Decided on May 16,2006



P.K.Deb, - (1.) THIS appeal has been preferred against the order dated 30th April, 2003 passed by the then Presiding Officer, D.R.T., Lucknow in M.A. (T) No. 26/03, whereby and whereunder the application 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 ex parte judgment dated 29th April, 1999 in Original Application No. 89 /98 has been rejected.
(2.) The case of the appellant is that although they took loan from the respondent Bank, but proceeding before the D.R.T., Lucknow or at D.R.T., Jabalpur was never known to them as no notices had ever been served on the appellants in Original Application No. 89/98. It is further case of the appellant that the judgment dated 29th April, 1999 was served on the appellant on 9th July, 1999 and then and then only they came to know of the proceedings in Original Application after making inquiry in the office of the D.R.T., Lucknow through their Counsel and then filed restoration application on 2nd August, 1999 for setting aside of ex parte judgment as no notices were served on them. The respondent-Bank denied all allegations made in the restoration petition and their case was that in proper and correct address notices were sent to the appellants while the case was pending at D.R.T., Jabalpur and when no acknowledgement was received, then on deemed service the case proceeded ex parte and then ex parte decree was passed. In a cryptic order, learned Tribunal dismissed the restoration petition holding that the registered notices were sent to all the defendants in the month of October, 1999 fixing the date as 7th December, 1998 and when registered notices did not return unserved, service was presumed to be sufficient by the Registrar as well as by the Presiding Officer, D.R.T., Jabalpur and hence the case proceeded ex parte and after several dates judgment was delivered ex parte on 29th April, 1999 and it was further held that when copy of the judgment was received under registered post in the same address admittedly by the defendants, then presumption taken by the Registrar regarding service of notice was proper and justified and hence the restoration petition was rejected. In the appeal the defendants took plea that they had no knowledge about the proceeding and even after such proceeding they had moved the Bank for One Time Settlement as per R.B.I. guidelines and when Bank had asked for revised proposal, they had given revised proposal which is also pending with the Bank and the appellants were hopeful that the matter would be settled amicably. They filed restoration petition and when the same has been rejected by the impugned order, they moved the Hon'ble High Court, Allahabad against such dismissal in a writ petition i.e. W.P. No. 28580/03. But the writ petition was dismissed as alternative remedy was available and gave time frame for filing appeal before this Appellate Tribunal and hence the present appeal has been filed.
(3.) THE main ground in the appeal is that there is no scope of any presumption of service of registered notice as the records of Original Application tell otherwise. At the time of admission of appeal, records of Original Application and M.A. were called and it could be found from the records of Original Application that the Registrar and the Presiding Officer of D.R.T., Jabalpur were satisfied regarding service of notice on the defendants as defendants had not claimed the notice meaning thereby defendants had refused to take the notice. From the records of Original Application nothing could be found out as to the factual of refusal of notice by the appellants-defendants. THE office of the D.R.T., Lucknow was asked to find out any document found missing from the records regarding such refusal, but the report of the office came in negative.;

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