Decided on May 31,2005



P.K.Deb, - (1.) THIS appeal has been preferred against the order dated 24th December, 2002 passed by the then Presiding Officer, D.R.T., Allahabad in Miscellaneous Application No. 95/02, whereby and whereunder the application filed under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993(henceforth shall be referred to as the RDDBFI Act) for setting aside the final order dated 21st December, 2001 passed in T.A. No. 1197 2000 has been rejected. 1. At the very first instance it should be mentioned here that the petition by way of affidavit alone under Section 22(2)(g) of the RDDBFI Act was filed by the appellant No. 1/1 Manju Jaiswal alone, the other appellants, some of whom are her minor children, have never joined the appellant No. 1/1 in filing the petition under Section 22(2)(g) of the RDDBFI Act and in that way the other appellants in this appeal except that of appellant No. 1/1 have no right to prefer the appeal and in that way they are non-suited. The brief facts of the case are as follows: Late Ashok Kumar Jaiswal, husband of appellant No. 1 Smt. Manju Jaiswal, had taken loan from the respondent-Oriental Bank of Commerce for the purpose of his business, but he failed to make payment as per agreement arrived at and hence a civil suit was filed by the respondent-Bank against late Ashok Kumar Jaiswal and others including Manju Jaiswal as guarantor being defendant No. 8 for recovery of Rs. 61 lacs and odd. While the suit was pending before the Court of Civil Judge(Sr. Division), Allahabad, the main borrower Ashok Kumar Jaiswal filed written statement. During the pendency of the civil suit, Tribunal has been set up and as such the suit was transferred to D.RVT., Allahabad and was renumbered as T.A. No. 119/ 2000. During the pendency of "the proceeding before the Tribunal, the main borrower Ashok Kumar Jaiswal died. His heirs have been substituted including defendant No. 8 Manju Jaiswal as she was already on record. The children of the deceased Ashok Kumar were arrayed as party as minors being represented by their natural guardian mother Manju Jaiswal. Manju Jaiswal in her capacity as defendant No. 8 had filed written statement stating that a proposal of compromise was made between her deceased husband and the Bank but the same had not been respected by the Bank and her prayer was that the Court should ask the Bank to adhere to the terms of the compromise. After the death of Ashok Kumar Jaiswal his heirs did not appear, although Manju Jaiswal was already appearing and contesting the proceeding. At the last stage, she filed petition for allowing her to file additional written statement because some developments have been made in the meantime in their business deal with the Bank without disclosing what sort of developments were there. Such petition for additional written statement by the defendant No. 8 had been rejected. In that petition Manju Jaiswal-appellant never claimed to file additional written statement for and on behalf of herself as a legal heir of her late husband Ashok Kumar Jaiswal. The suit proceeded ex parte against other defendants and when after the death of Ashok Kumar Jaiswal, the other heirs of late Ashok Kumar had not contested and also proceeded ex parte but Manju Jaiswal the appellant was on record up to the last stage. In that way it cannot be said that the judgment passed in T.A. No. 119/2000 was an ex parte judgment against the appellant Smt. Manju . Jaiswal, However as the order sheets disclose that the suit was proceeding ex parte, the appellant No. 1/1 took a chance by filing a petition under Section 22(2)(g) of the RDDBFI Act saying that the ex parte judgment should be set aside, but there was no ex parte judgment against her. Rather her written statement regarding compromise was dealt with elaborately in the judgment passed in T.A. No, 119/2000.
(2.) By the impugned order the petition filed under Section 22(2)(g) had been rejected at the threshold on the ground that the same suffers from many technical and legal lacunas. The same has been challenged in this appeal. The first point comes in as to maintainability of this petition under Section 22(2)(g) of the RDDBFI Act. When no exparte judgment have been passed against the appellant Smt. Manju Jaiswal(other appellants had already been non-suited as per the first paragraph of this order), her only contention was that she had not been given an opportunity to file additional written statement, reasonings were well given in the order sheet as to why filing of her additional written statement had not been allowed. But these are no matters for consideration in the limited context of the petition under Section 22(2)(g) of the RDDBFI Act. Appellant-Manju Jaiswal was always on the records of the proceeding up to the last stage and there was no exparte judgment against her, rather her plea of compromise was dealt with in the original judgment and when no exparte order is there against the appellant Manju Jaiswal, no petition under Section 22(2)(g) of the RDDBFI Act, is maintainable and hence the impugned judgment cannot the said to be illegal, although maintainability matter has been considered on different legal aspects.
(3.) MR. R.L. Arora appearing for the appellant has submitted that as substitution of the minors as legal heirs of late Ashok Kumar Jaiswal had not been done properly by appointing a guardian, the judgment is bad in the eye of law. On the other hand MR. Mehrotra appearing for the respondent-Bank has submitted that when the natural guardian had contested and she did not deny ever to be not representing her minor children, no question arises of appointment of guardian ad item. I have got no scope to decide this controversial matter as the judgment passed in T. A. No. 119/ 2000 has not been appealed against. Any irregularity made in the judgment or procedure thereof cannot be a subject-matter for consideration in the petition filed under Section 22(2)(g) of the RDDBFI Act.;

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