S.D.Singh, Presiding Officer -
(1.) THE miscellaneous applicants above named have filed miscellaneous application (numbered as M. A. 17/2004 in Original Application No. 122 of 1998) for setting aside the ex parte judgment and order dated 17th September, 2003 and the certificate dated 22nd September, 2003 in Original Application 122/1998 along with condonation of delay petition, praying inter alia therein, to condone the delay in instituting the said miscellaneous application. The opposite party No. 1, Bank of Rajasthan Ltd. has Tiled affidavits in opposition to the miscellaneous application and the petition for condonation of delay filed by the miscellaneous applicants. The miscellaneous applicants have filed affidavit in reply to the affidavit in opposition of the opposite party Bank, filed against the petition of the miscellaneous applicants for condonation of delay. The brief facts of the case as narrated by the miscellaneous applicants, relevant for the disposal of the miscellaneous application and the petition for condonation of delay, are that the miscellaneous applicants are the defendant Nos. 2, 3, 9 and 11 respectively in Original Application No. 122/1998. They engaged at the first instance the learned Advocate Mr. S.S. Bhutoria. On 22nd March 1999, as stated in the miscellaneous application, the learned Advocate Mr. D. Basu Roy entered appearance in the said Original Application No. 122 of 1998 on behalf of the miscellaneous applicant No. 1 (defendant No, 2) in the Original Application, but in proceeding recorded vide order No. 3 dated 22nd March. 1999, his appearance has been recorded for respondent No. 4 i.e. defendant No. 4.
(2.) DUE to irregular appearance of learned Advocate Mr. Bhutoria and Mr. D. Basu Roy, the miscellaneous applicants on or about the beginning of May, 2002 engaged another learned Advocate Mr. Debasish Mukherjee who appeared on 7th May, 2002 on behalf of the petitioner in the said Original Application and made application for recalling the ex parte hearing and filed written statement and disputed the liability to make payment, claimed against them. The ex parte order was recalled and in pursuance of order of this Tribunal, the applicant -Bank (opposite party No. 1 in the miscellaneous application) filed evidence on affidavit on 21th April, 2003. The miscellaneous applicants has staled that although they duly provided their Advocate, Mr. Debasish Mukherjee, with necessary papers, documents, instructions and materials to file the evidence on affidavit learned Advocate Mr. D. Mukherjee never filed the evidence on affidavit nor informed the miscellaneous applicants that such evidence on affidavit had to be filed by the miscellaneous applicants. The learned Advocate Mr. Debasish Mukherjee last appeared on behalf of the miscellaneous applicants on 21th April, 2003. He failed to appear on 12th June, 2003, 14th July, 2003 and 20th August, 2003, as a consequence whereof the judgment and order in the said Original Application was passed against the miscellaneous applicants on 17th September, 2003. The miscellaneous applicants have stated that they absolutely had no knowledge of the facts that the said Original Application had been decreed inter alia on the 17th September, 2003. They came to learn about such decree for the first time on 19th January, 2004 when they received intimation of such facts from this Tribunal. Immediately upon receiving such intimation, the miscellaneous applicants contacted their learned Advocate, Mr. Debasish Mukherjee who held out to the miscellaneous applicants that after 21st April, 2003 he had mistakenly failed to post the next date of hearing of the said Original Application in his diary and consequently lost sight of and/or failed to follow up the said Original Application leading to the passing of the said decree (judgment and order) in the Original Application and that he ascertained the correct facts and circumstances of the case by immedisuely applying for the certified copy of the entire order -sheet of the Original Application. The miscellaneous applicants have further stated that upon obtaining the certified copy of the order -sheet, they realized that their learned Advocate had not appeared before the Tribunal on 12th June, 2003, 14th July, 2003 and 20th August, 2003 leading to the ex parte decree. Consequently on or about 2nd March, 2004 the miscellaneous applicants took the charge from the learned Advocate Mr. Debasish Mukherjee and engaged the present Advocate -on -record that necessary steps be forthwith taken to recall the ex parte decree dated 17th September, 2003. They engaged their present learned Advocate -on -rccord on 15th March. 2004 whereupon the misc. application has been prepared and filed at the earliest possible opportunity. They have further stated that they have a substantial defence to the claim of the opposite party Bank (applicant in the said Original Application) which have been contended in their written statement. They have contended that due to the failure and laches on the part of the erstwhile learned Advocate -on -record, the miscellaneous applicants were neither able to cross -examine nor to file evidence on affidavit and to argue the case. They have further contended that in para 6 of the judgment dated 17th September, 2003 in the aforesaid Original Application it has been held that the learned Advocates for both sides were heard and the records of the case examined. But as the learned Advocate Mr. D. Mukherjee never appeared before the Tribunal on the last three hearings and did not file any evidence on affidavit nor advanced any arguments before the Tribunal, the Tribunal by mistake recorded in the judgment that both sides have been heard. They have further contended that the points raised by them in their written statement have not been dealt with or adjudicated upon by the judgment dated 17th September, 2003.
(3.) IN favour of condoning the delay in instituting the miscellaneous application, the miscellaneous applicants have explained the delay. They have contended that in terms of the instruction of the petitioner, the erstwhile learned Advocate Mr. D. Mukherjee applied for the certified copy of the order -sheet on 22nd January, 2004 and obtained the same on 25lh February, 2004. Upon obtaining the certified copy of the order -sheet, the miscellaneous applicants found that their learned Advocate -on -record did not appear before the Tribunal on 12th June, 2003, 14th July, 2003 and 20th August, 2003 leading to the passing of the said decree on 17th September, 2003. The miscellaneous applicants consequently decided to obtain changing from their erstwhile Advocate -on -record in favour of their present Advocate -on -record. Such change or no -objection was granted on 2nd March, 2004. Although no objection was granted to the erstwhile Advocatc -on -record of the miscellaneous applicants to their present learned Advocatc -on -record on 2nd March, 2004, the papers and documents in connection with the matters were not made over by the erstwhile learned Advocate -on -record of the miscellaneous applicants to their present learned Advocate -on -record till 15th March, 2004. The present learned Advocate -on -record of the miscellaneous applicants received the papers on or about 15th March, 2004, immediately prepared and filed a petition inter alia for setting aside, the decree and certificate dated 17th September, 2003 and 22nd September. 2003 respectively. In the circumstances there has been a delay of 186 days in filing the miscellaneous application. Out of the said period of 186 days, the miscellaneous applicants were not even aware of the decree for a period of 124 days i.e. between ! 7th September. 2003. being the date of passing the decree and 19th January. 2004 being the date on which intimation of the decree was received for the first time by the miscellaneous applicants. They have contended that they are not guilty of any delay or laches in the matter and ought not to be made to suffer for the fault if any, on the part of their erstwhile learned Advocate -on -record.;