(1.) BOTH the appeals have been heard analogous and judgment is also being passed in common as the matter in issue between the parties are the same and arise out of the same Original Application in T.A. No. 380/02. R-482/05 has been preferred by the appellant Nos. 1, 2 and 3, who were originally defendant Nos. 2, 3 and 6 in Original Application while R-519/05 has been preferred by three appellants who were originally defendant Nos. 1, 4 and 5 respectively in the original application. R-482/05 is against the dismissal order dated 23rd December, 2004 passed in M.A. No. 103/03, whereby and whereunder the application filed by the appellants i.e. defendant Nos. 2,3 and 7 for setting aside the ex pane judgment passed on 13th March, 2003 in T.A. No. 380/02, while R519/ 05 has been preferred by the original defendant Nos. 1, 4 and 5 and applicants in misc. application No. 69/03 disposed of on 28th January, 2004 for review of. the order passed in misc. application being Review Application No. 01/04, which has been dismissed.
(2.) Both the cases have been disposed of by common order passed on 23rd December, 2004. Originally a single appeal was filed being appeal No. R-482/05 against the common judgment but when defect was pointed out by this Tribunal, then a separate appeal was filed being appeal No. 519/05 and in the process there was delay in this appeal for which a petition under Section 5 of the Limitation Act was filed. That limitation matter had also been heard along with the hearing of the appeals. It was the contention in the petition filed under Section 5 of the Limitation Act that due to wrong legal advice a single appeal was filed and when the defect was pointed out by this Appellate Tribunal, then only Appeal No. 519/05 was filed and in the process delay was made, which was not at all intentionally. In the circumstances, delay is hereby condoned.
This case is an example as to how the borrowers taking advantage of legal proceedings and technicalities are making all efforts to overcome their liability to pay the public money. An Original Application was filed initially at the D.R.T., Allahabad being registered as Original Application No. 112/01 for recovery of a huge sum amounting to Rs. 90 lacs and odd against the defendant-appellants. In the original Tribunal notices were sent to all the defendants i.e. the appellants in both the cases under registered cover but none of the appellants appeared and so publication was made in newspaper and then only defendant No. 4 appeared and filed a petition that the defendants are going to make compromise. On the next date defendant Nos. 1 and 5 had also appeared but none of them had filed written statements and then they went on taking time on the plea of compromise, ultimately there was notification of setting up of Tribunal at Lucknow and then in presence of both the parties order was passed for appearance before the D.R.T., Lucknow fixing even a date, then the case ultimately transferred to the D.R.T., Lucknow and again registered notices were issued to both the parties. Respondent-Bank appeared but although notices were sent to proper and correct address of the defendant-appellants, they preferred not to appear and hence order was passed to proceed ex parte against the defendants and ultimately the case was heard ex parte and then judgment was delivered on 13th March, 2003, Against that ex pane judgment defendant Nos. 1, 4 and 5 who had already appeared in the Original Application before the D.R.T., Allahabad had filed an application under Section 22(2)(g) of the RDDBFI Act for setting aside ex parte judgment passed on 13th March, 2003 in T.A. No. 380/02 (registration number after the transfer to the D.R.T., Lucknow.) That application was numbered as miscellaneous application No. 69/03. The plea was that after the case has been transferred to the D.R.T., Lucknow from Allahabad, they had not received any notice and as such they remained in dark about passing of the judgment against them. Objection was filed against that application by the Bank stating that the applicant/defendant Nos. 1, 4 and 5 and other defendants were all cunning persons and were related to each other closely and of the same family, that they approached the Bank for coming to a settlement on payment of Rs. 80.00 lacs to the Bank. Bank agreed to that proposal but then the defendants turned back. The Bank had made reminders on such compromise issue to the defendants but still then they kept mum. All these happened during the pendency of the Original Application before the D.R.T., Allahabad and it has further been contended by the Bank that the defendants with ulterior motive not to pay the public money kept themselves absent during the proceedings at Lucknow on transfer and allowed the case to be decided ex pane with an obvious motive to come up with restoration petition afterwards, as a mode of lingering and delaying tactics. After hearing the parties and considering the rival contentions made by the parties, miscellaneous application No. 69/03 was dismissed vide order dated 28th January, 2004 giving proper reasons. The cases of both the parties were considered in their proper perspective. It appears that the defendant Nos. 1,4 and 5 were present through their Counsel, when the case was transferred from Allahabad to Lucknow, then there was a paper notification regarding transfer of cases to Lucknow. Then the notices were sent to all the defendants by registered Post to their proper and correct address and still then when the defendant Nos. 1, 4 and 5 and other defendants did not appear, then the ex parte judgment was passed.
(3.) AGAINST this order dated 28th January, 2004 a review application has been filed being R.A. No. 01/04 and the same has also been disposed of along with the other application filed by the other defendants i.e. the defendant Nos. 2,3 and 7 for restoration of original case i.e. T.A. No. 380/02. In Misc. Application No. 103/03 the plea of defendant Nos. 2, 3 and 7 is the same as that of defendant Nos. 1, 4 and 5 as raised in misc. application No. 69/03. They have no grievance regarding the proceedings while pending before the D.R.T., Allahabad. Their only plea is that they had no notice of the transfer of the case to the D.R.T., Lucknow and as such they could not appear and hence exparte judgment was passed. It has already been mentioned in earlier para that while the case was transferred from the D.R.T., Allahabad to the D.R.T., Lucknow, there was paper publication and after the case was received at Lucknow notices were sent to all the defendants including defendant Nos. 2, 3 and 7 under registered cover in the same address, in which notices were sent earlier in Allahabad Tribunal. There is no plea from the side of the appellants that their address have been changed or that notices were not sent in their correct address. Their only plea is that when notices sent under registered cover had not been returned, then there was mandatory duty on the Tribunal to publish the notices in newspaper as contemplated under Rule 23(viii) of the D.R.T., (Procedure) Rules, but no such steps were taken either from the side of the Tribunal or from the side of the Bank and that the case was disposed of hurriedly.;