A R RAJASEKARAN Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) FINAL Order was passed in the TA on 21.11.2000 and Recovery Certificate was ordered to be issued. It is stated in the order that on 16.10.1997, D1, D2 and D4 to D6 entered appearance through Counsel and fresh summons were ordered against D3. The case was posted for filing Reply Statement on 15.1.1998. The defendants filed IAs 22 and 23/1998 asking for time on the plea that their documents and correspondence were seized by the CBI. Then the case was posted finally on 27.7.1998. D1, D2 and D4 to D6 filed petition and again the case was re-posted for 9.11.1998 for reply statement and for impleadment of LRs of D3. No reply statement was filed and the case was posted to 6.4.1999. Then the petitions in IAs 1336 and 1337/99 filed by the defendants were allowed on condition that defendants pay 1/5th of the suit claim as the petitions were accompanied by reply statement, failing which the petitions would stand dismissed. Then at the request of Counsel for defendants, time again granted for filing reply statement of D7 to D9. The defendants also took the matter to the High Court in CRP No. 19442 against the order in IA 1336/99 and the High Court passed order to comply with the conditions imposed by the Tribunal in that IA. Then for payment of first instalment, the case was posted to 17.1.2000 and the conditional order was not complied with despite the time extended till 18.2.2000. Then the matter was posted to 33.3.2000. On that day, the defendants were neither present nor represented. Then the matter was taken up and the Bank filed Proof Affidavit and the documents were marked and final order was passed in the TA. Then the defendants filed petition to set aside that ex pane decree with a petition to condone the delay of 300 days in filing that set aside petition. That petition was dismissed by the Presiding Officer, DRT. Aggrieved against that order the present petition is filed.

(2.) Counsel for the appellant submits that there is a delay of 300 days in filing the petition to set aside that ex parte order and the delay has to be condoned. In the Affidavit the appellant has stated that the delay in filing petition is because the appellant was under the genuine impression that the principal debtor will take steps to clear the debts owed to the applicant Bank and the appellant sustained loss in business and he was not in a position to comply with the conditional order passed by the Tribunal and the delay is neither wilful nor wanton but bona fide and for sufficient cause and unless the delay is condoned the appellant will be put to great loss and hardship. Counsel for the appellant submits that there was no wantonness and wilfulness on the part of the appellant in filing the petition to set aside the expert decree and the delay in filing the petition has to be condoned.

(3.) ON a perusal of the records, I see that sufficient opportunity was given to the appellants to file the reply statement. In fact, D1, D2 and D4 to D6 appeared through their Counsel and their matter was represented before the Presiding Officer, DRT and a number of opportunities were given to the appellant defendants for filing the reply statement and finally conditional Order was passed and the conditional Order was not complied with by the defendants. The conditional Order passed by the DRT was confirmed by the High Court and the matter was taken to the Supreme Court in SLP and the SLP was also dismissed. The records clearly reveal that sufficient opportunity was given to the defendants and the defendants only did not prosecute the matter and wantonly and wilfully remained absent and they were set ex parte. Further, even in filing the petition to set aside the ex parte order, there is a delay of 300 days. Such an inordinate delay has not been properly explained. The reason given in the petition that the appellant was under the impression that the principal debtor will take steps to clear the debts is not at all convincing. The appellant has not given any sufficient reason and he has not given any valid ground to show that the appellant was prevented from filing the petition in time to condone the delay. The reason adduced by the appellant in the petition is not at all acceptable. I see no justifiable ground at all to condone the delay. The Presiding Officer has considered all these aspects and he has dismissed the petition. I find no merit and substance in this appeal.