JHARNA DUTTA Vs. CHAIRPERSON DEBT RECOVERY APPELLATE TRIBUNAL

JUDGEMENT

(1.) THIS writ petition has been filed challenging the judgment and order of the Debt Recovery Appellate tribunal (hereinafter called 'drat') dated 17-3-2008 passed in Appeal No. 8 of 2008 by which the learned appellate forum dismissed the appeal against the judgment and order of the Debt Recovery Tribunal, (hereinafter called 'drt')Cuttack dated 26-12-2007.

(2.) THE facts and circumstances giving rise to the case are that the petitioner No. 1 is the wife of one Kalyan Kumar Dutta who was originally Defendant No. 4 in the case filed by the opposite party-bank before the drt and the petitioner No. 2 is the daughter of petitioner No. 1 and Defendant No. 4. Late Kalyan Kumar Dutta, Defendant No. 4 before the DRT stood guarantor as he has executed the deed of guarantee in favour of opposite party bank along with some other persons on 14-9-1994 who had taken the loan. The DRT after institution of the case on 30-5-2003 under Section 19 of the Debts due to Banks and Financial Institutions Act, 1993 (hereinafter called 'act, 1993') issued notices to all the defendants. The said Defendant no. 4 was also served by substituted service i. e. by publication in the newspaper on 1-12-2003. He did not enter appearance. The DRT vide its order dated 1-3-2004 directed to proceed ex parte against the said defendant No. 4. The said defendant died on 23-3-2004. Opposite party bank claimed that it was not aware of the death of the said respondent and therefore could not file an application for substitution of his legal heirs. A writ petition was filed before this court by the other defendants in the said case challenging the order of DRT dated 6-6-2005 and this Court stayed further proceedings before the drt vide order dated 21-6-2005. An affidavit was filed in the said writ petition subsequently disclosing that the said opposite party had died. The said writ petition stood disposed of. The bank filed an application for substitution of the l Rs of said Defendant No. 4 on 25-10-2007. The said application was allowed vide order dated 26-12-2007 and the present petitioners were substituted as LRs of the said Defendant No. 4. They filed written statement on 1-12-2008 and further affidavit in evidence on 18-2-2008. Arguments were heard and judgment was reserved on merit vide order dated 29-5-2008.

(3.) THE petitioners challenged the order dated 26-12-2007 allowing the substitution application, before the DRAT by filing an appeal which has been dismissed by the impugned judgment and order dated 17-3-2008. Hence this writ petition.