(1.) THIS appeal has been preferred against the order dated 16th December, 2004 passed by the learned Presiding Officer, D.R.T. Allahabad in M.A. No. 48/04, whereby and whereunder, the petition under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter shall be referred to as the RDDBFI Act) for setting aside the ex parte judgment and order dated 18th July, 2002 passed in T.A. No. 1622/2000 have been dismissed.
THIS appeal has a chequered history in the backdrop as will be revealed from the following facts as stated in brief:
It is a unique and peculiar case. The respondent Bank had filed a civil suit being original case No, 111/7/97 before the Civil Court at Kanpur for realization of the decretal amount to the tune of Rs. 8.66,38,615.24 together with interest, cost and other usual reliefs. For non-payment of fees the case was rejected vide order dated 3rd March, 1997. On 12th March, 1997 a review/restoration petition was filed under Section 151 of the CPC for recalling and setting aside of the order dated 3rd March, 1997 and for registering/restoring their suit. Accordingly vide order dated 13th March, 1997 the said review/restoration petition was registered as Misc. Case No. 45/74/97 and summons were issued as usual. By subsequent order the original case was clubbed together with Misc. Case. The case proceeded and on 17th October, 1998 an order was passed to the effect that argument was heard and 28th October, 1998 was fixed for orders and subsequently the case has been fixed on a future date on 26th December, 1998, but in the meantime as Tribunal was set up at Jabalpur and the case was transferred to D.R.T., Jabalpur but the D.R.T., Jabalpur did not entertain the case and as such it was sent back to the Civil Court for disposal and it was taken up by the Civil Court on 29th October, 1999 and then on miscellaneous case along with the original case proceeded further in the Civil Court and ultimately on 3rd January, 2004 the case of the plaintiff Bank was dismissed in absence of the steps being taken from the side of the plaintiff Bank. When the matter was being proceeded before the Civil Court, the respondent-Bank of India filed Original Application afresh before the D.R.T., Jabalpur on 17th October, 2000 against the defendant-appellants and others for recovery of Rs. 11,79,02,310.24 together with interest, cost and other usual reliefs. The said Original Application was numbered as Original Application No. 50/2000. When D.R.T., Allahabad was set up, then the said Original Application was transferred to the D.R.T., Allahabad on 28th September, 2000 and then the Original Application was renumbered as T.A. No. 1622/2000. From the order sheet of that original case i.e. T.A. No. 1622/2000, it appears that by order dated 20th December, 2000 the case was fixed for hearing on 21st December, 2001 and parties were asked to be informed. On 21st December, 2001 the Bank's Counsel appeared and order was passed for publication of notice within 10 days by applicant fixing 31st January, 2002, but before that date 31st December, 2001 the case was asked to be put up on 30th January, 2002, that means the date was preponed and perhaps the same was done without changing the date in the publication of notice itself. On 30th January, 2002 the Registrar passed the order that the defendants did not appear despite the publication and the case was placed before the Presiding Officer for argument on 10th July, 2002 and ultimately ex parte judgment was passed on 18th July, 2002. In the Original Application the respondent-Bank had changed the date of cause of action stating that further acknowledgement of debt was made by the defendants in the year 1997 after filing of the suit. It was also mentioned that the suit filed was withdrawn by the Bank with permission to file fresh application before the D.R.T. According to the appellants, these are all false statements as the proceeding before the Civil Court continued till 2004 even after passing of the ex parte order in the year 2002. The contentions of the appellants were that they had no knowledge either of the civil suit or of the Original Application filed as they had never been served with any notices or summons whatsoever. The addresses given of the appellants differ from each other as has been given in the civil suit and in the Original Application, although according to the knowledge of the Bank authorities, the appellants had shifted to Delhi long back, According to them, the appellants had severed connection with the company and the same was within the knowledge of the Bank's nominee, who was present at the time of such severance. Their knowledge came in the year 2004, when notices have been received regarding the D.R.C. case and it is admitted position that from such date of knowledge, the restoration petition was filed within 30 days.
(2.) The grounds for restoration were-
(a) There was no service of notices/summons on the appellants at any point of time.
(b) The ex parte decree passed is without jurisdiction when the civil suit was pending already before the Civil Judge at Kanpur on the same cause of action.
That the Bank had played fraud and deceit when they had never withdrawn the civil suit for filing fresh application before the Tribunal and that the date of cause of action was changed with ulterior motive to bring the case within the period of limitation.
(3.) THE contention of the Bank-respondent was that the appellants were in the knowledge of the proceeding before the Tribunal as they avoided to take the notice. THEre was proper publication of notice in the newspaper and as such there was definite knowledge of the appellants. It was also contended that the decree was passed jointly and severally against all the defendants but only 3 of the defendants have challenged the decree by filing of the restoration petition and the decree cannot be set aside piecemeal.;