Decided on January 18,2006



P.K.Deb, - (1.) THIS appeal has been preferred against the order dated 29.9,2004 passed by the learned Presiding Officer, DRT, Jabalpur in Misc. Application No. 9/03, whereby and whereunder the application filed by respondents 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) has been allowed by setting aside the ex pane judgment passed on 21.11.2002 in O.A. No. 145/02. The brief facts of the case are as follows: The appellant Bank had filed the above mentioned original application i.e. O.A. No. 145/02 before the DRT, Jabalpur in recovery of Rs. 18,82,854.57 against the applicants as far as non-payment of loan by the respondents is concerned. Notices in the O.A. were sent by registered post fixing the case on 1.10.2002 but notices were received back unserved with the postal peon's remark that the appellant Nos. 2 and 3 were on pilgrimage. Then on the plea of the appellant Bank that the respondents were evading the service of notice, order was passed for publication of notice in Dainik Bhaskar, Jabalpur Edition fixing 25.11.2002 as a next date of appearance. On publication the notices were accepted to be served and then the case proceeded ex pane and ultimately recovery certificate was ordered to be allowed. According to the respondents, they received copy of the ex parts judgment on 7.1.2003 and after due information being taken, they filed the restoration petition under Section 22(2)(g) of the Act for setting aside of the ex pane judgment. Their plea was that they never received any summons or notices, firstly they were outside their residence when the registered notices were sent and during the period of publication of notices, respondent No. 2 was under treatment at Bhopal for the period from 17.10.2002 to 25.10.2002 and his wife-appellant No. 3 was also with him and the publication of notice at Dainik Bhaskar, Jabalpur Edition had no circulation at Bhopal and as such the notices could never be served and hence the petition for restoration.
(2.) The respondents in this appeal have not appeared although notices have been served through Dasti service and excess period of limitation has been condoned by order dated 10.1.2006. The appeal had to be heard ex pane as none appeared for and on behalf of the respondents. Mr. Rajesh Maindiretta, learned Counsel for the appellant has attacked the impugned order on the ground that there was proper service of notice through publication as provided under Order 5 Rule 20 of the C.P.C. and the learned Tribunal committed error in holding that publication was not proper. According to the learned Counsel, it was never brought to the notice of the appellant Bank that the respondents had gone away from their residence during the period as they have stated and that Dainik Bhaskar although published from Jabalpur has got circulation at Bhopal also.
(3.) AT the very outset the maintainability of the appeal is to be decided. The restoration petition has been filed under Section 22(2)(g) of the DRT Act, which is para materia the same as Order 9 Rule 13 of the C.P.C. and it has been specifically mentioned under Section 22(2) of the Act that discharging of the functions of the Tribunal under the provisions of Section 22(2), the Tribunal shall be vested with all the powers as that of a Civil Court under the Code of Civil Procedure and the provision runs as follows: 22(2). The Tribunal and the appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1998 while trying a suit, in respect of the following matters.... (g). Setting aside any order of dismissal of any application for default or any order passed by it ex parte.;

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