Decided on September 28,2007



M.C. Jain, J. (Chairperson) - (1.) THE appellant is M/s. Inrays through Mr. B.S. Kumar. The 1st respondent is the State Bank of India and the 2nd respondent is Mr. Gurnam Singh, the auction purchaser. The appellant is aggrieved by an order dated 31.8.2006 passed by the Tribunal below in MA No. 71/2004 arising out of O.A. No. 757/2000. There, M/s. Inrays figured as applicant/defendant No. 1/JD No. 1 and Mr. B.S. Kumar as applicant No. 2/defendant No. 2/JD No. 2. By the impugned order, the Tribunal below dismissed their application under Order 9 Rule 13, CPC for setting aside ex parte judgment and recovery certificate dated 24.6.2004 passed in OA No. 757/ 2000. In prayer, however, the appellant has sought the setting aside of the impugned order dated 31.8.2006 as well as the order of the Recovery Officer dated 27.9.2005 (whereby the auction sale was confirmed).
(2.) THE relevant facts may be stated briefly. The State Bank of India, respondent -Bank herein filed recovery suit before the Senior Sub -Judge, Faridabad for recovery of Rs. 23 lakh and odd along with interest. There were four defendants in the suit. The defendant No. 1 was M/s. Inrays, defendant No. 2 was Mr. B.S. Kumar, defendant No. 3 was Mrs. Preet Narula and the defendant No. 4 was Mr. I.S. Kumar. M/s. Inrays was then a partnership firm and it is an undisputed fact that Mr. B. S. Kumar was one of its partners. Defendant Nos. 3 and 4 were mortgagors/guarantors. M/s. Inrays is now said to be a proprietorship concern of Mr. B.S. Kumar. Anyway, we are concerned with the status of the parties as it existed at the relevant time. In the restoration application made before the Tribunal below, the applicants averred that the defendant No. 4 had died during the pendency of the suit and the address of the defendant No. 3 was not known. Therefore, they have not been impleaded in the restoration application. As per the restoration application made before the Tribunal below, the applicants received the copy of the award in OA on 10.7.2004 by post and then came to know about the case.
(3.) WHEN the suit was pending before the Senior Sub -Judge, Faridabad, summonses were issued against the defendants for 30.5.1994. The gist of the order passed on 30.5.1994 by the Senior Sub -Judge is that the defendant No. 2 was not present despite service through registered A.D., nor anyone else appeared for him. He was one of the partners of defendant No. 1. So, defendant Nos. 1 and 2 were ordered to be proceeded against ex parte. Defendant Nos. 3 and 4 had not been served and they were ordered to be summoned again. The next date fixed was 19.7.1994.;

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