(1.) THIS appeal has been preferred against the order dated 15th July, 2004 passed by the learned Presiding Officer, D.R.T., Allahabad in case No. M.A. 11/04, whereby and whereunder the restoration petition filed by the appellant-defendant No. 1 for setting aside ex parte decree passed on 11th January, 2002 by the Tribunal in Original Application No. 56/2000 has been dismissed.
(2.) The brief facts of the case is that the respondent-PNB filed the Original Application No. 56/2000 for recovery of a sum of Rs. 52,38,938.14 against three defendants, who were arrayed in the following manner:
1. Kshetriya Shri Gandhi Ashram situated at Chowk Fatchpur through its Secretary.
2. Kshetriya Shri Gandhi. Ashram situated at Fatehpur through its Administrator, 359, Mutthiganj, Allahabad.
Khadi and Village Industries Commission having Regional Office at Lekhraj Market, Faizabad Road, Indira Nagar, Lucknow.
3. The borrower according to the Bank was Kshetriya Shri Gandhi Ashram unit situated at Fatehpur, who took loan from the Bank through its Secretary and as no repayment was made, the case was filed. On the face of the records, the borrower Shri Gandhi Ashram was shown to be represented by Secretary without any name mentioned therein and also by Administrator, no name being mentioned therein, defendant No. 3 was not loanee and it appeared and filed reply and the Tribunal found that only defendant Nos. 1 and 2 were liable to make payment to the Bank, hence recovery certificate was allowed after adjustment of the F.D.R. amount lying with the Bank of Shri Gandhi Ashram saying it to be pledged with the Bank.
(3.) ACCORDING to the appellant no notice was ever served on the appellant and the Original Application proceeded ex pane without notice to the Secretary of the Gandhi Ashram, who happens to be Mr. Shiv Ratan Gupta. On the face of records, it appears that Shri Gandhi Ashram was said to be represented by the Secretary as defendant No. 1 and by its Administrator as defendant. No. 2, but no name of the Secretary or the Administrator were ever being given in the records of the Original Application. There seems to be some internal conflict in the management of the unit of Shri Gandhi Ashram. Previous Secretary was one Shri Rambhag Yadav at whose time loan was taken and he was the person, who had signed the documents for and on behalf of Shri Gandhi Ashram in favour of the Bank, but although it is not stated anything in the Original Application, it appears from the contents in the memo of appeal and reply thereof that after tenure of Rambhag Yadav the appellant Shiv Ratan was elected as Secretary of the unit, but his election was challenged and then by the Regional Office an Administrator was appointed but then the election of Shiv Ratan Gupta was upheld by the Registrar of the Co-operative Society. Be it what it may, these are all internal matters. ACCORDING to the appellant, they came to know of the Original Application and its exparte decree when D.R.C. proceeding started and the property of the unit was being attached, etc. and then they filed the restoration petition along with condonation petition. The said restoration petition was contested by the respondent Bank, but nowhere it could be shown that the appellant was ever being served of the notice or the summons in the Original Application. But the learned Presiding Officer on assumption and presumption and on the basis of some reported judgments had rejected the restoration petition without going deep into the factual aspect of the matter in issue. Hence the present appeal has been filed, but the present appeal has also been filed belatedly. It was filed on 27th September, 2004 and in the condonation petition it has been stated that as per records of Original Application argument was concluded on 15th July, 2004 and the order v/as reserved and the next two days being Saturday and Sunday judgment was actually published on 19th July, 2004, but it was shown to have been delivered on 15th July, 2004, On 19th July, 2004 it should be construed to be the knowledge of the order passed, From 18th August, 2004 to 23rd September, 2004, the appellant Shiv Ratan Gupta was under medical treatment for sufferance of jaundice and he could resume his work on 23rd September, 2004 and then he took advice from Counsel and then filed the appeal on 27th September, 2004. If from the date of knowledge calculated excluding the period of ailment as per the medical certificate attached, then the appeal is within the period of 45 days. Although such condonation petition was challenged from the side of the Bank, but regarding the contents of petition filed under Section 5 of the Limitation Act, nothing could be shown from the side of the Bank that the story given by the appellant is false and concocted. By saying it only a concocted and manufactured story, the veracity of the contents cannot be brushed aside, rather from the contents I find that the appellant could make out a sufficient ground for condonation of delay. Hence, the prayer for condonation is allowed.;