PADMASREE CORPORATION Vs. STATE BANK OF INDIA
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) THE appellants were set ex parte on 16.6.2003 and Orders were passed on 19.6.2003 allowing the OA. THE appellants filed petition to set aside the ex parte decree with a petition to condone the delay of 128 days in filing the petition to set aside the decree. THE PO, DRT has found that there is no sufficient cause or satisfactory explanation for the delay of 128 days and accordingly the PO declined to condone the delay and dismissed that petition. Aggrieved against that order the appellants have come forward with this appeal.
(2.) The Counsel for the appellants submits that the delay had occurred because the appellant's husband was hospitalised and he underwent accident and heart ailment and so he could not file the petition in time.
On a perusal of the records, it is seen that the medical certificate was issued on 29.10.2003 and the 4th defendant was advised rest for one week. Further, the appellants also filed discharge notes issued by Vijaya Hospital, Visakhapatnam Ex. A2 which says that the husband of the petitioner was admitted in the hospital on 23.7.2002 and discharged on 25.7.2002. The diagnosis is fracture of lower 1/3 radius and after internal fixture of DCP and screws and was discharged on 25.7.2002. It is found from this discharge certificate that the 4th defendant was in the hospital only for 2 days from 23.7.2002 to 25.7.2002 and discharged on 25.7.2002. The other medical certificate issued by the hospital shows that the 4th defendant was advised rest for one week from 29.10.2003. The 4th defendant was hospitalised for 2 days only in the year 2002. But the ex parte order was passed on 19.6.2003. So, the explanation given by the appellants is not at all satisfactory and convincing to say that after the decree was passed the appellant was hospitalised and so the appellant could not file the petition in time. For the accident happened in the year 2002, the appellant is not entitled to contend that he was prevented from filing the petition to set aside the exparte order which was passed on 19.6.2003. Further, the other medical certificate was issued only on 29.10.2003 which shows that the 4th defendant was advised rest for one week. It is not known for what purpose that certificate was given and the 4th defendant was suffering from which ailment, that is also much later to the passing of the ex parte decree on 19.6.2003. There was a gap of 4 months after the ex parte decree was passed when this medical certificate was issued on 29.10.2003. Within the period of 4 months there was sufficient opportunity for the appellants to file the petition to set aside the ex parte decree. The appellants did not file that petition to set aside the ex patre order in time and have filed the petition to condone the delay of 128 days in filing the petition to set aside the ex parte decree. The medical certificate produced by the appellant is not at all helpful to come to the conclusion that the appellant was really prevented from filing the petition to set aside the decree in time. PO, DRT has rightly found that there is no sufficient cause or satisfactory explanation for the delay of 128 days.
(3.) FROM the records it is crystal clear that Advocate appeared for all the defendants and after filing of Vakalat, the written statement was not at all filed. The matter was pending for about 8 months for filing the written statement. The appellants did not choose to file the written statement in time. The defendants also promised to settle the matter with the bank and took time for filing the written statement. The matter was posted to 5.3.2003 as last chance for filing written statement. On that day, none was present for the defendants. The PO, DRT in spite of that gave chance for filing the written statement and adjourned the matter to 27.3.2003. Even on that day, the written statement was not filed and on 27.3.2003 costs were imposed and it was also not complied with. In spite of sufficient opportunity given, the defendants did not avail that opportunity and did not file the written statement at all. Even though the appellant took time to settle the matter under the RBI guidelines, the appellants also did not settle that matter.;
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