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Judgment
Ranjit Singh, J
O.A. filed by the Bank of Baroda was allowed on 24.1.2013 for recovery of a sum of Rs. 12,21,28,879/- with interest and cost. The appellants were issued summons in the O.A. and upon their failure to appear before the Tribunal, they were declared ex parte and final judgment was pronounced on 24.1.2013. Pleading that the appellants did not receive any summons in this case, they filed M.A. No. 81/2013 before the Tribunal below for the recall of the ex parte order passed in the O.A. The Tribunal below has dismissed this M.A. on 14.10.2013 and accordingly the appellants have filed the present appeal to impugn the said order.
The sole ground advanced by the appellants to pray for recall of the order passed in the O.A. was that they did not receive summons in the case and that the Bank did not take proper steps to serve the summons. The Counsel for the appellants has highlighted this aspect before me as well by pointing out that only a clerk of the Counsel for the Bank had filed an affidavit of service on 26.4.2012, stating that he had visited the addresses of the appellants and other defendants (defendants 1 to 4 in the O.A.) on 22.4.2012 and the persons present there had refused to take the summons. The appellants accordingly would plead that there was no proper service on them and as such they were not aware of the pendency of the O.A. The plea accordingly is that the order proceeding ex parte against the appellants would deserve to be recalled on this ground.
Counsel would highlight certain portions of the impugned order whereby the Tribunal has presumed service on the ground that the judgment was sent by Registered Post and the same had not returned, leading to as presumption that the appellants had received the copy of the judgment. While rejecting the plea of the appellants that they came to know of the order only on 9.3.2013, the Tribunal below has taken note of the fact that the Bank had filed reply to the S.A. No. 99/12 filed by the appellants enclosing therewith a copy of the O.A. with the reply, which was served on the Counsel for the appellants on 10.10.2012. As observed by the Tribunal, this would show that the appellants had the knowledge of the O.A. at least on 10.10.2012. The Tribunal has held that this would show that the appellants did not take any action to appear and participate in the O.A. for which there is no reasonable explanation.
It is also observed that the judgment was passed on 24.1.2013, copy of which was despatched to the defendants on 1.2.2013. Since this copy was despatched by Registered Post which had not returned, the Tribunal drew a presumption that the appellants had received the copy of the judgment and so disbelieved the plea of the appellants that they came to know about the O.A. only on 9.3.2013.
The appellants had filed the application for the recall of the order on 13.5.2013, which was termed as belated and explanation furnished in the I.A. was also found not satisfactory.
Undoubtedly, the Tribunal below has placed reliance on the affidavit filed by the clerk of the Counsel. The copy of this affidavit has been placed on record. In para 3 of this affidavit, the deponent clerk has stated as under:
"3. I say that on behalf of and under instructions from Bank of Baroda, Asset Recovery Management Branch, Parliament Street, New Delhi-110001, visited the respective addresses of defendant Nos. 1 to 4 on 20.4.2012, I further say that at all the addresses the persons present at the respective address refused to take/receive the notice despite being informed of the fact that the notices were issued by this Hon'ble Tribunal in O.A."
The Counsel for the appellants would submit that there is no indication as to who all were found present at the respective addresses. The affidavit does not make mention about the names of the person who had refused to accept the notices. The deponent thereafter states to have affixed the notices on the wall of the entrance of the said addresses. The deponent filing the affidavit has also stated that he had posted the notices at the addresses of the defendants (including the appellants). Though the Counsel for the appellants had made reference to some other affidavits also filed by the Manager of the Bank but these affidavits would have no relevance as these were in regard to the state of service during the recovery proceedings. There is some substance in this position as the affidavit filed in June/July and August 2013 may not have any relevance for deciding the aspect of service on the appellants as by then the appellants had already filed an application for recall of the order on 13.5.2013.
