(1.) MR. R.C Das, the learned Advocate appears for the applicant Bank.
The learned Advocate, appearing for the defendant No. 5, has expressed his intention on behalf of the said defendant to move before the Hon'ble High Court of Orissa against the order dated July 2, 2004 of this Tribunal. Though it was directed on that day and date to supply the free copy of the said order, till date the copy of the said order has not been delivered to the Bank as well as to the seven defendants. The learned Advocate, appearing for the defendant No. 5, being claimed as a guarantor in respect of the entire transaction, has been consequently unable to move before the Hon'ble High Court of Orissa, because of the above impediment. The above submission has been found to contain substance in it. Accordingly, the learned Registrar-in-charge is being directed to serve the copy of the order passed by this Tribunal on July 2, 2004 in connection with OA No. 163 of 2001. It has been, if fact, found upon the careful close scrutiny of the records maintained in the present proceeding that an application under Sub-section (2) of Section 31-A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. (Act No. LI of 1993), is unnecessarily pending for a long time, though this Tribunal has been under the statutory arrangement duty-bound to issue henceforth a Certificate under Sub-section (2) of Section 31-A of the said Act. From the records so maintained, it appears that the defendant Nos. 5, 6 and 7 have appeared in response to the notice of transfer of the Execution Case No. 60/ 1990 to this Tribunal from the learned transferring Tribunal at Patna. The Section 31-A application has also arisen from the execution case to arise out of the ex parte decree passed in TMS No. 19/1992 by the learned Civil Judge (Sr. Division), Chhatrapur, dated November 27, 1996 as far as the defendant Nos. 5, 6 and 7 are concerned. In this regard this Tribunal is laying stress on an application made by the defendant Nos. 5, 6 and 7 on June 22, 2001.
(2.) As claimed earlier, the present application has been, in fact, an application for the issuance of a Certificate under Sub-section (2) of Section 31-A, which lies in contradistinction with a Certificate to be issued under Sub-section (22) of Section 19 of the said Act. On May 10, the same defendants made further application after admitting themselves as the guarantors in the loan transaction. That application was filed before the learned transferring Tribunal at Patna giving rise to AO No. 60/1990. Both the applications as above are on the self-same cause of action. This Tribunal should, as the ordinary man of prudence normally understands, highlight the provisions contained in Section 11 of the Code of Civil Procedure, 1908 [Act No. V of 1908].
The applicant Bank preferred the present application before the learned transferring Tribunal at Patna, after being paid no decretal amount as ordered by the learned Civil Judge (Sr. Division), Chhatrapur, in connection with TMS No. 19/1992 (the date of judgment being October 8, 1960 by each of the seven defendants/judgment-debtors when the execution proceeding to arise out of TMS No. 19/1992 would, in particular, be spoken up. The judgment had been delivered by the learned Civil Judge, after hearing the defendant Nos. 1 to 4 at length on each of the nine issues framed under Order 14 of the said Code before the judgment was delivered on October 10, 1996 in connection with the Title Mortgage Suit against the seven defendants. Out of such the defendant Nos. 5 to 7 are very much interested in moving before the higher forum. The said matter has been exclusively a contesting matter, if the cross-examination as well as the evidentiary value already given to the exhibit Nos. 1 to 15 are weighed.
(3.) THE defendant Nos. 5 to 7 might have preferred the appeal against the ex pane judgment and order, which has been pronounced on October 8, 1996 against themselves. Instead of filing the petition under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (Act No. V of 1908), they have done nothing. Neither of the defendants has paid to the applicant Bank a sum of Rs. 1,79,21,041-15 p, with PI and FI.;