E PRABAKARAN Vs. LAKSHMI VILAS BANK LTD
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) AGGRIEVED against the Order passed by the PO, DRT, Coimbatore, in dismissing the application to set aside the ex parte Order as against the appellants defendants 2 and 3, the appellants have come forward with this appeal.
(2.) Counsel for the appellants submits that the appellants are residing only in No. B-1/10, 3rd Cross Street, Zackaria Colony, Chennai-94, and they are not residing at No. 25A, Baroda Street, West Mambalam, Chennai-33, and the Bank also sent notice to the Zackaria Colony address only and so the summons sent to the Baroda Street address was not served on the appellants and the ex parte Order passed in their absence, is liable to be set aside.
Counsel for the respondent Bank submits that in the loan document and other documents the appellant has given only the Baroda Street address and in the further correspondence sent by the appellant, the appellant has given only the Baroda Street, West Mambalam address and even the latest letters sent by the appellant were from Baroda Street, West Mambalam only and only for the address given by the appellant the notices were sent and the notices were returned as 'unclaimed' and so paper publication was effected and there was proper service of summons and so the ex pane Order passed is not liable to be set aside. Counsel for the respondent Bank very much relies upon the loan documents wherein the Baroda Street address is given and also the further correspondence sent by the appellant wherein the Baroda Street address alone is given.
(3.) COUNSEL for the appellants very much relies upon the notice sent by the Bank on 19.8.1998 wherein the Bank has sent the notice to the appellants to the Zackaria Colony address. Much reliance is placed upon by the COUNSEL for the appellants on this notice and the COUNSEL for the appellants vehemently argues that when the Bank itself knows the address of the appellants as Zackaria Colony and since the Bank has sent notice to that address, the Bank is bound to send the summons only to that address, but the summons were sent to the Baroda Street address and it is not proper and so it can be held that there is no proper service of summons. In the other letters sent by the defendants to the Bank of course, the Zackaria Colony address is shown. Much reliance is placed on the notice issued by the Bank dated 19.8.1998. Of course, in that notice the Zackaria Colony address is given and, in the Auction notice also that address is given. But the property No.25-A, Baroda Street, West Mambalam, Chennai, also belongs to the appellants only and that is given as security to the Bank. The PO, DRT, has found that the notice sent to the appellants defendants 2 and 3 are not returned with the endorsement "Addressee not available or addressee shifted" but with the endorsement "Not claimed" and so the applicant Bank effect publication in two Newspapers. COUNSEL for the appellants submits that originally the appellants were residing in Baroda Street address and later they shifted to Zackaria Colony address. There was no correspondence by the appellants to the Bank with regard to the change of address. Of course, the Bank has sent the notice to the Zackaria Colony address. But it is not made clear that the appellants are not residing in the Baroda Street address. The endorsement on the returned cover shows as "Not claimed". It means the appellants did not claim that letter. That means the appellants only refused that letter. It is not stated that the addressee is not found there or the addressee has shifted from that premises. Further, it is significant factor that the Order copy was sent only to the Baroda Street address and the appellant himself has admitted that the Order copy was given by some person from that address to the appellant and he received that Order copy and then he filed the petition to set aside that ex parte Order.;
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