The perusal of the record would show that while the O.A. filed by the Bank was pending adjudication before the DRT-II, Delhi, the appellants had filed S.A. No. 99/2012 on 2.7.2012. On 6.7.2012, DRT-I, Delhi had granted one month's time to the appellants to vacate the premise and hand over the possession to the Bank subject to filing affidavit-cum-undertaking that in case of non-compliance, the Bank would be at liberty to proceed as per law. While the parties were present before one Tribunal in a pending S.A., a statement came to be made before DRT-II, Delhi that the appellants could not be served by normal process, and service by way of publication was ordered on 18.7.2012. The Counsel for the appellants would point out that the Bank was simultaneously taking time to file reply to the S.A. without bringing to the notice of the appellants about the pendency of the O.A. On 30.8.2012, the Bank informed the Registrar that the publication has been done in the O.A. Accordingly, the appellants were proceeded ex parte on 20.9.2012.
Undisputed fact on record would also show that on 5.10.2012 the Bank informed the DRT-I, Delhi that vacant possession of the property was handed over. The reply in the S.A. was filed on 8.10.2012 which is relied by the Counsel for the respondent to highlight that the copy of the O.A. was annexed with the reply so filed to attribute knowledge to the appellants about the pending O.A. Still, the appellants failed either to participate in the O.A. or any other action and the ex parte judgment came to be passed in the O.A. on 24.1.2013.
The Counsel for the appellants has attempted to explain that the service was sought to be effected on the appellants at the addresses of the property possession of which had been taken by the Bank. This was a state subsequent to the order in the O.A. The clerk of the Counsel for the Bank had gone to effect service on the appellants and others on 20.4.2012 and then the possession of the property, i.e., S-52, Ground Floor, Greater Kailash was very much with the appellants. The fact that the Bank had filed reply to the S.A. where the copy of the O.A. was enclosed is not denied. To case out of this situation, the Counsel for the appellants would submit that supply of copy of the reply to the Counsel for the appellants cannot be a substitute for service on the appellants. That may be so, but the fact that the same Counsel was representing the appellants in the S.A. and had subsequently filed this application for recall of the order passed in the O.A. cannot be ignored.
Certainly the deponent filing this affidavit could be expected to be more specific while disclosing the state of service, but the contents of the affidavit would disclose that the deponent was talking about effecting service on defendant Nos. 1 to 4 two of which are the appellants. The deponent should have been more specific and disclosed the addresses to which he had gone for serving the notices and further should have disclosed as to who all had refused to take notices, still it is not possible to say that this affidavit is so vague that it can be discarded out of consideration so far as effecting service on the appellants is concerned.
I could have still viewed this aspect with some more circumspection if the appellants had been able to explain as to why and under what circumstances they failed to take action to participate in the O.A. even after 10.10.2012 when the copy of the reply was handed over to the Counsel for the appellants and it contained the record of the O.A. Mr. Aggarwal appearing for the respondent-Bank has made reference to that part of the reply where this fact is so averred. There is no explanation forthcoming in this regard. Merely because the Tribunal below has made certain observations which may not appear palatable to the appellants in regard to the presumption of service etc. the real facts emerging from the record cannot be ignored. What can reasonably be inferred from the record is that an effort was made to effect service on the appellants at their given addresses and in this regard, the Bank had placed reliance on the affidavit of service filed by the clerk of the Counsel. If, indeed, the clerk of the Counsel had been sent to effect service, there will hardly be any objection in his filing this affidavit disclosing the state of service. The Counsel for the appellants did not otherwise raise any objection that the clerk of the Counsel could not be so sent to effect service on the defendants in the O.A.
As already noticed, this aspect would otherwise have been significant if the appellants could have succeeded in explaining as to how they failed to take notice of the pendency of the O.A. once this was disclosed in the reply when copy of the O.A. was enclosed therewith. No satisfactory explanation is forthcoming in this regard. May be that the Tribunal has gone a little overboard in recording certain observations for presuming service once the postal articles were not returned and also the observation that sending O.A. paper book in all the addresses would be waste of precious paper and threat to forest. These observations are uncalled for and ought to have been avoided. The Courts and Tribunals are expected to deal with the issues arising in the case listed before them and have to avoid making any such observation which are not needed for the ultimate decision in the case.
