Lalit Kumar Aggarwal vs TFCI And Ors.

Ranjit Singh, J

This appeal is directed against the order dated 1st January, 2013 whereby I.A. Application filed by the appellant seeking condonation of delay in filing the Miscellaneous Application has been dismissed on the ground of being devoid of any merit. Consequently, Miscellaneous Application is also dismissed by the Tribunal below. Aggrieved against the same, the present appeal is filed by the appellant. M.A. No. 53 of 2007 was filed on 16th October, 2007 by appellant Lalit Kumar Aggarwal. This was the application filed under Order 9 Rule 13, C.P.C. read with Section 22 of the Recovery of Debts Due to the Banks and Financial Institutions Act (for short, RDDBFI Act). Prayer made in the application was for setting aside the ex parte order dated 13th April, 2005 passed in O.A. No. 59 of 2004. As per the appellant/applicant, he was not residing at the address 117, Avtar Singh Marg, Agra Cantt. and was living at 29, G.C. Shivare Road, Agra Cantt. The former residential address was of one Ms. Nidhi. Accordingly, it was pleaded that notice had been sent on the wrong address though the new address of the appellant/applicant was within the knowledge of the Bank.

Since this Miscellaneous Application had been filed with delay, I.A. No. 451/2007 was filed under Section 5 of the Limitation Act for condoning the delay in filing the Miscellaneous Application. It was pleaded in this application that the appellant came to know about the recovery proceedings in September 2007 and on account of his continued illness, he was unable to approach the Tribunal for setting aside the ex parte order passed on 13th April, 2005. The appellant had placed on record copy of the medical certificate issued in October 2010 which was illegible one. This certificate had been issued by Dr. Anil Ranjan and was found to be a copy of the certificate typed on computer.

Notice of the applications was issued to the respondent Bank which filed reply. The Bank had opposed the prayer made in the applications. The Tribunal below has considered the prayer made in both the applications. It is found that the ex parte order was passed on 13th April, 2005. One of the defendants in the OA was Shri Gaurav Aggarwal. He had moved Miscellaneous Application No. 77 of 2006 for setting aside the ex parte order dated 13th April. 2006. This application was dismissed on 29th August, 2007. It is only thereafter the present appellant had taken over the case in his hands and moved Miscellaneous Application No. 53 of 2007 pleading the same and identical grounds. The Tribunal, on this basis, formed an opinion that this application was filed with intent to stall the recovery proceedings. The Tribunal below found from the deed of guarantee executed by Mr. Gaurav Aggarwal, defendant No. 3, was not stranger to the appellant being his son. Both son and father had given their address as 117, Avtar Singh Marg, Agra Cantt. in the documents executed by them. Both of them have now claimed that they are living at 29, G.C. Shivare Road, Agra Cantt. The Tribunal below has justifiably recorded that it will be highly improbable that father and son living at the same address gained knowledge about the ex parte order at different point of time. Miscellaneous Application filed by the son of the appellant was also on the identical grounds. It is only when son lost the battle before the Tribunal below to seek setting aside of the ex parte order that the father took reigns from him and only thereafter filed Miscellaneous Application No. 53 of 2007 with intent to stall the recovery proceedings.

The Tribunal below has also examined the medical record placed by the appellant and the same was found to be not inspiring confidence at all. As is recorded by the Tribunal below the appellant while moving this application had removed the original medical certificate from the bunch of papers and attached some illegible copy of the medical certificate. The Tribunal, after minute examination of the record found and has noticed that the bunch of papers comprising the Miscellaneous Application was in ink, but page 37 encircled like other pages was not in ink. The Tribunal below from this had concluded that the medical record as was given in regard to the sickness of the appellant was illegible and it could not be discerned or could not be read even by using magnifying glass. It was, thus, viewed firstly that the appellant had not placed the original medical certificate and secondly perhaps it was done so to mislead the Tribunal.

The Tribunal below in my view is fully justified in drawing adverse inference from the manner the appellant has behaved. Ex parte order was passed in the year 2005 and the appellant having remained unsuccessful in seeking relief against the same one after the other have only adopted this mode to delay the proceedings. Accordingly, no case for interference in the appeal is made out. The order under appeal is fully justified. To be fair to the proxy Counsel appearing for the appellant, he had prayed for adjournment on the ground that the arguing Counsel is very unwell. The case was fixed for final arguments on 14th July, 2014. The same Counsel had appeared before this Tribunal on 14th July, 2014. Request for adjournment was made to argue the matter. Adjournment was granted for today with a clear understanding that the arguing Counsel would come and appear to make submissions in this case. Today, the Counsel has repeated be request for adjournment. Prayer for adjournment was also made on the ground that the appellant would wish to file rejoinder. That prayer was declined yesterday. Today, again the same prayer is repeated stating that the copy of the rejoinder has been served to the opposite Counsel and be taken on record. Since the prayer was declined yesterday, the rejoinder cannot be taken on record today. This prayer is also declined. Since there is no merit in the appeal, the same is accordingly dismissed.