CASSIM M JADWET Vs. CENTRAL BANK OF INDIA
DEBTS RECOVERY APPELLATE TRIBUNAL
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K.J. Paratwar, J. -
(1.) THE defendant Nos. 2 and 4 in O. A. No. 2367 of 2000 (High Court Suit No. 341 of 1984) have filed this Application for setting aside ex pane judgment dated 30th January 2003 passed by this Tribunal and revocation of the Recovery Certificate issued pursuant thereto.
(2.) The grounds on which this application is rested are that the applicants are Calcutta based which fact was within the knowledge of the Advocate for the respondent No. 1 Bank. By letter dated 25th November, 1997, addressed to the Advocate for the respondent No. 1 Bank, the Advocate for the applicants expressly intimated the fact. The applicants have, however, a small liaison office in Bombay situated at Vaid Building, 3rd Floor, 102, Mohammed Ali Road, Mumbai-400003, which has a few employees and is usually kept closed. On or about 9th July, 2003, a Registered A.D. envelope on address at 95, Mohammed Shahid Marg, Bombay-400005 from this Tribunal was sought to be delivered at the liaison office. As the applicants were not present, the postal authorities informed an employee of the liaison office that the said envelope would be kept at the Delivering Post Office for three days. On being informed of the same, the 2nd applicant instructed the employee to collect the envelope and sent the contents to Calcutta. The letter was accordingly collected. Upon receipt of the said letter, the employee of the liaison office who received the same attended the hearing before the Recovery Office of this Tribunal on 1lth June, 2003. On an oral application by the said employee the Recovery Officer stood over the hearing of the proceedings to 30th July, 2003. The 2nd applicant came to Mumbai on 2nd July, 2003 and informed his advocate of the receipt of the said notice. The Advocate informed that they had not received any intimation from this Tribunal or from the respondent No. 1 Bank. Thereafter, the Advocate took inspection of the papers and proceedings of the O.A. on 9th July, 2003 and whereupon the applicants came to know that the O.A. had been disposed of by ex parte Judgement on 30th January, 2003.
The applicants have averred that they have never received Transfer Notice after the matter had been transferred from the Hon'ble High Court of Judicature at Bombay to this Tribunal. The Summons sent, at the behest of the Bank, by this Tribunal on wrong address at 95, Mohammed Shahid Marg, Bombay-400005 was returned undelivered. The respondent No. 1 Bank did not make any further attempts of service and instead went for substituted service (by publication) in Free Press Journal, Mumbai edition. The applicants have stated certain facts of merit about their having ceased to be Directors of the respondent No. 2 company but said facts have no bearing in this M.A. It is stated that the respondent No. 1 Bank did not try to serve the Transfer Notice on the applicants' Advocate M/s. Romer Dadachanji Sethna and Co. The ex pane decree is sought to be set aside on aforesaid grounds.
(3.) THE respondent No. 1 Bank by reply at Exh. 14 in the nature of Affidavit of Mr. A.M. Mansaramani, Senior Manager of the respondent No. 1 has contested the grounds on which this application is said to be filed. At the outset the application is said to be barred by Lawof Limitation. About service of Transfer Notice, it is contended that the same was sent on the address available with the Bank. THE applicants had not informed about the change, if any, of their address of service. In the letter dated 25th November, 1997, written by Attorneys of the applicants to the Attorneys of the respondent No. 1 Bank, it was only stated that these applicants were presently stationed in Calcutta. It is denied that the applicants are Calcutta based. In any case on the applicants' averment showing that they have a liaison office at Mumbai which is why service (substituted) in the newspaper at Mumbai is valid, especially when attempts to serve directly were made. It is denied that the Bank was aware about change of Mumbai address (Vaid Building, 3rd Floor, 102, Mohammed Ali Road, Mumbai-400003). THE dismissal of the application is sought for on the aforesaid grounds.;
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