BAISHNAB CHARAN BAGUDAI Vs. OFFICIAL LIQUIDATORPURI BANK LTD

JUDGEMENT

(1.) In this application, arising out of a Company Act Case No. 4 of 1957 and Execution Case No. 79 of 1958, the judgment-debtor one Baishanab Charan Bagudai is the petitioner for setting aside an ex parte decree passed against him by this Court on April 26, 1957 purported to have been made under Section 45-D of the Banking Companies Act, 1949, mainly on the ground that the summons was not served on him and that the said decree was passed without his knowledge and that he had, on merits, a good defence to the claim of the opposite party Puri Bank Ltd. (hereinafter referred to as the Bank).

(2.) The matter arose under the following circumstances : The judgment-debtor Baishnab Charan Bagudai, who is now a teacher in a Middle English School at Jharadihi in the district of Mayurbhanj, had previously a small member business in the town of Balasore where he opened an account with the Bank at its Balasore branch for occasional accommodation to him in his said business. It is said that as the business did not flourish, the said judgment-debtor closed it and left the town of Balasore in May 1945; thereafter the judgment-debtor had no occasion to carry on the timber business or operate on his over draft account; that at the time when the judgment-debtor left the town of Balasore nothing was outstanding against him in the account -- it is alleged on the contrary that the judgment-debtor had a balance to his credit. In 1948 the Bank went into liquidation. In 1954 the Official Liquidator filed a list of debtors including the said Baishnab Charan Bagudai for settlement of the list of debtors under Section 45-D (3) of the Banking Companies Act, 1949, claiming from him a sum of Rs. 13,029/13/6 with interest as calculated up to March 31, 1954. From July 195$, there was an attempt to serve notice on the judgment-debtor by registered post addressed to him at his home address - village Ajodhya, P. O. Raj Nilgiri, District Balasore, -- which however appears to have been redirected to other addresses where, it appears, he was an Assisitant Teacher in a certain school. The registered notice with acknowledgment due issued to him was received back unserved as he was found absent. On 15-1-1957, there was an order for issue of fresh notice to the judgment- debtor to his address which appears to have been supplied by the Bank and accordingly notice was issued to his address as Teacher, Baripada High English School, P. O. Baripada, Dist. Mayurbhanj. In February 1957, the said registered notice appears to have been received back unserved as it was reported that no such man was found at the address. Ultimately on March 27, 1957 the Bank obtained an order from this Court for issue of notice under Order 5, Rule 20 Civil Procedure Code as prayed for and accordingly notice was issued to the Munsif of Balasore for service fixing April 1, 1957 for return of service. Thereafter the service return was received with the note that the summons under Order 5, Rule 20 had been served properly as reported by the Process server and hence the service was considered sufficient. In due course the matter came up before this Court for hearing and an ex parte decree was passed as aforesaid. This relevant portion of the order passed on April 26, 1957 so far as necessary for the present purpose is set out as follows:

(3.) On the merits, according to the judgment-debtor, he has a good defence to the claim of the Bank. The judgment-debtor filed a further affidavit on January 25, 1960 by way of petition praying for allowing his application on merits and vary the list so far as it concerns the judgment-debtor, under Section 45-D (9) of the Banking Companies Act. In support of his contention Mr. S. C. Roy, learned counsel for the judgment-debtor petitioner, relied on paragraphs 9 to 16 of the said petition dated January 25, 1960 filed herein. It is alleged that one Sri K. B. Bhattacharjee (full name stated to be Sri Rajani Ballav Bhattacharjee), who was at the time the Manager and the Secretary of the Balasore Branch of the Bank, had misappropriated certain moneys amounting to over Rs. 7,000/- In this context, certain entries in the ledger of the Balasore Branch of the Bank, on which the judgment-debtor strongly relied, are set out in paragraph 9 of his petition and are quoted as follows: <FRM>NP_29_TLORI0_1960.htm</FRM> These, indeed, are entries which on the face of them require explanation by the Bank. I do not, at this stage, express any opinion on this aspect of the case which, however, directly relates to the merits of the defence. For the present purpose I am satisfied that the judgment-debtor has prima facie a good defence to the claim of the Bank on merits.