(1.) This appeal has been preferred against the order dated 20th November, 2003 passed by the then Presiding Officer, D.R.T., Allahabad in M.A. No. 99/03, whereby and whereunder the application filed under Section 22(2)(g) of the RDDBFI Act, 1993 (henceforth shall be referred to as the Act) for setting aside of the ex pane judgment dated 12th April, 2002 passed in T. A. No. 325/2000 has been rejected.
There is a chequered history of the case. The appellant happens to be one of the partners of Mahavir Ji Sugar Industries. The said Sugar Industries had taken loan from the erstwhile Kashi Nath Seth Bank Limited the credit facility to the tune of Rs. 15 lacs together with interest ï¿½ 18% per annum with quarterly rest and also cash credit limit of Rs. 10 lacs @ same interest subject to revision by the guidelines of R.B.I. which is raised to 20% per annum with quarterly rest plus 0.75% State Tax. All the partners of the defendant No. 1 firm were made parties in the suit filed be fore the Civil Court at Shahjahanpur, They were defendant Nos. 2 to 4 including the present appellant. Defendant Nos. 5, 6 and 7 stood as guarantors. On 9th August, 1985 banking documents had been executed by the defendants. When the defendants failed to repay the amount, then the Banker i.e. Kashi Nath Seth Bank Limited filed Original Suit No. 479/95 at Shahjahanpur Civil Court claiming an amount of Rs. 33,21,042.86 with interest @ 20.75% with quarterly rest. In the Civil Court the appellant had put in appearance through their Pairvikar but did not take any steps to file written statement nor formal Vakalatnama was filed. When the suit was pending before the Civil Court, then the D.R.T. Act came into force and the Civil Suit was transferred to the D.R.T., Jabalpur which had got jurisdiction over the State of erstwhile U.P, and therein it was registered as T.A. No. 1012/98, but then for the jurisdiction of erstwhile U.P. a separate Tribunal was set up and the case was again transferred to D.R.T., Allahabad wherein the case has been registered as T.A. No. 325/2000. In the Jabalpur Tribunal notices were sent to the defendants including the appellant and service of notices on the defendants had been accepted except that of defendant No. 5 whose notice ultimately was published in the newspaper and then the case was transferred again to D.R.T., Allahabad. Here also before the D.R.T., Allahabad ordinary notices were sent but when evading of service of notice was there by the defendants, then the notices were published in the newspaper but still then, the defendants including the appellant did not appear and as such the case was taken up ex pane and then the ex pane judgment was passed as mentioned above on 12th April, 2002 and on the basis of the recovery certificate issued, D.R.C. case was registered and the properties belonging to the defendants which were placed for security before the Bank had been auctioned and sold. At that stage only the present appellant filed a petition under Section 22(2)(g) of the RDDBFI Act, for setting aside ex parte decree and along with that petition under Section 22(2)(g) of the RDDBFI Act, a further petition was filed under Section 5 of the Limitation Act. In the petition filed under Section 22(2)(g) of the RDDBFI Act, the ground was taken to the effect that the appellant-applicant could not be able to contact their lawyer or engage him because of their poverty and as such they should be allowed to contest the claim of the Bank as their case was that they had repaid a huge amount towards the Bank loan long back in the year 1991 and as such the claim is exaggerated and having no basis. It should be mentioned here that during the pendency of the Civil Suit, Kashi Nath Seth Bank Limited have been merged with the State Bank of India and practically the Stale Bank of India-respondent was pursuing the case in the Civil Court and then before the Tribunals. There was not an iota of any pleading from the side of the appellant in their petition under Section 22(2)(g) of the Act or the petition filed under Section 5 of the Limitation Act that the appellant was never served with the summons nor they had any knowledge about the proceedings in the Civil Court and subsequently before the D.R.T. at Jabalpur and Allahabad, lather there was admission in the petition itself that they had knowledge of the proceedings before the D.R. Ts. and the Civil Court. For the first time in the memo of appeal before this Court appellant has taken pleas that summons/notices had never been served either in the Civil Court or by the D.R. Ts. at Jabalpur and Allahabad. The petition, under Section 22(2)(g) of the RDDBFI Act, was supported by a petition under Section 5 of the Limitation Act as the petition was hopelessly barred by limitation for more than one year. Before the learned Tribunal in course of the day, they took the plea of non-service of summons/notices and that was considered by the learned Tribunal in their proper perspective. It was not their case before the Tribunal that notices or summons are not served on them, rather plea was that they could not engage a lawyer. The petition filed by the appellant before the Tribunal was also a mischievous one. It was very much-within the knowledge of the appellant that Kashi Nath Seth Bank had merged with the State Bank of India and decree was passed in favour of the State Bank of India, but still then in the petition under Section 22(2)(g) of RDDBFI Act, Kashi Nath Seth Bank Limited was made opposite party, when it was not in existence at the relevant time. Against the dismissal of the petition under Section 22(2)(g) of the RDDBFI Act, long back on 20th November, 2003, no appeal was filed, rather the appellant had slept over the matter. Then another application was filed by his mother for setting aside ex pane decree and that was also registered as mucilaginous application. This appeal has been preferred in the month of September, 2004 i.e. about 216 days after expiry of the limitation period and in the limitation petition under Section 5 of the Limitation Act, it has been stated that the appellant was not knowing regarding the procedure of filing of the appeal before the Appellate Tribunal against the dismissal of his miscellaneous application, but when objection was filed by the Bank in other miscellaneous application filed by his mother Bhagirathi Devi, then he could know that appeal was to be filed against the dismissal of his M.A. and every thing has happened because of ignorance of law and wrong advice of the lawyer.
