Decided on October 15,2007



M.C. Jain, J. (Chairman) - (1.) THE appellants have preferred this appeal against the order dated October 1, 2003, passed by the Presiding Officer, Debts Recovery Tribunal, Chandigarh, dismissing the Miscellaneous Application No. 188 of 2003 for setting aside the ex parte decree dated March 27, 1996. The said application was made under Order 9, Rule 13 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure. Appellants Nos. 1 and 2 herein, namely, Mr. Jit Singh and Mr. Jaspal Singh were defendants Nos. 7 and 4 respectively in the suit in question whereas appellant No. 3, Mr. Baldev Singh (son of appellant No. 1 Mr. Jit Singh) was allowed to be impleaded by the hon'ble Punjab and Haryana High Court vide order dated September 25, 2006 in C. M. No. 13433 -CII of 2003 in Civil Revision No. 5233 of 2003. The relevant facts are stated hereunder. The first respondent -Central Bank of India had filed Suit No. 182 of 1993 for the recovery of Rs. 12 lakhs and odd against the defendants including appellants Nos. 1 and 2 herein. The defendants appeared before the civil judge (sr. division), Ludhiana. However, the proceedings were adjourned several times on the request of the defendants to enable them to file written statement. Ultimately vide order dated September 19, 1994, last opportunity was afforded to them to file written statement by October 24, 1994. They did not file written statement and on October 24, 1994, the case was ordered to proceed ex parte. Ex parte evidence was recorded and the suit was decided finally ex parte vide Judgment and decree dated March 27, 1996.
(2.) APPELLANTS Nos. 1 and 2 herein filed an application under Order 9, Rule 13 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure for setting aside ex parte decree before the civil judge, sr. division, Ludhiana, on September 1, 1997. The copy of the restoration application is annexure H to the present appeal. The ground for restoration advanced by them was that on January 24, 1995, they were directed through their counsel by the court of Senior Sub Judge, Ludhiana, to appear before the Debts Recovery Tribunal, Jaipur, as after passing of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short "the said Act") which came into force on June 25,1993, the civil court had ceased to have the jurisdiction to proceed further with the case. Thereafter, they never received any notice either from DRT, Jaipur, or from the civil court, Ludhiana, to appear in the above -noted suit. After the setting up of Debts Recovery Tribunal, Jaipur, they were informed by their counsel that the civil court had no jurisdiction to proceed further with the recovery suit of more than Rs. 10 lakhs. As such, their absence on October 24,1994, was neither wilful nor intentional. On October 24, 1994, the case was adjourned to January 24, 1995. On January 24, 1995, they appeared in the court along with their counsel and they were directed to appear before the Debts Recovery Tribunal, Jaipur. So, there was sufficient cause to set aside the ex parte decree passed on March 27,1996. The ex parte judgment an decree passed on March 27, 1996, were allegedly illegal and without jurisdiction. They allegedly came to know about passing of ex parte judgment and decree only on August 6, 1997, when notice of the Recovery Officer, Debts Recovery Tribunal, Jaipur, was published in the newspaper "The Tribune". The restoration application was then made promptly on September 1, 1997. The respondent -bank opposed the restoration application, contending that on September 19, 1994, the case was adjourned to October 24, 1994, for filing of written statement by the defendants, subject to payment of cost of Rs. 200 and this was the last opportunity given to them. They did not appear on October 24,1994, and the case proceeded ex parte against them. On January 24, 1995, the civil court ordered for the transfer of the case to the Debts Recovery Tribunal, Jaipur, with a direction to the parties to appear there on March 6,1995. However, the defendants had already been ordered to be proceeded ex parte on the previous date, i.e., October 24, 1994. It was denied that the judgment and decree passed by the civil court were without jurisdiction. The bank submitted that operation of the said Act was stayed by the hon'ble Punjab and Haryana High Court and various other High Courts. Consequently, the jurisdiction of the civil court continued. Further, it was admitted by the defendants that they appeared in the civil court with their counsel on January 24,1995. They, therefore, then came to know of the order dated October 24, 1994, whereby they were proceeded ex parte. Their contention was, thus, palpably wrong that they came to know about the passing of the ex parte decree on August 6, 1997.
(3.) AS the restoration application of the defendants/appellants did not find favour with the Tribunal below, the same was dismissed. However, instead of filing an appeal thereagainst before this Appellate Tribunal, they filed a Civil Revision No. 5233 of 2003 before the hon'ble Punjab and Haryana High Court, copy of which is on record. It was dismissed as withdrawn on September 25, 2006, with liberty to file an appeal before this Appellate Tribunal against the rejection of restoration application. It was also observed that in case of their preferring the appeal within 15 days from the date of receipt of certified copy of the order, the respondents would not take any objection about limitation and the Appellate Tribunal (this Tribunal) would decide the appeal on the merits. Thereafter, the present appeal has been filed. The relevant facts and grounds in support of the restoration application/ appeal and as to its opposition from the side of the bank have already been set forth above.;

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