Decided on May 16,2006



P.K.Deb, - (1.) THIS appeal has been preferred by the above named defendant No. 2-appellant against the order dated 12th July, 2005 passed by the learned Presiding Officer, D.R.T., Allahabad in M.A. No. 123/03, whereby and whereunder the restoration application filed by the appellant under Section 22(2)(g) of the RDDBFT Act for setting aside exparte judgment dated 29th November, 2002 in T.A. No. 1583/2000 has been dismissed.
(2.) The brief facts of the case are that the respondent-Bank /i.e. Bank of India filed an Original Application against seven defendants including the appellant as defendant No. 2 for realization of Rs. 49,42,468.85 together with interest, future and pendente lite and also other usual reliefs and the said case was registered as Original Application No. 417/94 before the D.R.T., Jabalpur. After D.R.T., Allahabad was formed, the case was transferred to D.R.T., Allahabad and was renumbered as T.A. No. 1583/ 2000. In that original case from D.R.T., Allahabad notices were sent to all the defendants under registered post and defendant Nos. 1 and 3 (who happens to be the son of defendant No. 2) appeared but did not contest. The case of the respondent Bank was that the defendant No. 1, M.D. Industries was a partnership firm having partners as defendant Nos. 2,3 and 4 who had taken loan from the Bank under different heads and defendant Nos. 5 to 7 had stood as guarantors. The partners are closely inter-related i.e. defendant No. 3 is the son of defendant No. 2 and defendant No. 4 is wife of defendant No. 2 and all the three main defendants are of the same address having residence at Village Sirsaiya, Post Office Pipraich in the District of Gorakhpur. On receipt of notice defendant No. 3 and the partnership firm defendant No. 1 had appeared as already stated in the original case, but for some reasons or other, they did not contest and allowed the case to run ex pane and then ended in exparte judgment dated 29th November, 2002. The appellant-defendant No. 2 had filed restoration petition belatedly in the month of May, 2003 stating that he had no knowledge about the proceedings and he came to know of the proceeding only on 12th May, 2003, when he got searched by his Lawyer about the proceeding at D.R.T., Allahabad on the basis of information being received on 28th April, 2003 by the son of deceased defendant No. 7 Meera Devi and then the restoration was filed within the period of limitation from the date c of knowledge. It is further contention of the defendant No. 2 appellant that he had no relation with his son defendant No. 3 for last 12 years and that he had no connection with any partnership firm nor he had visited ever the respondent Bank nor signed any documents and any signature bearing in the documents of the Bank are all forged and fabricated.
(3.) ALL the contentions of the appellant was controverted by the respondent Bank in their objection. It is their contention that the appellant had full knowledge about the whole proceeding on the basis of registered notice sent in the same address. Defendant Nos. 1 and 3 appeared and defendant No. 4 wife of the appellant also did not raise any objection regarding service of notice on her. In that way, there cannot be any reason to be believed that the notices had not been served on the defendant No. 2. Moreover, as an extra precaution, notices were published in Amar Ujala, which has got wide publication in the area of Gorakhpur, where the appellant resides. It has also been submitted that the documents of immovable property of the appellant along with his wife have been surrendered to the Bank creating equitable mortgage and in such circumstances, it cannot be said that the appellant had no knowledge about taking of loan, etc. or being a partner of the firm.;

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