In the present case, the Bank had not only made one attempt to serve the appellants, but had relied upon a three-pronged aspect of service which would emerge from the record. The affidavit of service filed by the person effecting service would indicate refusal on the part of the appellants. The appellants cannot plead that they were not present at the respective addresses on 20.4.2012. Thereafter, publication was also done which though is objected to on the ground that the service by way of publication could not have been ordered in the manner it was done. Except for so stating, no arguments are addressed before me as to how the service by way of publication was bad and in law and on what ground. Even if both these aspects are ignored, the appellants have to do a lot of explaining in the background that they were served with the reply containing copy of the O.A. The Counsel for the respondent-Bank was not fully off the mark when he stated that the Counsel remained negligent in perusing the reply to plead ignorance of the O.A. copy of which was enclosed, then no consideration can be allowed to the appellants for such a negligence.
In addition, the Counsel for the respondent has made reference to the proviso contained under Order 9 Rule 13 which reads thus:
"Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim."
The Counsel would accordingly urge that as per this proviso Court is not to set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the parties had a notice of the date of hearing. I find that this proviso may apply in this case. Even if it is taken that there was some irregularity in effecting service on the appellants, the ex parte decree passed by the Tribunal below cannot be set aside if a Court or Tribunal is satisfied that the appellants had a notice of hearing and sufficient time to appear and answer the claim. Obviously, the Counsel for the respondent would refer to the fact that copy of the reply to the S.A. was served on the Counsel for the appellants on 10.10.2012 and thus the appellants had notice of the pending O.A. before a Tribunal located adjacent to the Tribunal where the S.A. was pending. If the appellants or the Counsel fail to take any action despite this and allows the O.A. to be decided ex parte and thereafter chooses to file application after lapse of considerable time, this proviso may come into play.
Though the Counsel for the appellants has made submission before me on the basis of documents on record and has advanced arguments as noticed above, but has also handed over copies of some judgments which were not cited before this Tribunal. The Counsel has handed over the copies of judgments in the cases of--
(a) B. Madhuri Goud v. B. Damodar Reddy, 2012 (7) SCALE 230.
(b) D.J. Enterprises Ltd. & Anr. v. IFCI Ltd. & Ors., W.P. (C) No. 10219/2009, decided by Delhi High Court on 4.5.2010.
(c) Pee Gee Exports Pvt. Ltd. v. Gargaya Research Instruments & Ors., W.P.(C) 5900/2008, decided by Delhi High Court on 25.9.2012.
(d) Devineni Padmaja v. Vundavalli Srinivasa Rao, VII (2012) SLT 229 : IV (2012) BC 546 (SC) : 2013 (2) Mh.LJ 184 (SC).
(e) Reena Sadh v. Anjana Enterprises, IV (2008) SLT 116 : AIR 2008 SC 2054.
(f) Sri Naresh Chandra Agarwal v. Bank of Baroda & Ors., II (2001) SLT 1 :AIR 2001 SC 1253.
(g) Rabindra Singh v. Financial Commissioner, Cooperation, Punjab & Ors., III (2008) CLT 32 (SC) : V (2008) SLT 567 : (2008) 7 SCC 663.
(h) TVC Skyshop Ltd. v. Reliance Communication and Infra Ltd., 2013 (9) SCALE 496.
(i) Tea Auction Ltd. v. Grace Hill Tea Industry & Anr., VI (2006) SLT 613 : IV (2006) CLT 64 (SC) : AIR 2007 SC 67.
(j) Motia Rani & Ors. v. Punjab National Bank & Ors., I (2004) BC 170.
