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Judgment
Ashok Menon, Chairperson
Heard learned counsel appearing for Appellant. Respondents were served but none appeared. No reply has been filed and, therefore, the matter was posted for ex-parte hearing.
Appeal is filed by Bank of Maharashtra challenging the impugned order in Misc. Application No. 22/2016, an application for stay in O.A. No. 33/2014 on the files of D.R.T.-I, Ahmedabad dated 04.04.2016, filed by the Defendants / Respondents. O.A. No. 33/2014 was filed by the Bank seeking recovery of Rs.32,61,145/-.
The history of the proceedings indicate that the aforesaid O.A. No. 33/2014 was earlier dismissed for default on 05.01.2015 by the D.R.T. and the Appellant had filed M.A. No. 8/2015 for restoration of the O.A. and the D.R.T. was also pleased to restore the said O.A. on 02.03.2015. Thereafter when the matter came up for hearing, none appeared for Defendants and consequently O.A. No. 33/2014 was allowed ex-parte against the Defendants on 16.06.2015. After such disposal of the O.A., Recovery Certificate was also issued and the Applicant Bank filed Recovery Proceeding No. 251/2015 before the R.O. Demand Notice was issued on 23.09.2015. It is seen that notice was served on the Defendants / Respondents on 27.10.2015 and the Bank filed service affidavit on 28.01.2016 and the Defendants had knowledge of the R.C. being issued against them in consequent to the disposal of the O.A. But they did not file any Appeal and instead approached D.R.T. on 03.03.2016 by filing Miscellaneous Application No. 22/2016 for setting aside the ex-parte decree and also for setting aside the Recovery Certificate and sought restoring the O.A. The Ld. D.R.T., after considering the submissions of both sides, observed that the O.A. was earlier dismissed for default and restored on 02.03.2015. The Defendant / Respondents did not have knowledge about the said restoration because no notice was served upon them. It is also observed that the Respondents came to know about the proceedings only on 19.02.2015 when the R.O. and the officer of the Respondent Bank informed the Defendants about the disposal of the O.A., during the Recovery Proceedings.
Learned counsel appearing for Appellant submits that what is stated in the impugned order about the Defendants not knowing about the disposal of the O.A. is not correct because, demand notice was served on the Defendants as early as on 27.10.2015 which is evidenced from the service affidavit filed by the Appellant Bank before the R.O. at Exh. ‘G’, and therefore, not only is the said application is barred by limitation and the relief not available to the Defendants, there is also no provision for restoring the O.A. which has been disposed of on merit, even if it is ex-parte. Order 9, Rule 13 of the C.P.C. will not be strictly be applicable to the proceedings before the D.R.T. and only the general principles of law are applicable. The only remedy that was available to the Defendants in case of ex-parte order was to file an Appeal before this Appellate Tribunal in accordance with Section 20 of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 (for short the RDDB&FI Act). The Defendants have not exercised that right of Appeal, instead they filed M.A. No. 22/2016 to get the ex-parte order set aside and the R.C. be recalled which is not the remedy available to them. Therefore, on this ground the learned counsel prays for setting aside the impugned order of the D.R.T.
On going through the order in details, I agree with the learned counsel for Appellant that the M.A. No. 22/2016 is barred by limitation because it has been filed on 03.03.2016 where the service of demand notice pertaining to the issuance of the Recovery Certificate was already received by the Defendants / Respondents as early as on 27.10.2015 and hence the finding of the Ld. P.O., D.R.T. that the Defendants came to know about the disposal of the O.A. only on 19.02.2015 is erroneous and, therefore, the finding of the D.R.T. that the M.A. is well within the period of limitation cannot also be sustained.
Secondly, there is no provision, either under Section 19 (25) or Section 22 of the RDDB&FI Act, to file application for restoration and the only option left to the aggrieved Defendants in case R.C. has been issued is to challenge the same under the provisions of Section 20 of the said Act. But exercising the general power of the D.R.T., restoration of O.A. and setting aside ex-parte may be feasible.
Hence, I am in perfect agreement with the submission of the learned counsel that the Ld. P.O., D.R.T.-I, Ahmedabad, has gone wrong in restoring the O.A. after setting aside the order passed ex-parte.
In view of above, Appeal is allowed and the impugned order dated 04.04.2016 in M.A. No. 22/2016 is hereby reversed and set aside.
All Miscellaneous Applications, if any, are dismissed as infructuous.