratibha Upasani, - (1.) THIS Misc. Appeal is filed by the appellants/proposed defendants being aggrieved by the order dated 3.1.2003 passed by the learned Presiding Officer of Debts Recovery Tribunal-Ill, Mumbai on Exhibit No. 16 in Original Application No. 2203 of 2000. By the impugned order, the learned Presiding Officer allowed the application filed by the applicant Bank and ordered that heirs of the original defendant No. 3 (since deceased) be taken on record. By the impugned order, the learned Presiding Officer reviewed his earlier order dated 30.5.2002 whereby he had allowed the application Exh. No. 12 filed by the present appellants for deleting their names from the claim petition and directing the Registrar to enquire into the matter and decide afresh whether the applicants could be added as defendants or not.
(2.) This matter has got rather a checkered history and few relevant facts have to be stated to appreciate the disputed point involved. The appellants are heirs of the deceased defendant No. 3 Chimanlal P. Sheth who expired on 25.1.1997. The appellant No. 1 Manjula, Chimanlal Sheth is the widow and the appellant No. 2 Chandrakant Chimanlal Sheth is the son of the deceased defendant No. 3. The appellant No. 2 Chandrakant was the party in the original suit filed by the applicant Bank against four defendants namely M/s. Colo Writing Instrument Limited, Kumar Sheth, Chimanlal P. Sheth and Chandrakant Sheth. This suit being a Suit No. 4745 of 1996 was filed by the Indian Bank against these defendants for recovery of Rs. 59,94,951.91 paise and for enforcement of the hypothecated/mortgaged securities against the defendants. The defendant No. 3 Chimanlal was sued in the capacity of guarantor having guaranteed repayment of the amount sanctioned DM way of various credit facilities by the Bank in the name of the said proprietary concern M/s. Colo Writing Instrument Limited, This defendant No. 3 namely Chimanlal expired on 25.1.1997. Now it is the case of the appellants in this Misc. Appeal, that fact of death of Chimanlal was intimated orally at one of the hearings of the interim proceedings before the High Court. Further the respondent No. 3 in the present appeal, namely Kumar Sheth, director of the defendant No. 1 firm by his letter dated 2.7.1997 addressed to the Court Receiver, High Court, Bombay in the said High Court Suit No. 4745 of 1996 conveyed in writing about the death of the original defendant No. 3 and duplicate copy thereof was endorsed to the Indian Bank's Advocates M/s. M. Dhruva & Co. Copy of the said letter dated 2.7.1997 is annexed to the appeal memo. It is further contended by the appellants that in the affidavit in support of Notice of Motion No. 974/1999 in Suit No. 4745/1996 the Bank had admitted to have been informed about the death of the defendant No. 3 on 3.8.1998 which death they admitted to have taken place on 25.1.1997. Copy of the affidavit is also annexed to the appeal memo. It is further contended by the appellants that the appellant No. 2 Chandrakant in his affidavit dated 20.4.1999 in reply to the applicant Bank's Notice of Motion No. 974/1999 had also pointed out about the death of original defendant No. 3 on 25.7.1997 in para 2(e), copy of which was directed to the Bank's Advocate. This copy also is annexed to the appeal memo. It is the contention of the appellants that on 5.1.1999, the Bank took out Chamber Summons being Chamber Summons No. 14/1999 in Suit No. 4745/1996 for amendment of the plaint and in paragraph 4 of the affidavit in support thereof, the Bank admitted and averred specifically about the death of original defendant No. 3 on 25.1.1997, but didn't choose to pray for any amendment to bring on record heirs of deceased Chimanlal and instead the application was moved for amendment of the plaint shown in Schedule-I giving particulars of flat Nos. 7 and 8 in Chandra Milan CHS Ltd. This Chamber Summons was not prosecuted further nor copy of the schedule in terms of amendment was served upon the appellants. Copy of the Chamber Summons No. 14/1999 is annexed to the appeal memo. It is further the contention of the appellants that thereafter when the proceedings were transferred from High Court to DRT-III, Mumbai, the respondent No. 2 firm was served with the said notice dated 17.7.2001. Thereafter the above matter appeared on 8.10.2001 and was further adjourned to 20.11.2001. As per the contention of the appellants on 26.12.2001, they were served with amended application in this matter, wherein they had been described as proposed defendant Nos. 3-A and 3-B in place of Chimanlal Sheth/ original defendant No. 3 since deceased. It is contended that there was no averment made in the above application nor the application appeared to have been redeclared. According to them, order allowing the amendment and bringing appellants on record was passed on 8.10.2001 though no proceedings were served upon any of the defendants including original defendant Nos. 2 and 4 who were parties to the suit in the High Court.
(3.) IN view of this, the appellants took out miscellaneous application praying inter alia that, it be declared that the Bank's application being O.A. No. 2203/2000 had abated and the same be dismissed and that the order allowing the application of amendment by deleting the name of the original defendant No. 3 and bringing on record the newly added defendants being defendant Nos. 3-A and 3-B be quashed and set aside. IN the alternative, it was also prayed that the applicant Bank be directed to serve application for amendment on the defendants and opportunity of being heard in the matter be granted in accordance with principles of natural justice and after bearing, appropriate order be passed. On this application, the learned Presiding Officer of DRT-III, Mumbai on 30.5.2002 passed order, sort of partly allowing the application and sent the matter to the Registrar for making inquiry into the matter and deciding the same afresh as to whether the defendants could be added as defendants or not. It was this order which was sought to be reviewed by the Bank by their application made in June 2002, on which impugned order dated 3.1.2003 was passed by the learned Presiding Officer. The appellants are aggrieved by this order whereby they were ordered to be brought on record though according to them the application was time barred from every angle and though this was admitted by the learned Presiding Officer, still he went on to allow the application on the ground that "such things generally happen in public institutions" and because public fund was involved. It is this order, which is being challenged before this Appellate Tribunal.;


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