Canara Bank vs S.K.S. Beverages And Ors.

S.N.H. Zaidi, J

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.

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

While allowing the O.A. ex parte, the learned Presiding Officer of the Tribunal below had observed that notices of the application were sent to the defendants but despite sufficient service through publication, neither they appeared nor filed written statement and the case was ordered to proceed ex parte against them. The notice of the O.A. was not served upon the defendants personally and was found served through publication. In its impugned order, the Tribunal below has observed that notices to the defendants were sent on all the addresses available with the Bank, except on the address of Village Pachanka, Tehsil Hathin, Distt. Faridabad, Haryana and as such the defendants/respondents were not found sufficiently served on all the available addresses and accordingly the application was allowed.

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.

Considering the above circumstances, I am of the view that since respondent Nos. 3.2 to 3.4 were impleaded only as legal representatives of the deceased guarantor/mortgagor Noor Mohammed, who had executed the deeds of guarantee and mortgage with his address of Village Pachanka, Tehsil Hathin, Distt. Faridabad, which appear to be their ancestral house, therefore, notices qua O.A. should have been sent to them at that address and since it is an admitted case of the appellant-Bank that no notice was sent to the respondents at Village Pachanka, therefore, the observations of the Tribunal below in the impugned order that the applicants (respondents herein) have not been served sufficiently on all the addresses available with the respondent-Bank is in conformity with the record.

As per Section 22 of the RDDBFI Act the Tribunal below is not bound by the procedure laid down by the CPC, but it is guided by the principles of natural justice and one of the cardinal principles of the natural justice is that no party should be condemned unheard. Admittedly, respondents were not heard when the judgment and order dated 29.4.2010 was passed by the Tribunal below.

In view of above. I find no infirmity or illegality in the order impugned and this appeal being devoid of any force is liable to be dismissed. The appeal is accordingly dismissed without any order as to cost.

Parties are directed to appear before the Tribunal below on 4.12.2012. Copy of this order be furnished to the parties as per law and one copy be also sent to the Tribunal below.