ANIL KUMAR GUPTA Vs. BANK OF BARODA
LAWS(DR)-2004-11-1
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on November 24,2004

Appellant
VERSUS
Respondents

JUDGEMENT

K.S.Kumaran, - (1.) THE respondent-Bank of Baroda (hereinafter referred to as "the respondent-bank") filed O. A. No. 363 of 2000 before the Debt Recovery Tribunal, Jaipur (hereinafter referred to as "the DRT"), against the appellants (defendants Nos. 2 and 1, respectively, in the O. A., and hereinafter referred to as "the appellants-defendants") and Mr. Satya Prakash Goel. THE learned presiding officer of the Debt Recovery Tribunal passed the final order dated October 21, 2002, for the recovery of Rs. 10,51,706 with interest and costs from defendants Nos. 1 to 3 jointly and severally. THE appellants-defendants filed a miscellaneous application before the Debt Recovery Tribunal to set aside the order setting them ex parte on June 25, 2001, and the ex parte final order dated October 21, 2002. THEy also filed an application under section 5 of the Limitation Act, 1963, for excusing the delay, if any, in filing the above said application. THE learned presiding officer of the Debt Recovery Tribunal, by the impugned order dated June 9, 2003, dismissed the said application to set aside the ex parte order holding that the same was not filed within limitation, and that the first defendant intentionally avoided the service of the summons.
(2.) Aggrieved, the appellants-defendants have come forward with this appeal. The respondent-bank has filed a suitable reply opposing the appeal, and the appellants have filed a rejoinder. I have heard counsel for both the sides, and perused the records.
(3.) LEARNED counsel for the appellants-defendants contends that the first appellant-Anil Kumar Gupta was seriously ill, and was suffering from pancreatitis while his father was suffering from heart ailment, and, therefore, he had gone out of his place of residence, namely, Sriganganagar to Delhi. LEARNED counsel for the appellants-defendants contends that, therefore, the summons were returned by the postman reporting that he (the appellant) was out of station, namely, Sriganganagar. LEARNED counsel for the appellants-defendant further contends that the respondent-bank, in order to deprive the appellants-defendants of an opportunity to defend the O. A., got the notices published in the newspaper Dainik Navjyoti on May 25, 2001, which is not circulated in Sriganganagar, and got the ex parte order. LEARNED counsel for the appellants-defendants contends that since the first appellant was not in Sriganganagar but was taking treatment in Delhi, he could not know about the publication made on May 25, 2001. He further contends that on November 6, 2002, when the first appellant came to Sriganganagar, he was informed by his sister-in-law that on October 31, 2002, she had received the copy of the final order dated October 21, 2002. LEARNED counsel for the appellants-defendants further contends that thereafter the certified copies of all the papers were obtained through counsel on November 28, 2002 and then came to know about these proceedings. LEARNED counsel for the appellants-defendants contends that it cannot, in the circumstances, be stated that the first appellant-defendant avoided the receipt of the summons and, therefore, there was no ground for ordering substituted service by publication of the notice in the newspaper. He also contends that the copy of the final order dated October 21, 2002, itself was made ready for despatch on October 28, 2002 and had been received on October 31, 2002, by the sister-in-law of the first appellant. He, therefore, contends that the application filed by the appellants-defendants on November 29, 2002, to set aside the ex parte final order is in time, since it had been filed within 30 days of knowledge.;


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