(k) Neelima Sheetal Kitchloo v. Bank of India, I (2015) BC 130 : Appeal No. 97/2014, decided by DRAT, Delhi on 21.3.2014.
(l) S. Garesharaju (D) Thr. L.Rs. & Anr. v. Narasmma (D) Thr. L.Rs. & Ors., 2012 (4) SCALE 152.
(m) Collector Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., 1987 (SLT Soft) 185 : AIR 1987 SC 1353.
In B. Madhuri Goud's case (supra) the Court has held that the delay shall not be condoned if the applicant has come before the Court praying for condonation of delay with unclean hands. This was a case where condonation of delay of 1236 days in filing the appeal before the High Court was sought. The plea which was accepted by the Single Judge of the HC was that the Advocate was remiss in filing the appeal though papers were handed over to him. The Hon'ble Supreme Court found that the averments in this regard were vague and thus set aside the impugned order passed by the High Court.
In Sri Naresh Chandra Aggarwal's case (supra) a Division Bench of the Delhi High Court had allowed the application for setting aside the decree which was ex parte. In this case one of the defendants had died where the application was made for bringing on record his legal heirs. The Court has noticed that having made such application, it was bounden duty of the plaintiff as also of the Court that all legal heirs -- the proposed legal representative were duly served. The Trial Court in this case was of the view that this was a case of irregularity in service of summons and that the other two brothers of the appellant having participated in the proceedings in the suit, there was no material prejudice to the appellant. This was not found to be a correct approach and the order passed by the High Court was set aside, setting aside the decree. This judgment thus obviously was passed in the fact-situation in that case which are not very akin to the present case.
In Rabindra Singh's case (supra), the Court was dealing with the ex parte decree passed in a suit for partition. The issue before the Court was whether the Court has jurisdiction in an appeal filed for setting aside the ex parte decree. The Hon'ble Supreme Court has held that even if there is no express provision, the Court has ample jurisdiction to set aside the ex parte decree. What weighed with the Court was that the respondent despite being aware of the appellant's address had intentionally sent notice to wrong address. The appellant in this situation was held entitled to get an opportunity of hearing to ensure compliance of principle of natural justice. Thus, this judgment may also have not much relevance.
The Hon'ble Supreme Court in this case only has made certain observations in regard to the substituted service which is meant to be resorted to serve the notice at the address known to the parties where he had been residing last. The Court has also observed that the knowledge on the part of the constituted attorney would not be such which would come in the way of the appellant in maintaining the application for setting aside the ex parte decree. There is difference in a case where the knowledge is to a Counsel representing the party vis-a-vis a knowledge to the duly constituted attorney.
In the case of TVC Skyshop Ltd. (supra), the Hon'ble Supreme Court has considered the provisions of Order 9 Rule 13 in an extensive manner. Reference is made to the case of Motia Rani & Ors. in support of the plea in regard to the condition prescribed for directing substituted service. The Bank in this case has not relied only upon service which was effected by way of publication. In the present case the Bank has relied upon a service effected on the respondent by different modes as already noticed. Under Order 9 Rule 13, CPC, an ex parte decree passed against a party can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendants or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. The issue in the present case is only in regard to the service of summons to see if these were duly served on the appellants or not. Order 9 Rule 13, CPC has been interpreted as a provision conferring power upon Court to issue certain directions. A discretionary jurisdiction has been conferred upon the Court for setting aside an ex parte decree not only when the party was able to prove sufficient cause for non-appearance, but also where he is able to show that the summons were not duly served. Since non-appearance in this case is for want of service what is to be seen is whether it can be held that the service has been effected on the appellants. From the detailed discussion held above, I am of the view that the Bank had been successful in showing that the service had been effected on the appellants and despite that, the appellants failed to take any action to appear in the O.A. or to defend the same. In view of the above, I am of the view that no case for interference in the impugned order is made out. The appeal is accordingly dismissed.