Angara Rajesh vs State Bank Of India

Anil Kumar Srivastava, Chairperson

THE APPELLATE TRIBUNAL :

Instant Appeal has arisen against a judgment and order dated 01.08.2017 passed by the Learned Debts Recovery Tribunal, Visakhapatnam in MA No. 91 of 2010 arising out of O.A. No. 101 of 2005 dismissing the M.A.

As per pleadings of the parties, facts of the matter are that one Angara Rajesh is the petitioner in the Miscellaneous application No. 91 of 2010. It is stated that his father namely Late Sai Babu and Defendant No. 3 in the O.A. Namely Angara Ravindra, son of Late Sai Babu (brother of Angara Rajesh/ Applicant) had availed the loan from the State Bank of India in 1997 for purchase of combine harvester. Loan account was classified as NPA and O.A. No.101 of 2005 was filed for recovery of the loan amount with interest. O.A. was dismissed in default of the Bank on 18.08.2008. It was informed by the Counsel for the Applicant that as and when an application for restoration will be filed, he would inform the Applicant. An application to set aside the dismissal order was filed by the Bank. Neither the Applicants Advocate contacted the Applicants nor Applicants contacted their Counsel. On 20th October, 2009, defendant Nos. 4 to 10 received the Demand Notice from the Recovery Officer. Then they informed the petitioner about the same. The O.A. was decided exparte on 19.05.2009 against the defendants. A Recovery Certificate for an amount of Rs.26,12,306/- with monthly rests was issued.

When the petitioner was informed about the exparte judgment on 20th October, 2009, he filed an application to set aside the exparte decree on 30th October, 2009 stating that they are residing at Visakhapatnam since 2003. But the notices were issued at their old addresses at Rajahmundhury. This fact was within the knowledge of State Bank of India. Notices were not issued or published at their correct addresses. Accordingly, a prayer was made for setting aside the exparte decree.

Opposition filed by the Bank before the Learned DRT stating that the O.A. was filed in the year 2005. Petitioner had put an appearance through Counsel. They did not file the written statement. Petitioner had received a notice in Rajahmundhury Address and engaged their Counsel. Despite shifting to the Visakhapatnam they were contesting the proceedings at their earlier addresses. They have full knowledge of the O.A. proceedings and the exparte decree. Accordingly, Application for setting aside the exparte decree is liable to be set aside.

Learned DRT dismissed the Application for setting aside the exparte decree on the ground that the petitioner had full knowledge of the O.A. proceedings. He appeared in O.A. proceedings through Counsel but did not put an appearance on subsequent dates. Even in the Miscellaneous petition which was filed in 2010, several adjournments were taken by the petitioners. Learned DRT did not find any sufficient ground to set aside the exparte decree and dismissed the Miscellaneous Application.

Feeling aggrieved by the impugned order, defendant Angara Rajesh preferred the Appeal.

I have heard the Learned Counsel for the parties and perused the record.

Learned Counsel for the Appellant would submit that Appellants have filed the vakalatnama of their Advocate in O.A. proceedings. They were not residing at Rajahmundhury their earlier address rather, shifted to Visakhapatnam at their new address. This fact was well within the knowledge of the Bank. Suit was dismissed on 18/08/2008 in default of the plaintiff petitioners. When Bank filed the Application for restoration, notices of the same were published at the Rajahmundhury Address. Hence, Appellant petitioner was having no knowledge of the restoration of the O.A. and could not appear in O.A. proceedings. Subsequently, when the O.A. was decided exparte and notice was issued by the Recovery Officer, then other defendants informed the Appellants. Thereafter, Appellant preferred the Application for setting aside the exparte decree.

Per contra, Learned Counsel for the Bank would submit that Appellant had full knowledge of the O.A. proceedings. He had put in appearance and filed the vakalatnama on 18.08.2008. When the O.A. was dismissed in default of parties although there was no requirement for issuance of notice in the restoration proceedings but even then, notices were published in the newspaper and the O.A. was restored and decided exparte. Respondent No. 1 in O.A. namely Smt. Angara Bhogavathi Lakshmi Tayaru is the mother of petitioner Sri Angara Rajesh while the defendant No. 3 Sri Angara Ravindra is the real brother of petitioner Appellant who were residing at the same address in Rajahmundhury as well as at Visakhapatnam. Accordingly, the petitioner Appellant herein is in collusion with other defendants. Accordingly, Learned DRT has rightly dismissed the MA for setting aside the exparte decree.

