TAMIL NADU MERCANTILE BANK LIMITED Vs. G VIJAYALAKSHMI

JUDGEMENT

(1.) THIS revision application has been preferred by the petitioner, Tamil Nadu Mercantile Bank (hereinafter referred to as the 'Bank') against order dated 21st March, 2007, passed by the Debts Recovery Appellate Tribunal (hereinafter referred to as 'Appellate Tribunal') in M.A. No.40/06. By the said order, the Appellate Tribunal imposed cost of Rs.5,000/= on respondent and set aside the order dated 27th Feb., 2006, passed by the Debts Recovery Tribunal " I, Chennai (hereinafter referred to as 'Tribunal') with further direction to respondent to deposit the principal amount of Rs.4 lakhs together with simple interest @ 19.89% p.a.

(2.) ACCORDING to the petitioner, the petition to set aside the ex-parte decree as was preferred by the respondent before the Tribunal was rightly rejected, being barred by limitation. The Appellate Tribunal had no jurisdiction to go into the merit of the main suit for setting aside the order passed by the Tribunal without determining the question whether the petition to set aside the ex-parte decree as was filed by respondent was barred by limitation or not.

(3.) COUNSEL for the bank also placed reliance on Supreme Court decision in Sunil Poddar & Ors. - Vs " Union Bank of India reported in 2008 (1) MLJ 1193 (SC). In the said case, application u/s 22 (2) (g) was preferred by the appellants to set aside the ex-parte order submitting that they were not served with summons. Bank contended that summons were published in the newspaper. The Supreme Court, while noticed that the appellants were aware of the civil suit, entered appearance and filed written statement, but there was no such whisper about the same u/s 22 (2) (g) application, observed that the conduct was not bona fide. The Supreme Court further held that only if the applicant satisfied the Court that he had no notice of the date of hearing of the suit and he had no sufficient time to appear and answer the claim of the appellant, decree will not be set aside for mere irregularity in service of summons. In the present case, the borrower has not taken plea before the Tribunal that summons was served on her. There was no concealment of fact made by borrower before the Tribunal. In this background, the aforesaid judgment cannot be made applicable in the present case. COUNSEL for the petitioner also relied on single Judge judgment of this Court in Indian Bank " Vs " D.C.Mangalraj reported in 2006 (3) CTC 635, but therein the issue relating to limitation having not decided, the petitioner bank cannot derive any advantage of the same.