Decided on November 15,2007



M.C. Jain, J. (Chairperson) - (1.) THE appellants seek to prefer this appeal with delay condonation application (Miscellaneous Application No. 40/2007 in question) against the order dated 31.10.2001 passed by the Tribunal below in M.A. No. 5 of 2001 arising out of O.A. No. 433/1997. By the impugned order, the Tribunal below dismissed the application made by the present applicants/appellants under Order 9 Rule 13, CPC read with Section 22(2)(g) and Section 19(25) of the RDDBFI Act, 1993. The appeal has been filed on 19.2.2007 with Miscellaneous Application No. 40/2007 in question under Section 5 read with Section 14 of the Limitation Act. Prayer has been made to condone the delay of 1934 days in filing the appeal. On calculation however, the delay works out to 1891 days i.e. 5 years and 66 days. It is this delay condonation application which is the subject matter of decision of this order.
(2.) THE applicant No. 1/appellant No. 1 is a private limited company duly registered under the Companies Act, 1956 and the applicant No. 2/appellant No. 2 is the director/guarantor of the applicant No. 1/appellant No. 1. The respondent Nos. 2 and 3 are also the directors/guarantors of the applicant No. 1/appellant No. 1. The applicant No. 2/appellant No. 2 and respondent Nos. 2 and 3 are brothers. The 1st respondent -Union Bank of India filed O.A. No. 433/1997 in question for the recovery of Rs. 98 lakh and odd. Certain loan/credit facilities had been sanctioned to and availed of by the applicant No. 1/appellant No. 1 in the year 1983. Debit balance confirmation was made from time -to -time and lastly on 10.9.1994. The Bank brought the suit against the company and its three directors/guarantors. The defendants were duly served by way of publication in the newspaper "Statesman" dated 27.11.1997. Despite that, they did not appear and the O.A. proceeded ex parte against them which was decreed on 11.12.2000. The appellants/applicants made an application under Order 9 Rule 13, CPC for setting aside the ex parte order dated 16.1.1998 culminating into ex parte final order dated 11.12.2000 within the period of limitation. The restoration application was opposed by the Bank. After hearing the Counsel for the parties and addressing itself to the contentions raised by the two sides, the Tribunal below dismissed it by the impugned order which, as I said, is sought to be challenged by means of the present appeal filed as late as on 19.2.2007. The grounds raised for condonation of this huge and inordinate delay may be summarized thus: After the dismissal of the restoration application, the Counsel -for the applicants/appellants advised that whenever they would be served in the recovery proceedings, all pleas could be taken and the final order would not be enforced against. On such bona fide advice, the applicants/appellants could not challenge the said order before this Appellate Tribunal. On getting notice of the recovery proceedings from the Recovery Office, the applicants/appellants had regularly been appearing and pursuing the said proceedings bona fide with the hope that the DRT as well as the Recovery Officer would conduct the judicial proceedings in a detached manner, but the actual manner of conducting the proceedings had been coercive, cruel, agonizing and vexatious. The Recovery Officer had been behaving in a very atrocious and menacing manner. He was making the applicant No. 2/appellant No. 2 to sit for the entire day without recording the proceedings. The proceedings were being adjourned to the very next day after making him to sit for the entire day, but it was not reflected in the record of proceedings. On different dates, the Recovery Officer inflicted so much of mental cruelty that the applicant No. 2/appellant No. 2 had to call his friends and relatives and had to borrow and remit a sum of Rs. 2 lakh to the Recovery Officer. Then, he felt that the legal advice which he had received was not adequate and appropriate. The same Counsel also did not advise them about the other remedies. The said proceeding, according to the applicants/appellants, continued under duress and threats of imprisonment. The appellant No. 2 was not in a proper state of mind and was not in a position to take any decision. After having been harassed in the said proceedings, the applicant No. 2/appellant No. 2 approached the present Advocate and sought his advice in the matter. After having examined all the documents and proceedings, the applicants/ appellants were advised that even in the recovery proceedings, they could urge the ground of invalidity of a decree arising out of a time barred claim. Further, the Counsel also advised about filing of the present appeal. Hence, the appeal came to be filed bona fide, though belatedly.
(3.) THE delay condonation application has vehemently been opposed from the side of the respondent -Bank. A reply has also been filed. According to the Bank, the respondents had been served with the notice of the O.A. by the Tribunal below through registered post and under certificate of posting in October 1997 at four different addresses given by them. However, despite service of the notice through ordinary process as well as through publication, they failed to appear before the Tribunal below. Thus, they deliberately did not appear before the Tribunal below with mala fide intention of delaying the genuine recovery proceedings initiated by the Bank. They have allegedly concocted/tailored a cock and bull story to back their delay condonation application with a view to frustrate the recovery proceedings of the Bank. It is a sham plea that they had not been properly advised by their Counsel. Even otherwise, it cannot be a criterion for condoning the delay which is roughly of 2000 days. They have no explanation whatsoever to explain this huge delay. It is also denied that the decree/recovery certificate obtained by the respondent -Bank is a nullity and unenforceable.;

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