INDUSTRIAL FINANCE CORPORATION OF INDIA LTD Vs. FLISTEX MAGNETICS LIMITED
LAWS(DR)-2004-9-2
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on September 03,2004

Appellant
VERSUS
Respondents

JUDGEMENT

K.S.Kumaran, - (1.) HEARD Counsel. This appeal is directed against the orders dated 13.7.2004 and 17.8.2004 passed by the learned Presiding Officer of the Debts Recovery Tribunal-I Delhi (hereinafter referred to as the 'DRT'). The learned Counsel for the appellant points out that the 4th defendant in the suit died on 6.10.2003 and on the application to bring on record her legal representatives, Smt. Babli Kohli and Smt. Manju Kathuria had to be served. The learned Counsel for the appellant contends that while some representative of Babli Kohli had appeared at first, but later on neither Manju Kathuria nor Babli Kohli had appeared. He also states that the correct address of Smt. Manju Kathuria had to be ascertained, and that the Counsel for the defendants was even directed to furnish the correct address. He also states that while notice had been prepared for Babli Kohli, notice had not even been issued to Manju Kathuria and, therefore, the order of the learned Presiding Officer of the DRT that the appellant has not collected the notice intended for Manju Kathuria is not correct. He also contends that the appellant does not want to take notice to Babli Kohli as well as to Manju Kathuria by the mode of substituted service without exhausting the other modes of service. He states that the appellant wants to make an attempt to serve the legal representatives before-ever it takes recourse to the mode of substituted service, but since the learned Presiding Officer had ordered that they be served by the mode of substituted service, he filed an application for the substituted service, and also an application for condonation of delay. He points out from the order dated 13.7.2004 that the appellant - Bank was allowed to take summons to Babli Kohli and Manju Kathuria by publication of the notice in the newspapers, and had also awarded cost of Rs. 20,000/-payable by the appellant in the name of the Registrar of that Tribunal. He also points out the subsequent order dated 17.8.2004, whereunder the request to review the order dated 13.7.2004 was rejected, The learned Counsel for the appellant contends that the learned Presiding Officer of the DRT was not right in closing the right of the appellant to take notice to the legal representatives inasmuch as it is the duty of the appellant to take notice to the legal representatives inasmuch as it is the duty of the appellant and the Tribunal to serve notice on the legal representatives. In these circumstances he contends that the orders dated 13.7.2004 and 17.8.2004 should be set aside.
(2.) I agree with the learned Counsel for the appellant in this respect. The contention of the Counsel for the appellant that it is the duty of the Court and the appellant to serve the legal representatives is well taken. Therefore, on the ground that there has been delay, the notice to the legal representatives of the deceased-defendant ought to have been taken to them. The learned Counsel for the appellant stales that the appellant is even prepared to take notices to the legal representatives of the deceased-4th defendant by the other modes also. In these circumstances, the impugned orders dated 13.7.2004 and 17.8.2004, by which the right of the appellant to take notice to the legal representatives of the deceased-4th defendant has been closed, are set aside. So far as the imposition of the cost is concerned, I am of the view that in the circumstances pointed out, the same is also not sustainable. Further costs can be awarded to the other side, if any, and if the circumstances so warrant, In this case costs have been imposed to be paid in the name of the Registrar of the DRT, who cannot be stated to have sustained any loss or inconvenience. Therefore, the order as to costs is set aside.
(3.) THE appeal is disposed of accordingly setting aside the impugned orders dated 13.7.2004 and 17.8.2004 to the extent indicated above.;


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