CANARA BANK Vs. S.K.S. BEVERAGES

JUDGEMENT

(1.) THIS appeal impugns the order dated 20.7.2011 passed by the learned Presiding Officer of the DRT -I, Chandigarh, whereby the application (M.A. No. 25/2012) filed by the respondents under Section 19(25) and Section 22 of the RDDBFI Act has been allowed and the ex parte judgment and order dated 29.4.2010 passed in O.A. No. 130/2005 has been set aside. Briefly stated, the facts of the case are that the appellant -Bank had sanctioned certain credit facilities to respondent No. 1 firm through its sole proprietor, respondent No. 2 who had executed the loan documents, for which his father, deceased respondent No. 3 stood guarantor and mortgaged his immovable property. Since the respondents failed to repay the loan, the appellant -Bank filed OA No. 130/2005 for the recovery of outstanding dues against the firm, its proprietor and LRs of the deceased guarantor/mortgagor. As the defendants failed to appear before the DRT despite publication of notice, the OA was heard ex parte by the Tribunal below and was allowed as such vide order dated 29.4.2010 and a recovery certificate dated 9.7.2010 was accordingly issued. The respondents filed an application (MA No. 25/2010) for setting aside the ex parte order, in respect of which reply was filed by the appellant -Bank. The DRT, vide impugned order dated 20.7.2011, allowed that application, set aside the judgment and order dated 29.4.2010, recalled the recovery certificate, reopened the O.A. and the defendants were allowed time to file written statement. Feeling aggrieved with that order, the Bank has filed the present appeal.

(2.) I have heard Ms. Seema Gupta, learned Counsel for the appellant -Bank and Mr. Jos Chiramel, learned Counsel for respondents and perused the record.

(3.) ADMITTEDLY , only respondent No. 2, Mr. Shokat Azad, and his father, Mr. Noor Mohammad, had executed the loan documents and guarantee/mortgage documents respectively. The guarantor/mortgagor Noor Mohammad had died before the filing of the OA. None of his legal representatives, except respondent No. 2, had executed any document or given their addresses to the Bank. A perusal of the record shows that the Letter of Proprietorship and Cash Credit Agreement dated 8.5.2001 (Annexure -B) were executed/signed by respondent No. 2 with the address of Village Pachanka, Distt. Faridabad and in another letter of Proprietorship dated 17.10.2002 he had given his address as 671, Sector 28, Faridabad. The record further shows that similarly two addresses of respondent No. 1 firm were given in the loan documents as 16/2, Sareen Complex, Near Badkhal Railway Crossing, Mathura Road, Faridabad and Badkhal Village Lake Road, Near Tourist Complex, Badkhal Village, Faridabad. The O.A. was, however, filed against respondent No. 1 with both the aforesaid addresses and against respondent No. 2 and 3.1 to 3.4 showing them as residents of 1282, Sector -37, Faridabad. There is, however, no documentary proof on record which could show that the respondents ever resided at that address. Along with the appeal, the appellant has filed certain additional documents (Annexures I, J, Q and R), which have been taken on record after allowing the Bank's application (I.A. No. 260/2012) vide order dated 1.5.2012. In those documents, two addresses of respondent No. 2 have been shown as 16/2, Sareen Complex, Mathura Road, Near Badkhal Railway Crossing, Faridabad and 671, Sector 28, Near Main Market, Faridabad, whereas the address of respondent No. 3.2 has also been shown as 671, Sector 28, Faridabad.