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Judgment
S.N.H. Zaidi, J
No formal reply to the appeal has been filed by the Bank.
The notice of appeal sent to respondent No. 2 through Speed Post has returned unserved. However, as per affidavit of service, besides sending the notices by Speed Post, efforts were also made for service of dasti notice upon the respondents and the notice of respondent No. 2 was received by one of its Directors Mr. M.S. Randhawa on 2.5.2013. Service of notice upon respondent No. 2 is, therefore, sufficient.
Heard parties Counsel on appeal. The instant appeal has been directed against the order dated 14.8.2012 whereby the Presiding Officer of DRT-II, Chandigarh has dismissed the application (I.A. No. 12/2012) filed for condonation of delay in filing the recall/restoration application and has also dismissed the recall application No. 2828/2011 filed qua the order passed in O.A. No. 496/2006.
Mr. Nabi points out that the appellants are the legal representatives of respondent Nos. 5(i) and 5(ii), who were the legal representatives of one Bhagwant Singh, the alleged guarantor/mortgagor of the property in question. He submits that during the pendency of the O.A. defendant/respondent Nos. 5(i) and 5(ii) had died but their legal representatives were not substituted and the O.A. was finally disposed of on 2.6.2011. He further submits that no notice of the O.A. was ever sent or served upon the appellants and after the disposal of the O.A., one Jagjit Singh, a relative of the appellants, had visited Tarn Taran Tehsil of Jalandhar where he met with the Patwari, who informed him that a Bank officer had made the inquiry about the property in question and had inspected the same and gave him a copy of the notice to him, which was issued by the R.O. under Rule 2 of the Second Schedule to the Income Tax Act and said Jagjit Singh had informed the appellants, who are NRIs and reside in New Zealand. Mr. Nabi further submits that on coming to know these facts, the appellant immediately came to India on 2.11.2011 and engaged a Counsel and entered the appearance through Counsel on 9.11.2011 and the Counsel inspected the concerned file on 15.11.2011 and thereafter the recall application was filed on 14.12.2011 along with another application I. A. No. 12/2012 seeking condonation of delay in filing the recall application. He also submits that the appellants were not aware of the proceedings before the DRT and the restoration application was filed within 30 days from the date of knowledge of the order impugned, as per Article 123 of the Limitation Act. According to him, though the appellants had sufficiently explained the cause of delay in filing the recall application, but the learned Tribunal below did not properly consider those circumstances and dismissed the application for condonation of delay.
Mr. Tanwar, on the other hand, opposes the above contentions and submits that the Tribunal below has rightly observed that there was no reason for Jagjit Singh to visit the Tehsil and to meet Patwari qua the land in question and how the Patwari came to know about the pendency of the R.C. before the R.O.
I have considered the submissions of the parties Counsel and looking to the facts and circumstances of the case. I found that since the appellants were admittedly not substituted in the O.A. after the death of the defendant Nos. 5(i) and 5(ii), therefore, there was no occasion for the appellants to know about the pendency of proceedings of the O.A. before the Tribunal below or about its ex parte disposal qua them. There appears to be no reason to disbelieve the facts and circumstances as averred by the applicant/appellant about the cause of delay in filing the recall application. The cause of delay as explained by Mr. Nabi appears to be sufficient and acceptable. Since the order impugned has been made without properly considering the circumstances of delay, hence it cannot be allowed to sustain. The appeal is accordingly allowed and the order impugned, is set aside and the application I.A. No. 12/2012 seeking condonation of delay in filing the recall restoration application is allowed. The Tribunal below is directed to dispose of the recall restoration application in accordance with law. Parties to appear before the Tribunal below on 3.6.2013.
Copy of the order be furnished to the parties and be also sent to the DRT concerned.