M VASANTHALAKSHI Vs. INDIAN BANK

JUDGEMENT

(1.) FOR the The applicants/third parties have filed this application under Order 14, rule 8 of Original Side Rules read with Order 7, rule 11 of the Civil Procedure Code, 1908, to grant leave to file an application to set aside the ex parte decree dated January 4, 1996. The case in brief is as follows : The first respondent filed a suit against respondents Nos. 2 to 7 on the file of this court for recovery of a sum of Rs. 10, 99, 690 under open cash credit facility with interest at the rate of 17 per cent. per annum and for other reliefs. The first applicant's mother was the seventh defendant in the suit. The second respondent is a partnership firm and respondents Nos. 3 to 7 are partners. The second respondent firm is engaged in manufacture and sales of handwoven sacks, silk sarees and pavadais. The firm was having transaction with the first respondent-bank. The second respondent seems to have obtained a loan from the bank and the third respondent somehow obtained the document of the eighth respondent's immovable property and deposited the title deeds and created an equitable mortgage to secure the loan amount availed of by respondents Nos. 2 to 7. The third respondent also seems to have obtained a confirmation letter on August 8, 1990. Since respondents Nos. 2 to 7 failed to repay the loan amount, the first respondent instituted the suit for recovery of the same. The defendants in the suit failed to appear and contest and, as such, the ex parte decree was passed on January 4, 1996.

(2.) AFTER the passing of the ex parte decree, the first respondent without approaching this court, for passing final decree seems to have approached the Debt Recovery Tribunal constituted under section 19 and filed O.A. No. 194 of 1999 for issuance of a recovery certificate as per the preliminary decree. The applicants herein are the legal heirs of the seventh respondent and no notice was also sent to them. Respondents Nos. 1 to 7 colluding together, played fraud and obtained collusive decree against the valuable properties of the eighth respondent. The ex parte decree is not binding on the eighth respondent as she is not a legally competent person to enter into any transaction or execute any document since she is insane. The husband of the eighth respondent is the second applicant. The eighth respondent was kept in a separate room from 1983 and there is no possibility of going to the bank and affixing her signature. These things can be proved only if the applicants are granted leave to file an application as otherwise, they would be put to much loss and hardship. If the leave is granted, the respondents are not in any way prejudiced. Now, the first respondent-bank is taking steps to sell away the only property of the eighth respondent, who is made guarantor by playing fraud. The applicants came to know about the ex parte decree only on June 14, 2000, and have filed the application within 30 days from the date of knowledge. They are having valid grounds in succeeding the suit.

(3.) THERE should be a limitation as to how far the Tribunal should proceed with a matter assigned before it and as unfettered right to the Tribunal, if at all given by the Legislature may create a hazardous situation in the judicial discipline. The same view has also been reiterated in United Bank of India v. Abhijit Tea Co. Pvt. Ltd. 2000 6 Scale 283.