Decided on October 31,2007



R.S.Tripathi, - (1.) THIS appeal has been preferred against an order dated 26th September, 2001 passed by D.R.T., Jabalpur in M.A. No. 179/2000 rejecting the application moved on behalf of the appellants for restoration of the ex parte order dated 11th October, 1999 on their application moved under Section 22(2)(g)(h) of the RDDBFI Act, 1993.
(2.) In brief the case of the present appellants before this Appellate Tribunal is that the appellant No. 1 company was doing its business of manufacturing aluminium and copper wires and it is provided with credit facilities of Rs. 20 lacs towards Term Loan and Rs. 4.50 lacs towards Cash Credit Limit by the respondent Bank; consequently, a civil suit for recovery was filed before the Civil Court, Gwalior but after the establishment of D.R.T. at Jabalpur under the aforesaid enactment of 1993, above suit was transferred to "D.R.T., Jabalpur where its new number given was T.A. No. 358/98. According to the appellants, as per the provisions of the above enactment of 1993, notices were required to be served upon the appellants after the transfer of the case to the Tribunal but no such notices were given to them and on 3rd September, 2000 one Shri Chandra Shekhar Sharma, one of the friends of the appellants informed the appellants about the issuance of a notice pertaining to the appellant's company published in the newspaper "Dainik Bhaskar" on 17th August, 2000. Thereafter the appellants could go through the above newspaper and came to know that through above publication in the newspaper the State Bank of India had warned the members of the general public not to purchase the mortgaged property of the appellant No. 1 company as there was an ex parte judgment of the D.R.T. in respect thereof. The appellants after coming to know about the ex parte judgment through above newspaper applied for a certified copy; of the ex parte judgment and proceedings thereof and receipt of these certified copies the things were clear that there was no direction for issuance of notices after the receipt of the file from Civil Court in the D.R.T. and when the Tribunal directed to issue notice fixing 29th July, 1999, as the bad luck would have been of the family members of the appellants were at Vellore from 2nd August, 1999 to 27th August, 1999 in connection with the serious condition and treatment of brother of the appellant Nos. 2 and 4 admitted there in the hospital. The appellants denied to have received any notice for the proceedings before the D.R.T. and pleaded that when their brother was shifted from Vellore hospital to Mumbai hospital on 3rd September, 1999, the appellants reached Mumbai and stayed in a hotel in connection with treatment of their brother. The Railway journey ticket, papers relating to stay in Hotel Alka, (Thane), Mumbai, return journey tickets, etc. were brought before D.R.T. by the appellants in support of above case. On the basis of above, the appellants had applied for setting aside ex parte judgment when they returned to Jabalpur. In the meanwhile guarantor Rambeti Tomar expired. The learned D.R.T. after considering the case for restoration on 29th September, 2001 dismissed the application of the appellants for restoration of the case, thereafter, the application for review of that order was filed before the D.R.T.A writ petition was also filed by the appellants before the Hon'ble High Court of Madhya Pradesh who permitted the appellants to file the appeal, then the appeal has been preferred. From the side of the respondent-Bank an objection/reply to the Memo of Appeal has been filed denying the case of non-issuance of notices to the appellants after the transfer of the suit from Civil Court to D.R.T., Jabalpur. The case of the Bank is that when the suit was transferred from Civil Court to D.R.T. the Civil Court itself had fixed a date for appearance of parties before the D.R.T. but the appellants with a view to avoid the payment of amount to the Bank failed to turn up before the D.R.T. despite knowledge of that date. According to the Bank the notices were issued to the appellants who always evaded services of these notices; subsequently, publication through newspaper was ordered by the Tribunal and, thus, the appellants had sufficient knowledge of the proceeding before the D.R.T. The Bank has further denied that all the brothers and other family members of the appellants had left for Vellore in connection with treatment of an ailing brother and that all along the entire family was neither at Vellore nor at Mumbai in connection with treatment. The case of the Bank is that despite knowledge of the date, the appellants failed to turn up and learned D.R.T. has considered the grounds taken for setting aside ex parte judgment and all other factors for the absence of the appellants while passing the impugned order. According to the Bank the appellants have not been able to make out any case for restoration; therefore, the present appeal has no force.
(3.) THIS Tribunal has heard Counsel for the appellants and Counsel for the respondent at length and has also gone through the entire record. From the side of the appellants learned Counsel has argued that when the appellants were out of station in connection with the treatment of their brother, one Chandra Shekhar Sharma, one of their friend got the news in the local newspaper published on 17th August, 2000 with regard to warning to members of the general public not to purchase the mortgaged property of respondent No. 1 company on account of ex parte judgment passed by the Tribunal, therefore, when the appellants were communicated about this publication of news by Sri Chandra Shekhar Sharma, the publication in newspaper "Dainik Bhaskar" dated 17th August, 2000 was traced out and on that basis the appellants came to know about the ex parte judgment as well as the proceedings thereof. The certified copies were applied for and were obtained, only then the appellants came to know that after an inordinate delay the Tribunal on receipt of records of Civil Court directed for issuance of notices to the appellant but these notices were never served upon any of the appellants as they had been out of Gwalior in connection with treatment of their ailing brother. Attention of this Tribunal has been drawn towards papers such as journey tickets, papers of treatment, staying at hotel. The appellants having no other alternative applied for setting aside ex parte judgment but that application for restoration as well as application for its review were rejected by learned Tribunal without giving any cogent ground for not considering the grounds of restoration. Learned Counsel for the appellants had laid emphasis that under the circumstances the case should be restored back to its original number to enable the appellants to contest the matter on merits for the ends of justice.;

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