Decided on July 31,2006

Vitik Pharma And Ors. Appellant
Punjab National Bank and Ors. Respondents


P.K.Deb, J. (Chairperson) - (1.) THIS appeal has been preferred against the judgment and order dated 12th January, 2005 passed by the learned Presiding Officer, D.R.T., Allahabad in miscellaneous application No. 75 of 2003 whereby and whereunder the application filed under Section 22(2)(g) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter shall be referred to as the "RDDBFI Act") for setting aside the ex parte judgment dated 11th November, 2002 passed in T.A. No. 1223 of 2000 have been rejected.
(2.) THE respondent had filed an original suit namely Original Application No. 444 of 1990 before the Civil Judge, Kanpur Nagar for decree of Rs. 15,51,137.25 against the appellants and others. In that original suit the defendants appeared and filed written statement and then due to operation of law the original suit was transferred to the D.R.T., Jabalpur and renumbered as T.A. No. 984 of 1999. After formation of D.R.T. at Allahabad the case was again transferred from Jabalpur and registered at Allahabad, D.R.T. as T.A, No. 1233 of 2000. After coming the case to the D.R.T., Allahabad notices were sent under registered post but except defendant No. 3 none appeared and ultimately defendant No. 3 also remained absent and the case was decreed ex parte. It should be further mentioned here that because of the default of the respondent Bank the case was once dismissed for default and after the same was revived, notices were again sent to the defendants by registered post in their addresses given in the original suit. After the suit was decreed and recovery certificate was issued, D.R.C. No. 377 of 2002 was started. According to the appellants, they first came to know regarding the T.A. No. 1233 of 2000, when they got notice from the Recovery Officer and inspected the records on 13th March, 2003, the restoration petition under Section 22(2)(g) of the RDDB & FI Act was filed on 2nd April, 2003 along with a petition under Section 5 of the Limitation Act, The plea of the appellants was that they were not served with notices as there was some change in address regarding two of the appellants petitioners and that upto the period of 2001 the appellants were negotiating with the Bank for a compromise as there was counter -claim along with the written statement. There was claim of the appellants of rent of the building belonging to the appellant where the Bank was occupying as a tenant. The said counter -claim was also dismissed when ex parte judgment was passed. The appellants' further plea was that they were deceived by the Bank regarding not giving information about the case, when negotiation was going on regarding settlement of claim and the amount of Rs. 50,000/ - was deposited by the appellants towards dues of the Bank as part payment as per terms of settlement.
(3.) THE case of the appellants have been vehemently opposed from the side of the respondent Bank stating that the notices and summons were always sent in the same address as that of the defendant No. 3, who happened to be one of the partners of the borrower firm and there was no reason to believe that the appellants could not get the notice/summons while residing in the same address and having fiduciary relationship with the defendant No. 3. Regarding the compromise it has been submitted that as per the proposal of the appellants once the settlement was sanctioned for a sum of Rs. 10 lacs and the appellants were to make balance payment within the time frame but no such payment was made and hence the settlement proposal failed. It was further stated that the counter -claim has got nothing to do in the present circumstances of the case when the rent and tenancy are totally outside the scope of the present dispute regarding non -payment of the loan amount. It was also contended that the appellants were always in the know of the proceedings of the suit and then T.A. No. 1233 of 2000 but did not contest the proceedings and even after negotiation failed regarding compromise they did not move the D.R.T. and sit over the same till the recovery proceedings were ensued. Thus, the restoration petition hopelessly barred by limitation.;

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