O.A. was filed by the Bank for recovery against the widow as well as two sons of Late Sai Babu along with the guarantors. Appellant is one of the sons of Late Sai Babu. Appellant as well as widow and Sri Angara Ravindra, another son of Late Sai Babu were residing at D.R. No. 86-16-3/B, Manthena Gardens Sangeetham Venkata Reddy Road, Rajahmundhry. O.A. was filed mentioning address of all the three defendants. The three defendants No. 1, 2 and 3 filed the vakalatnama of one Counsel Sri S.S. Sharma on 12.04.2007 before the learned DRT. Thereafter even if for the sake of arguments it is accepted that the defendants shifted to Visakhapatnam then the postal receipts as has been relied upon by the Appellant would show that about three defendants were residing at the same address i.e. 07/5/79 Pandurangapuram Visakhapatnam. It is nowhere the Appellants’ case that the defendants are living separately. Accordingly, it is clear that all the defendants were residing jointly.

O.A. was dismissed on 18.08.2008 in default of the parties. Order IX Rule 3 of Civil Procedure Code, 1908 provides that where neither party appears when the suit is called for hearing, Court may make an order that the suit be dismissed. Order IX Rule 4 C.P.C. provides for restoration of the suit dismissed in the order IX Rule (2) or Rule (3) of Civil Procedure Code. Order 9 Rule (4) provides as under:

Plaintiff may bring fresh suit or Court may restore suit to file.- Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceedings with the suit.

Learned Counsel for the Appellant would submit that when the suit was restored no notices were served upon the Appellants as they were not residing at the Rajahmundhry address, rather they had already shifted to Visakhapatnam which fact was duly within the knowledge of Bank. As far as the requirement of service in a petition for restoration of suit dismissed under Order IX Rule (3) Code of Civil Procedure is concerned, this matter was considered by the Hon’ble High Court of Orissa in the case of Pramila Behera versus Narayan Pati and another 2015, SCC OnLine Orissa

465 wherein it was held that the Court cannot put a condition for restoration of the matter by invoking the jurisdiction under Order 9 Rule 4 CPC, rather, the notice of restoration to the opposite parties was not necessary as they had not appeared in the Court below when the matter was dismissed for default and when the case was posted for taking steps for issuance of notice to them.

Provisions of order IX Rule (4) of Code of Civil Procedure are unambiguous. In the case at hand on the date of hearing Appellants were not present before the DRT and the O.A. proceedings were dismissed in default of the parties on 18.08.2008. Although when restoration application was filed, Learned DRT, in a precautionary measure in order to grant an opportunity to the Appellants, also passed an order for issuance of notice which were served through substituted service i.e. by publication. No doubt, publication was made at the Rajahmundhry address but at the same time when the Appellants had already appeared through their Counsel in the O.A. proceedings prior to dismissal, then they were under an obligation to pursue the case. It is also noteworthy that their Counsel Sri S.S. Sharma, Advocate, has not withdrawn his vakalatnama. Hence, he continues to represent them in the proceedings. There was no requirement for issuance of fresh notices for restoration of the case. Accordingly, I do not find any ground to accept the contention of the Learned Counsel for the Appellants that they were not informed by their Counsel about the restoration petition or restoration of the O.A. proceedings.

After restoration, Appellants did not appear before the Learned DRT and the O.A. proceedings were conducted exparte and exparte judgment was delivered on 19.05.2009 against the Appellants.

A plea is taken that the Appellants came to know about the exparte decree on 20th October, 2009 from the defendants who received the notices from the Recovery officer. There is nothing on record to show or prove as to how the other defendants communicated the Appellants about the exparte judgment passed by the Learned DRT. Had it been so, Appellants could have filed the affidavit of defendant who informed him about the exparte decree. Mere assertions could not be accepted as gospel truth. It should have been supported with the material which can prove that the other defendants communicated the Appellants about the exparte judgment on 20th October, 2009. Accordingly it cannot be accepted that Appellants came to know about the exparte decree on 20.10.2009. Accordingly it cannot be accepted that Appellants came to know about the exparte decree on 20.10.2009.

Accordingly, I am of the considered view that the Appellants had full knowledge of the O.A. proceedings. Learned DRT has rightly dismissed the Miscellaneous petition for setting aside the exparte judgment and order dated 19.05.2009. Only purpose of the Appellants is to drag the proceedings of O.A. which is pending since 2005. Accordingly, Appeal lacks merit and is liable to be dismissed.

ORDER

Appeal is dismissed. Impugned judgment and order dated 01.08.2017 passed by the Learned Debts Recovery Tribunal, Visakhapatnam in MA No. 91 of 2010 arising out of O.A. No. 101 of 2005 is confirmed.

No Order as to costs.

File be consigned to Record Room.

Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

Copy of the Judgment/ Final Order be uploaded in the Tribunal’s Website.

Order pronounced by me in the open Court on 30th day of April, 2024.