Decided on November 09,2005

L.K. Pandey and Ors. Appellant
Bank of Baroda And Ors. Respondents


P.K. Deb, J. - (1.) THIS appeal has been preferred against the order dated 17th May, 2004 passed by the DRT, Allahabad in M. A. No. 130/03, whereby and whereunder the petition filed by the appellants/defendants 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 restoration of Original Application No. 72/02 by setting aside the ex pane judgment has been dismissed.
(2.) THE appellants were defendant Nos. 3 to 6 in the Original Application No. 72/2000, wherein the respondent Bank of Baroda had claimed recovery of a sum of Rs. 1,56,14,402,65. Notices were sent on all the defendants including the firm Nirmal Organics (P) Ltd. and its Chairman Mr. R.K. Pandey as respondent/defendant No. 2 and also against Mr. Kakendu Das as defendant No. 7 and U.P. Financial Corporation as defendant No. 8. Notices were first sent under registered post. When the notices did not return sent under registered post, then publication was made in local daily Aaj having wide circulation at Allahabad and then the defendant Nos. 1, 2 and 7 appeared and practically the claim was contested by defendant No. 2 for himself and on behalf of defendant No. 1 the main borrower and ultimately the original application was decreed vide order dated 4th June, 2003 in toto against all defendants including the appellants. It should be mentioned here that the appellants did not appear, the original application proceeded ex parte against them. Soon after decree was passed, the appellants came up with a petition under Section 22(2)(g) of the Act for setting aside ex pane judgment and order for recovery on the ground that no notices/summons were ever served on them. Their case was that defendant No. 3 i.e. appellant No. 1 ordinarily resides at Hyderabad and other appellants, who are his near and dear ones were residing with him at Hyderabad at the relevant time, when the notices/summons, publication were made. It was stated that as appellant No. 1 was suffering from ailment, the other appellants had gone to see him at Hyderabad and in this respect individual affidavits have been filed by each of the appellants regarding their residence for the time being at Hyderabad. It is their further contention that soon after the decree was passed, the appellant No. 1 made a query in the Bank asking for his balance sheet of the accounts. Then and then only he came to know that ex parte judgment has been passed. No name, nothing of this sort has been given as to who had given him information regarding ex parte judgment. All these contentions made by the parties in the restoration petition under Section 22(2)(g) of the Act have been denied by the respondent Bank by filing written objection. It was their contention that the appellants being the family members and near and dear ones of defendant No. 2 R.K. Pandey, who appeared on notices being issued and publication being made, there cannot be any earthly reason to presume or hold that the appellants had no information about the proceedings of the Original Application No. 72 of 2002. It was also the contention of the Bank that the Bank authorities had never been informed by the appellants about leaving their ordinary residence and going to Hyderabad as such notice/summons by registered post were sent in their proper address as was available with the Bank and this plea of residing at Hyderabad is nothing, but a concocted story for filing of restoration petition. On rival contentions of both the parties, the learned Tribunal held that the appellants had the knowledge about the proceedings in the original application and with an ulterior motive they remained absent in the case only to file restoration petition so that the matter can be delayed. Mr. R.P. Agarwal appearing for and on behalf of the appellants has strenuously argued attacking the impugned order that the decision arrived at by the Tribunal was only on presumption and surmises and not based on facts. He was arguing on the technicalities regarding sending of summons and publication etc. and in support of his contention, he had filed several judgments of the Allahabad High Court, which may be enumerated below: (a) Commissioner of Sales Tax v. Durga Prasad and Ram Nath Jewellers 2004 U.P.T.C. 49. (b) Om Prakash v. Prakash Chand and Ors. . (c) Ramakant Upamanyu v. State Bank of India II (2003) BC 122 (DRAT) : 2003(3) Bank C.L.R. 295 (DRAT, All). (d) Smt. Motia Rani v. Punjab National Bank I (2004) BC 170 (DRAT) : 2004 (1) Bank C.L.R. 352 (DRAT, All). (e) Industrial Area Naini v. State Bank of India W.P. No. 19263 of 2003.
(3.) ALL those rulings are regarding the irregularity in the service of summons/ notices and such irregularity was held to be sustainable for the purpose of setting aside of exparte decree on the basis of restoration petition. From the records of the original application, it could be found that on original application being filed on 23rd March, 2002, the Registrar had asked for issuance of notice to the defendants. On the next date fixed i.e. 20th May, 2002, an order was passed for publication of notices as the defendants did not appear and on a subsequent date when defendant Nos. 7, 1 and 2 appeared, defendant No. 2 filed reply for himself and on behalf of the company i.e. defendant No. 1, then the case proceeded before the Presiding Officer.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.