Decided on March 06,2006

Kamta Nath Pandey And Anr. Appellant


P.K.Deb, J. (Chairperson) - (1.) BOTH these appeals have been heard analogous and are being disposed of analogously and the parties are the same and the issues involved are also almost the same and similar in nature.
(2.) APPEAL No. R -310/03 has been preferred by the above named appellants against the order dated 13th May, 2003 passed by the then Presiding Officer, D.R.T., Allahabad in M.A. No. 181/02, whereby and whereunder the restoration petition filed 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 setting aside the final order passed in T. A. No. 170/2000 on 27th August, 2002 has been dismissed. The appellants were the applicants in that M.A. and they were defendant Nos. 3 and 4 in T.A. No. 170/2000. Both the appellants had appeared before the Tribunal at Allahabad when the case was transferred from the D.R.T., Jabalpur. The original suit was filed before the Civil Judge. Mirzapur by the respondent Bank claiming Rs. 1,29,13,369.64 together with interest at the contracted rate pendente lite and future and also with cost and other usual reliefs. In the suit defendant No. 2 was Triveni Nath Pandey, who died during the pendency of the proceeding before the D.R.T., Allahabad and his heir Smt. Vidya Pandey, widow has been substituted in his place as is revealed from the records of the T.A. No. 170/2000. The appellants had appeared before the Tribunal through their Advocate Mr. Jauhari and on 2 -3 occasions he took time for filing written statement and also seeking direction from the Tribunal to supply them with the copy of the statement of accounts. But no such direction was given by the Tribunal and ultimately on 1st August, 2002 the appellant's Counsel filed a petition for dismissal of the claim of the Bank in limine as proper statement of accounts have not been filed nor being given to the appellants. That petition was rejected on the very date of the filing of the petition and the learned Presiding Officer wanted to hear the arguments of the case on the same day and order of rejection of the petition was passed not in the order sheet but on the body of the application itself. The case was deferred to 2nd August, 2002 and on that date a further application was filed by the defence Counsel for and on behalf of the appellants that they may be granted two weeks' time to file written statement as statement of accounts as filed in the suit had been supplied to the appellants only on 31st July, 2002 but no order was passed on that petition and the case was heard ex parte and then judgment was delivered on 28th August, 2002. It further appears that the date of judgment was being altered in the order sheet itself by cutting the previous date. According to the appellants they relied on their Advocate, who assured that after the copy of the statement of accounts being received, the Counsel would consult them and then file written statement in the case, but after the case was disposed of ex parte, then they have never been informed of the disposal of the case and only in the month of September, when they came to the D.R.T., Allahabad, they heard that the ex parte decree was passed and then after engaging another lawyer, they inspected the records of the case and then filed the restoration petition, but there was some delay in filing of the restoration petition as the pairvikar of the case i.e. Madho Prasad was suffering from ailment and soon after recovery the restoration petition was Tiled. A medical certificate was also attached to the restoration petition. For and on behalf of the respondent Bank, they raised objection towards maintainability of the restoration petition alleging that the appellants had appeared in the case and as such the case was never being ex parte one. This contention has got no logic. Appearance of the appellants was there through their Advocate, but they had not been given chance to file written statement and then the case was heard ex parte and as such restoration petition was maintainable. Regarding the other factual aspect as has been stated in the restoration petition as mentioned above, only denial has been made from the side of the respondent Bank. The learned Tribunal had disposed of the restoration petition mechanically holding that the restoration petition is barred by limitation without considering the main ingredients regarding debarring of the appellants due to sufficient cause in contesting the case. It was alleged by the appellants that even if there was some negligence on part of the lawyer of the appellants, the same should not be thrust upon the appellant as they had put all reliance and faith on their Advocate. It further appears that the copy of judgment had also not been sent to the appellants as required under the D.R.T. Procedure Rules.
(3.) APPEAL No. R -311/03 has been filed by the same appellants against the order dated 13th May, 2003 passed in M.A. No. 184/02 filed by the same appellants for setting aside the ex parte judgment and order passed in T.A. No. 169/2000 dated 27th August, 2002. The appellant -applicants were defendant Nos. 2 and 5 in the original case and they had only appeared in the case through their Advocate Mr. Jauhari and it appears that both the cases between the same parties were fixed on the same date before the Tribunal, other defendants did not appear. Defendant No. 4 in this case was Triveni Nath Pandey. who died during the pendency of the proceeding before the D.R.T., Allahabad after its transfer from the D.R.T., Jabalpur. The case was originally filed before the Civil Court by the Bank for recovery of Rs. 57,49,864.15 together with contracted rate of interest for pendente lite and future along with cost and other usual reliefs. In this case also only the appellants had put in appearance, other defendants did not appear and other facts remain the same as has been enumerated above in respect of the other appeal.;

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