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Judgment
I.A. No. 1061/2019 (Application for condonation of delay)
The instant application is filed for seeking condonation of delay of 14 days in filing the present appeal. It is stated in the application that there is a delay of 14 days in filing the present appeal which was caused due to the shifting of the office of advocate of the appellant. The delay was neither intentional nor deliberate. After considering all facts, the delay of 14 days in filing the present appeal stands condoned. The application is accordingly allowed.
I.A. No. 159/2024 (Application for waiver of pre-deposit)
The present appeal is filed to impugn the order dated 29.06.2019 passed by DRT-II, Delhi in O.A. No. 563/2016 titled as Punjab National Bank V Aarti Malhotra & others whereby M.A. No. 145/2018 filed on behalf of defendants no.1 and 2 under Order IX Rule 13 CPC for setting aside the ex parte order/judgment dated 16.05.2018 was dismissed.
The counsel for the appellants submitted that the impugned order dated 29.06.2019 was not a final decree or determination of debt by the Tribunal to have the mandate of Section 21 of the RDB Act and relied upon the judgment of the Allahabad High Court in case Jai Gopal Kansal & another V Indian Bank, Branch Office Indian Bank, Railway Road Hapur & another, 2019 SCC OnLine All 4669. Sh. Gupta in particular referred to para 26 of the said judgment which is reproduced as under:
26.In the present case, the appeal filed under Section 20 before the Appellate Tribunal was in fact a misc. appeal filed, against an order rejecting an application under Order IX Rule 13 for setting aside an ex parte decree, as such the said misc. appeal was not against any decree but was against an order. Section 21 of the Act contemplates that the amount of pre-deposit has to be made when the appeal is filed against the amount of debts so due as determined by the Tribunal under Section 19. In the present case, the appeal is not against the order determining the debt due dated 31.08.2009, but is against the order determining the debt due dated 31.08.2009, but is against the order dated 04.09.2013 rejecting the recall application for setting aside an ex parte decree.
The perusal of the above referred judgment reflects that an appeal filed against order rejecting an application for setting aside ex parte decree cannot be termed as final decree but an order. It was observed that the appellant was not required to make the pre-deposit as per the mandate of Section 21 of the RDB Act.
In the present appeal filed to impugn the order dated 29.06.2019 whereby the application bearing M.A. No. 145/2018 for setting aside the ex parte order/judgment dated 16.05.2018 cannot be stated to be one against final decree granted. Accordingly, it is held that there is no need of pre-deposit in the present appeal. Hence, the application is allowed and condition of pre-deposit is waived.
Misc. Application No.159/2024 is disposed of accordingly.
Appeal No. 440/2019
It is reflected from the record that the respondent no.1 filed O.A. bearing No. 563/2016. The appellants filed M.A. bearing No. 145/2018 under Order IX Rule 13 CPC for setting aside ex parte order/judgment dated 16.05.2018 and for restoration of the OA. Misc. Application No. 145/2018 was dismissed vide impugned order dated 29.06.2019. The DRT-II, Delhi in the impugned order has elaborated the contention raised on behalf of the appellants as well as the respondent no.1.
It is reflecting from the record that the appellants were served with the notice on 26.09.2016 and appeared through counsel on 09.12.2016. The appellants did not file the written statement within the stipulated period as such their written statement was not taken on record. The appellants were ordered to be proceeded ex parte vide order dated 03.03.2017. The appellants also filed application bearing I.A. No. 884/2017 under Order IX Rule 7 CPC for setting aside ex parte order dated 03.03.2017 which was dismissed vide order dated 23.11.2017 due to non appearance.
It appears that the appellants were well aware about the proceedings and no reason could be assigned by them for setting aside the ex parte order/judgment dated 16.05.2018.
Sh. Ashwini Kumar Gupta, Advocate for the appellants argued that the Advocate who was pursuing the matter before DRT did not inform the appellants about the ex parte order and appellants were not properly informed/briefed by the previous Advocate.
In the opinion of this Tribunal the said contention/arguments raised on behalf of the appellants are without any justification and does not inspire any confidence of this Tribunal. There is no ground to interfere in the impugned order. Hence, the appeal stands dismissed.