Decided on July 31,2006

Decora Carpet And Ors. Appellant
State Bank of India And Ors. Respondents


P.K.Deb, J. (Chairperson) - (1.) THIS appeal has been preferred against the order dated 28th January, 2005 passed by the leaned Presiding Officer, D.R.T.. Allahabad in case No. M.A. No. 97 of 2003, whereby and whereunder the restoration application filed by the appellants under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act (henceforth shall be referred to as "RDDBFI Act") for setting aside of the ex parte judgment passed in T.A. No. 160 of 2000 has been dismissed. The appellants were defendant Nos. 1 to 6 in the original case.
(2.) THE admitted position is that the respondent Bank had filed an original suit being original suit No. 92 of 1991 before the Civil Judge, Mirzapur for recovery of Rs. 28,75,273.58 together with future and pendente lite interest and other usual reliefs. In the original suit the appellant -defendants had put in appearance and filed their written statement and contested the case on day -to -day basis. After coming into force of the Act, the original suit was transferred to the D.R.T., Jabalpur and therein the case was further registered as T.A. No. 629 of 1998. Before the Jabalpur Tribunal, the appellants, it appeared, had made an attempt to put in appearance through one Advocate but the appearance could not be accepted as the lawyer concerned had not filed Vakalatnama in their favour. Subsequently, on establishment of D.R.T., Allahabad the case was again transferred and was renumbered as T.A. No. 160 of 2000. On receipt of the records from D.R.T., Jabalpur notices were sent through registered post by the Registrar of the Tribunal but when the notices did not return after service then publication was made in a Hindi Daily which had wide circulation in the District of Mirzapur, where the defendant -appellants reside. After such publication defendant No. 6 who happened to be the guarantor appeared and contested the case. It must be mentioned here that the defendant No. 6 is also of the same area of Mirzapur where the appellants reside. After due contest by defendant No. 6 the original case was decreed and recovery certificate was asked to be issued by the ex parte judgment against the appellants on 21st April, 2003. Soon after the ex parte judgment was passed the appellants as per their assertion came to know of the ex parte judgment on 23rd April, 2003 and thus they filed the restoration petition, which was registered as M.A. No. 97 of 2003. The contentions of the appellants petitioners were that they have knowledge about the transfer of the original suit from Mirzapur to Jabalpur, although such transfer was made behind their back. They made search in the Civil Court, Jabalpur but could not trace out the case. They had no knowledge of the further transfer of the case from Jabalpur to D.R.T., Allahabad and they did not receive any notice from D.R.T., Allahabad and that during publication the appellants were residing at Delhi and as such they could not get any knowledge of such publication in the daily having circulation at Mirzapur.
(3.) ALL the contentions of the appellant -petitioners were objected vehemently by the respondent Bank. Their contention was that the appellants have the knowledge of transfer of the case from Mirzapur Civil Court to D.R.T., Jabalpur and as such there was no reason for the appellants to search the case in the Civil Court at Jabalpur. Their further contention is that the appellants made attempt to appear before the D.R.T., Jabalpur through an Advocate but such appearance was not accepted as the lawyer had no valid Vakalatnama. After transfer to D.R.T., Allahabad notices were sent through registered post in proper and correct addresses but still the appellants did not appear, although, after publication the defendant No. 6 had appeared in the original case. The other contentions about the knowledge of the ex parte judgment, soon after i.e. 21st April, 2003 is only a concocted and manufactured story.;

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