S S KAUSHIK Vs. SYNDICATE BANK

JUDGEMENT

(1.) THE 5th defendant S.S. Kaushik in O.A. 210/ 97 before the Debts Recovery Tribunal-I, Delhi (hereinafter referred to 'the DRT") is the appellant herein. THE 5th defendant was set exparte on 22.11.2001 and final order was passed on 7.1.2002. THE 5th defendant S.S. Kaushik filed an application under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the 'the Act') but, the same was dismissed by the learned Presiding Officer of the DRT by order dated 7.2.2002 holding the 5th defendant was not vigilant and the reasons for his non-appearance were not convincing. Aggrieved by the same, the 5th defendant S.S. Kaushik has filed this appeal. THE 1st respondent Syndicate Bank who was the plaintiff in the said O.A. 210/97 has filed a reply opposing the appeal.

(2.) I have heard Counsel for the appellant and the 1st respondent, and perused the record.

(3.) BUT, as the learned Counsel for the appellant/5th defendant rightly points out, the confusion, which started on 9.8.2000 as if Mr. V.K. Nanda, Advocate was appearing for the 5th defendant, continued till the 5th defendant was set exparte. The learned Counsel for the appellant/Sth defendant contends that Mr. V.K. Nanda who was stated to be appearing for the 5th defendant did not appear for him later and, in spite of the fact that the 5th defendant had filed written statement in the year 1998 itself, the DRT proceeded on the basis that he had not filed the written statement. The learned Counsel for the appellant/5th defendant also rightly points out that the Presiding Officer of the DRT has mistaken Mr. V.K. Nanda as appearing for the 5th defendant, whereas, he appeared for the 4th defendant, and under this mistaken impression the 5th defendant was proceeded exparte on the ground he had not filed any written statement. The learned Counsel for the appellant/5th defendant contends that he (the real 5th defendant/appellant herein) had been advised by his Counsel to appear in the Tribunal as and when required, and this is probabilised by the fact that there was no effective hearings from 10.12.1998 to 5.1.2000 due to various reasons like the Presiding Officer was on leave, that the Presiding Officer was transferred, and that there were large number of cases for the day. On 5.1.2000 the new Presiding Officer issued notices to the Counsel for all the defendants taking note of this fact that there was no effective hearing during the above said period. It is evident that it is in these circumstances that the Presiding Officer of the DRT proceeded on the basis that Mr. V.K. Nanda was appearing for the 5th defendant, but, had not filed the written statement, and the 5th defendant was set exparte on 22.11.2001 followed by the final order on 7.1.2002.