H PAUL AND COMPANY Vs. BANK OF INDIA

JUDGEMENT

(1.) THE petitioner, a sole proprietary concern is aggrieved by the order dated October 22, 1997 by which the Debts Recovery Tribunal, Jaipur has dismissed the application for setting aside the ex parte judgment dated March 18, 1997. The petitioner prays that the order be set aside. A few facts as relevant fur the decision of this writ petition may be briefly noticed.

(2.) ON March 27, 1993, the Bank of India filed a suit for the recovery of Rs. 32,24,414. 56 against the petitioner and Mr. Hargopal Singh, its sole proprietor. While the suit was pending in the Court of Additional Senior Subordinate Judge, Kharar, the "recovery of Debts due to Banks and Financial Institutions Ordinance" was promulgated on June 24, 1993. Ultimately, the Act was promulgated. In pursuance of the provisions of the Act, the trial Court transferred the suit to the Tribunal vide order dated October 15, 1994. The parties through their counsel were directed to appear before the Tribunal on December 23, 1994. It appears that the petitioner filed C. W. P. No. 18499 of 1994 with a prayer that the orders regarding the establishment of the Tribunal and the appointment of the Presiding Officer, be quashed and that the proceedings be stayed. Vide order dated December 20, 1994, the Bench directed that notice of motion be issued to the respondents for February 13, 1995. Meanwhile "the transfer of the suit pending in the court of Additional Senior Sub Judge, Kharar, was stayed. The petitioner avers that vide order dated June 16, 1996, the writ petition was dismissed by a Division Bench. However, a perusal of the original record indicates that it was dismissed on September 16, 1996. 3. Since, the trial Court had transferred the suit to the Tribunal on October 15, 1994 and the petitioner's prayer for the stay of further proceedings had not been accepted by the Bench, it appeared before the Tribunal on December 23, 1994, through its counsel Mr. S. L. Sharma. An application was filed. The case was adjourned to March 6, 1995. The petitioner avers that "as the case proceedings of the suit were stayed by this Hon'blc Court vide its order dated 20. 12. 1994", it was "prevented by sufficient cause for not appearing before respondent No. 2 on any of the dates after 23. 12. 1994". It was only after the dismissal of the writ petition on September 16, 1996, that the petitioner engaged a counsel "to take care of the proceedings before respondent No. 2 after 16. 9. 1996". It is alleged that the counsel did not file his Vakalatnama in time and, consequently, the Tribunal "was pleased to pass an ex parte decree-holder dated 18. 3. 1997". On perusal of the records, it came to the notice of the petitioner that it "was proceeded against ex parte as (far) back as on 6. 3. 1995 despite the stay order granted by this Hon'ble Court. " The ex parte judgment delivered by the Tribunal was also sent to [he petitioner which was received by it on April 5, 1997. It is alleged that the petitioner contacted its counsel "to file an application for setting aside the ex parte order-decree dated 18. 3. 1997" and according to the counsel, this application was filed on April 22, 1997. The counsel had also got an affidavit dated May 15, 1997 from the petitioner. He, however, did not "cure the defects in the application dated 22. 4. 1997. . . . . " The counsel "neither prosecuted the application nor shared any information about the application with the petitioner who was completely in dark about any application". On July 30, 1997, the petitioner engaged Mr. Sanjay Sharma, Advocate, who filed an application "for setting aside ex parte decree-order Under Section 22 of the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 and another application Under Section 5 of the Limitation Act (sic.) as early as on 6. 8. 1997 within limitation of 30 days from the actual knowledge on 30. 7. 1997. " This application was "diligently prosecuted by the petitioner. . . . . . . . . . ". Respondent No. 1 appeared on September 11, 1997, and filed a reply to the application. The argument were heard and vide order dated October 22, 1997, the application for condonation of delay and for setting aside the ex parte judgment was dismissed. The petitioner alleges that "a full-fledged conspiracy was hatched by respondents in connivance of Mr. Kosar (the petitioner's Advocate) to play havoc. . . . . . . . ". The petitioner claims that the Tribunal has erred in not condoning the delay and in dismissing its application for setting aside the ex parte order-decree. It prays that the order be quashed.

(3.) A written statement has been filed on behalf of the Bank. It has been averred by way of a preliminary objection that the petitioner has an effective alternative remedy Under Section 20 of the Act. It has been further pointed out that the petitioner had put in appearance before the Tribunal on December 23, 1994 when the case was adjourned to March 6, 1995. The case was thereafter adjourned to May 30 and August 2, 1995. Ultimately, the judgment was passed against the petitioner. No stay order having been passed by the High Court, the Tribunal was entitled to proceed with the case. A copy of the orders passed by the court of Additional Senior Sub Judge, Kharar on October 15, 1994 and by the Tribunal thereafter has been produced as Annexure R. 1 with the written statement. Even the other averments made by the petitioner have been controverted. It has been prayed that the writ petition be dismissed with costs.