Decided on December 04,2007



M.C.Jain, - (1.) THE appellants are in appeal against the order dated 19.9.2006 passed by the Tribunal below.
(2.) The relevant facts lie within a short compass. O.A. 65/2004 titled as IREDA v. Circars Power Industries Ltd. and Ors. was instituted by the respondent herein under Section 19 of the RDDBFI Act for the recovery of Rs. 14,59,67,550/- with pendente lite and future interest as also costs. The appellants herein were defendants in the O.A. Summonses had been issued to them and they were served. However, no written statement was filed by them in spite of nine opportunities. Ultimately, on 5.9.2005, order for proceeding ex parte against all of them was passed and final order was passed on 26.4.2006 decreeing the suit for recovery of Rs. 14,59,67,550/-along with pendente lite and future interest @ 10% p.a. from the date of filing of the O.A. and costs. They made a restoration application under Order 9 Rule 13, CPC read with Section 22(2)(g) of the RDDBFI Act for setting aside the ex parte final order, together with delay condonation application as there was a delay of 37 days. Their contention was that they had entrusted the matter to a Counsel at Hyderabad to do the needful in the matter and defend the case before the Tribunal. As per his advice, the matter, in turn, was entrusted to one Mr. P. Nagesh, Advocate in Delhi to defend the interest of the defendants in the O.A. He appeared before the Tribunal on 8.11.2004 and the matter was adjourned by the Tribunal from time-to-time for filing WS by the defendants. Neither the Advocate at Hyderabad nor Mr. P. Nagesh informed the defendants about the orders passed by the Tribunal. The Company representative Mr. Swamaya had also not apprised of the correct position to them about the orders passed by the Tribunal from time-to-time. He left the service of the Company in the month of August 2005 without informing anything to them. Nobody was present on behalf of the defendants on 5.9.2005 and they were ordered to be proceeded against ex parte. Subsequently, an ex parte final order was also passed against them on 26.4.2006. A copy of the final order dated 26.4.2006 was received by them on 29.5.2006 whereby they came to know about the passing of the said ex parte final order and then they immediately, on 3.5.2006, had a discussion with Mr. P. Nagesh over phone. Ultimately, Mr. P. Nagesh took no interest and the matter was entrusted to the present Advocate who inspected the records of the Tribunal on 26.6.2006 and then made restoration application along with delay condonation application. The delay, according to them, was neither wilful nor wanton. With such pleas, the restoration was applied for with delay condonation application. WS was also filed on behalf of the company along with restoration application. The restoration was opposed by the respondent-Institution.
(3.) THE Tribunal below took note of the fact that in the written statement the Company admitted the disbursement of the loan to the tune of Rs. 977 lakh. THE Tribunal came to the conclusion that the defendants could be given an opportunity to defend the case subject to their paying admitted disbursed amount to the tune of Rs. 977 lakh. THE last portion of the order says so and a date (24.10.2006) was fixed for compliance/further proceedings. Though the operative portion is short of words to convey the correct sense, but true import of the impugned order is that the delay has been condoned and the restoration has been allowed subject to the payment of Rs. 977 lakh by the defendants/appellants herein. I have heard Mr. M. Vijaya Bhaskar, Counsel for the appellants and Mr. Sanjay Bhatt, Counsel for the respondent.;

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