- (1.) THIS appeal has been filed against the order dated 25th September, 2002 passed by the D. R. T. , Allahabad in M. A. No. 65/2001 dismissing the application for recall of ex parte order dated 27th July, 2001 moved by the appellant under section 22 (2) (g) of R. D. D. B. F. I. Act, 1993.
(2.) BRIEFLY stated the history giving rise to the present appeal is that in transfer Application No. 1303/2000 the learned D. R. T. passed an order for dismissal of the case for default of the present appellant on 27th July 2,001. The appellant moved an application for recall of above order under section 22 (2) (g) of the Act, 1993 on the ground that the above noted transfer application was actually allotted to Shri Sharad Ranjan Nigam, Advocate and since the applicant bank had some other Counsels also for doing pairvi in bank cases, one of such Advocates Shri Dinesh Kumar Pathak got the file of above noted case of transfer application on the ground that case had been allotted to him by the bank. Accordingly the applicant moved for recall on behalf of the bank. As the file was with Shri D. K. Pathak, Advocate, the other Counsel could not turn up, although Shri D. K. Pathak himself was present in the Court on 27th July, 2001, but could not respond and inform the Court that actually he had not been allotted above noted case. The Junior Counsel of Shri D. K. Pathak was also present at that time, but he also did nothing, consequently on account of absence, above transfer application was dismissed for default on 27th July, 2001. According to the appellant bank when Counsel Shri S. R. Nigam informed the bank at its headquarter at Lucknow for dismissal of the case for default and then it was found that Shri D. K. Pathak had been actually allotted another case of New general Motor Finance Company Limited Shahjahanpur, whereas this case was of General Motor Finance Company Limited, Lucknow, Bareilly and shahjahanpur and the instant transfer application case was not handed over to shri D. K. Pathak as it pertained to General Motor Finance Company Limited, shahjahanpur. The bank also pleaded that Shri S. R. Nigam was its Counsel on the date of dismissal as well as on this date also. The bank pleaded that due to some differences in the name of other party Shri D. K. Pathak, Advocate had taken the file under some confusion and misunderstanding, although he had been allotted another case and not this case. It was pleaded by the bank that on account of above confusion and mistake, the order dated 29th March, 2001 for steps required for publication could not be taken, hence an application for recall of the order dated 27th July, 2001 had been moved, but it was rejected without any jus'tif ication.
(3.) THE above application for restoration has been contested and opposed from the side of the respondent before the D. R. T. , by filing a detailed objection, wherein it was pleaded that there was no material to support the contention of the bank made in the application under section 22 (2) (g) of the Act. The opposite party also pleaded that it is not understandable as to how an authorized agent could escape his responsibility to attend the case when it was fixed. According to the bank, two cases on account of which bank claims confusion or having different application/transfer application numbers with different years and due to the deliberate negligence the bank committed default. The opposite party also pleaded that the application for recall is devoid of any force, hence it should be rejected.;