TOLARAM BUDHIA Vs. INDIAN BANK

JUDGEMENT

(1.) THE respondent-Bank filed the Original Application (OA) for recovery of a sum of Rs. 19,00,78,259.15 p with future interest at the rate of 23.25% with quarterly rests from the date of application till the date of realization with costs and for sale of the application schedule properties. Summons were issued to the defendants. Counsel Mr. N.C. Rangarajan filed Vakalat for D-7 to D-8. THEre was no representation for defendants 1 to 6 and so fresh summons by RPAD and publication was ordered. THEre was no representation for the defendants on 21.7.1998, 15.12.1998 and 19.2.1999. THE defendants were called absent and set ex parte and the Order was passed by the PO, DRT, Chennai, on 30.11.1999. THE appellants filed IA-3310/2000 to set aside the ex parte decree. That petition was heard by the PO, DRT, and it was dismissed. Aggrieved against that Order the appellant has preferred this appeal.

(2.) Counsel for the appellant strenuously argued that no notice was served on the appellants and they came to know about the decree only on receipt of Debt Recovery Certificate by the 4th respondent and the 1st respondent Company was declared sick and the 2nd and 3rd respondents in the OA alone were residing at Chennai and that too not in the address mentioned in the application and the publication was also effected only in the local newspaper in Chennai and not in Calcutta and the applicant Bank has suppressed and given false address in the application and the notices were not served to the correct address and notice in the Debt Recovery Certificate was sent to Calcutta but notice of Original Application was sent to Chennai and the Company was declared sick in which no operations had taken place for several years and as no notice was served properly on the appellants, the ex parte Order passed is liable to be set aside and opportunity may be given to the appellants to put forth their case.

(3.) COUNSEL for the appellant further submitted that in 1990, the Bank sent the correspondence to defendants 4 and 5 at No. 11, Government Place East, Calcutta, but when the Suit notices in the OA was given, it was sent to a different address and so it can be construed that the notice to defendants 4 and 5 were also not sent to the proper address. In the year 1990, the correspondent was sent to defendant 4 and 5 at No. 11, Government Place East, Calcutta. The OA was filed in the year 1997 and in the OA the address of D1 to D4 was given as No. 593/1, T.H. Road, Chennai, and D5 and D6 address are given as Girish Ghose Road, Belur, Howrah, West Bengal and D7 and D8 address was given as No. 4; Hunters Street, Calcutta. Only to the address given by the parties to the Bank, the Bank has sent notices. D7 and D8 appeared through COUNSEL and COUNSEL filed Vakalat for D7 and D8. The notices sent to the other defendants could not be served on the defendants as the defendants have left the place and were not available in the addresses given by them. The Bank took notice only to the addresses given by the parties, namely the defendants herein. COUNSEL for the appellant further submitted that the defendants were residing at Hungerford Street, Calcutta, to which address notices were not sent by the Bank. Only to the address given by the defendants to the Bank, the Bank took the summons. The Bank took every step to serve the notices on the defendants. It may be that in the year 1990, D4 and D5 would have given their address at No. 11, Government Place East, Calcutta, but from the OA it appears that the address given by the defendants was as stated therein i.e. Chennai, Belur-Howrah and Hunters Street, Calcutta. So, only to the addresses given by the defendants to the Bank, the Bank took out the summons. The factory of the appellant was at No. 593/1, T.H. Road, Chennai. The respondent-Bank took summons to Chennai address as well as to Calcutta address which address was given by the defendants to the Bank. In spite of best efforts taken by the Bank to serve the summons to the parties, the summons could not be served on the defendants personally since they were not available. So, finally, publication was effected in the newspaper both in Chennai and Calcutta.