(2.) On the petition filed under Section 5 of the Limitation Act, an objection has been raised from the side of the respondent-Bank and reply had also been filed on merit on the memo of appeal. And their plea was that the appeal filed is hopelessly barred by limitation and no explanation has been given regarding such delay and explanation given regarding ignorance of law has gotno legal basis to be considered, Their contention on the merit is that the appellant is taking different/contradictory pleas at different stages. At the initial stage, they has no case of non-service of summons or notices, rather their plea was that they were not in a position to engage a lawyer because of poverty. But now the plea is that the summons/notices had not been served and it has rightly been held that notices and summons were duly served and that was not the case of non-service by the appellant in their application under Section 22(2)(g) of the Act and that their plea of poverty in engaging a Counsel could not be established by any evidence whatsoever.
Let me first of all takeup the matter of limitation. Admittedly the appeal is time-barred for 216 days and no explanation have been given on such delay for day-to-day delay, rather they have taken a plea of ignorance of law regarding filing of the appeal in time before the appellate Tribunal. Nowhere it has been said in the petition that they had been advised by the lawyer engaged by them that no appeal is required to be filed, rather mischievous procedure has been taken from the side of the defendants in the case. Separate petitions were filed by the appellant and his mother for the purpose of setting aside of ex pane decree, although admittedly they reside together and having common interest. When they could find from the objection filed by the Bank in the miscellaneous application filed by Bhagirathi Devi that they might be not getting any fruitful result in their favour, then and then only the present appeal has been filed. The reasons given for delay in filing of the appeal are not tenable in the eye of law and hence there is no scope of entertaining the appeal for condoning the vast delay. Learned Counsel for the appellant urged on sympathy of the Court to give chance to fight out the case on merit, but when mischievous action is there from the side of the appellant as envisaged in the foregoing paragraphs, there is no scope to show any sympathy to the appellant. They slept over the matter knowing fully well about the proceedings going against them. But when their properties were touched, then they came up with false and frivolous pleas for setting aside ex pane decree. When the delay has not been explained properly and justifiably, then there is no scope to condone the delay as the appeal is barred by limitation.
(3.) COMING on merit it is crystal clear that appellants were in the knowledge of the proceedings before the Civil Court and then before the D.R.T., Jabalpur and D.R.T., Allahabad which is apparent from their petition filed under Section 22(2)(g) of the RDDBFI Act. Then on the ground that they cannot engage lawyer for their poverty, can be no ground for setting aside of the ex pane decree, rather it appears that they have engaged lawyers both before the D.R.T. and also before the DRAT. They could have urged for legal aid but they did not do so. So poverty and non- engagement of Counsel is only plea for plea's sake and has got no ground to stand. When they could understand that their plea of non-engagement of a Counsel is not maintainable, then before this Appellate Tribunal they have changed their plea to non-service of summons/notices, but they could not show by any way that they had no knowledge about the proceedings. Their knowledge was there from the very beginning and now it has been stated that they did not get notice from the D.R.T., Allahabad. That was not their plea in the petition filed under Section 22(2)(g) and when knowledge is there, even if there are irregularities in the service of summons and notices, then also no case can be made out as per the provisions under Order 9, Rule 3 of the CPC which is pari mareria, the same as that of under Section 22(2)(g) of the RDDBFI Act. Thus on merit also, the appellant has got no case. Hence, the appeal is rejected both on merit and also being barred by limitation.;