ALLYS PACKAGING Vs. STATE BANK OF INDIA
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) P.K.Deb, 1. This appeal has been preferred against the order dated 2.12.2004 passed by the learned Presiding Officer, DRT, Allahabad, in M.A. No. 14/04, whereby and whereunder the application filed by the appellants on 15.3.2004 referring the order passed by the Hon'ble Single Judge of the Allahabad High Court on 5.5.2003 in Writ Petition No. 19263/03 has been dismissed.
(2.) There seems to be a chequered history of the case. The respondent-State Bank of India filed the original application before the DRT, Allahabad for recovery of Rs. 20,64,039.44 against the appellants and the same was registered as O.A. No. 90/01. For absence of the appellant-defendants, the original application No. 90/01 was decided ex pane by the Tribunal against the defendant Nos. 1 to 7 on 22.3.2002. On 9.9.2002, the appellants preferred a restoration 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 Act) for setting aside the ex parte order passed on 22.3.2002 in O.A. No. 90/ 01. The said restoration application was registered as M.A. No. 133/02. The restoration application was allowed with the condition that the ex parte order in O.A. shall be set aside, if the defendant-applicants deposit a sum of Rs. 7.00 lacs with the Bank within a period of one month from the date of the order. The said order was passed on 3.2.2003. As the original application was practically allowed with a condition, the appellants went to the Hon'ble High Court for a relief of their grievances regarding the conditional order of allowance of the restoration petition. The said writ petition was numbered as 19263/03. Although any order passed by the Original Tribunal is appealable before the Appellate Tribunal but the said writ petition was entertained by the Hon'ble High Court and the writ petition was allowed and the order passed in the restoration petition i.e. M.A. No. 133/02 has been set aside and the restoration application was asked to be considered afresh on the merit regarding the sufficiency of the service of notice in O.A. No. 90/01. Some directions and observations have also been enumerated in that order of the Hon'ble High Court as to how the sufficiency of the service of notice was to be reconsidered. Although as per practice, such order of the Hon'ble High Court ought to have been sent to the DRT, Allahabad by the Registry of the High Court, but the same had not been done and after a along period, the appellants had brought the order of the High Court to the notice of the DRT, Allahabad, by an application dated 15.3.2004 and it was prayed in that petition that Misc. Application No. 133/02 should be reconsidered and fresh order should be passed on it, in compliance with the directions being given by the Hon'ble High Court in Writ Petition No. 19263/03. Instead of reopening Misc. Application No. 133/02, the application filed on 15.3.2005 was again registered" as Misc. Application No. 14/04 and as delay was there in bringing the High Court's order in time before the DRT, Allahabad, a condonation petition was also filed under Section 5 of the Limitation Act, although in my view such condonation petition was not at all necessary to be filed in the circumstances of the case. As I have already mentioned that it was the duty of the Registrar of the Hon'ble High Court to send a copy of the order to the DRT, Allahabad. Be it what it may, due to mistake or inadvertence the application dated 15.3.2004 was construed as an application under Section 22(2)(g) of the DRT Act and the matter proceeded accordingly. No further evidence or affidavit was filed by either of the parties and the case proceeded on the basis of the material on the record itself. By the impugned order the learned Presiding Officer, DRT, Allahabad, had taken notice of the Hon'ble Court's order and the whole of the order of the Hon'ble High Court was reproduced in the impugned order itself, but instead of considering M.A. No. 133/02 afresh as per directions and observations being made in Writ Petition No. 19263/ 03, the M.A. No. 14/04 has been decided mainly on the ground of delay in filing of the application which was not a subject in issue at all.
Delay in filing of the Misc. Application No. 14/04 has no relevance, rather the same was filed only with the necessity of bringing to the notice of the Tribunal the order passed in Writ Petition No. 19263/03. There might have been delay in filing such petition from the side of the appellant, but this delay is immaterial for the vital issue to be considered. The Hon'ble High Court's order was passed in presence of the learned Counsel for the Bank also and as such there remains the duty of the Bank also for curtailing the delay to bring into the notice of the Tribunal the order passed by the Hon'ble High Court in the writ petition. In that way, dismissal of Misc. Application No. 14/04 mainly on the ground of limitation is totally misconceived.
(3.) IN the impugned order a paragraph is there regarding the service of notice on the appellants in O.A. No. 90/01, but such observation/decision is not in conformity with the direction and observation made/given by the Hon'ble High Court in Writ Petition No. 19263/03. IN that way, it cannot be said that the impugned order is according to the direction given in the writ petition. Again being more enthusiastic, the appellants had rushed to the Hon'ble High Court against the impugned order also in Writ Petition No. 53539/04, but this time another Hon'ble Single Judge of the same High Court has refused to entertain the writ petition as alternative remedy was there and then the present appeal has been filed. Be it what it may, it appears that the parties to the proceeding before the Tribunal at Allahabad and also the learned Presiding Officer, DRT, Allahabad have proceeded in the matter on wrong conception and wrong angle. IN that way, without commenting anything on the merits of Misc. Application No. 133/02 regarding its fresh consideration as ordered by the Hon'ble High Court, this appeal is hereby allowed and the impugned order passed in M.A. No. 14/04 is hereby set aside. The learned Presiding Officer, DRT, Allahabad is hereby directed to reopen the Misc. Application No. 133/02 and after giving notice to both the parties, re-adjudicate the same on the merits as per the direction given by the Hon'ble High Court in Writ Petition No. 19263/03.;
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