Lancer Publishers Private Limited and Another vs Oriental Bank of Commerce

A.K. Srivastava, J. (Chairman)

This appeal has been filed against order dated 18.7.2001 passed by learned Presiding Officer of DRT-I, Delhi in O.A. No. 756/95 Oriental Bank of Commerce v. Lancer Publishers Pvt. Ltd. and Anr..

By the impugned order learned Presiding Officer of the Tribunal below has rejected an application of the appellants for restoration of their application under Order 9 Rule 13 of CPC, read with Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which was dismissed for non-prosecution on 6.7.2001. Feeling aggrieved with the impugned order, this appeal has been filed.

Notice in this appeal was issued to the respondent Bank for 24.9.2001. Dasti notice was given to the appellant for service on the respondent Bank and the appellants were directed to file affidavit of service. In compliance, the appellants filed affidavit of one Capt. Bharat Verma which states that the copy of the order passed by the Appellate Tribunal was taken to the concerned branch of the respondent Bank and was shown to them on 6.9.2001 but the concerned Branch Manager refused to accept notice; that thereafter the notice was served on the respondent Bank by Registered A.D. post and Courier on 8.9.2001 and that the receipts are annexed. On perusal of the acknowledgement receipt, it is to be found that there is a seal of receipt of the respondent Bank. Accordingly, the respondent Bank stands served.

Despite service of notice on the respondent Bank, no one appeared either on 24.9.2001 or today. Consequently, Mr. Hanu Bhaskar, appearing for the appellant has been heard.

The facts of the case appear to be that an ex pane decree was passed in the said O.A. on 6.8.1998; that an application under Order 9 Rule 13, read with Section 22(2)(g) of the said Act had been moved on 24,8.1999; that the Tribunal below fixed 23.5.2000 and thereafter 20.10.2000 for hearing in that application; that on 20.10.2000, the matter was heard by the Tribunal below and orders were reserved; that the Tribunal directed that the orders would be given on 1.2.2001; that on that date, there had been change of the Presiding Officer of the Tribunal below and, therefore, 12.3.2001 was fixed for re-hearing in the matter; that on that date, appellants'' Counsel could not appear and the Tribunal below gave 6.7.2001 as the next date of hearing and that on that date, since no one appeared on behalf of the appellant, the application was dismissed in default.

After the application under Order 9 Rule 13 was dismissed in default, the appellants moved a restoration application on 13.7.2001. That application was supported with an affidavit. Learned Presiding Officer of the Tribunal below heard that restoration application and by the impugned order, he has dismissed the same.

In this appeal, despite notice to the respondent Bank, no one has come to oppose the application. I have heard learned Counsel for the appellant and I am inclined to allow this appeal. The only ground taken in this appeal is that on 6.7.2001, defendant No. 2 could not appear in the Tribunal below as he was suffering from vomiting and loose motions and had been advised bed rest for five days and that he had instructed the Advocate to appear before the Tribunal, who did appear in the Tribunal at about 11.25 a.m. on 6.7.2001 but by that time, the application under Order 9 Rule 13 had been dismissed. Learned Counsel appearing for the appellants had taken the entire responsibility on himself and says that due to his non-reaching the Tribunal in time, the appellants have suffered. He has expressed his regrets for non-appearance on earlier dates as well. For the date of 6.7.2001, he says that since the matter before the Tribunal was listed for orders and was at Item No. 13, he first finished his work in Karkardooma Courts and could reach the Tribunal only at 11.25 a.m. Orally he submitted that due to his personal misunderstanding, he could not reach the Tribunal below at 10.30a.m. to prosecute the application.

The question before me is whether a party should suffer for the default of his Advocate. In Delhi, the Courts are situated at different places and after 9 a.m. usually there is very heavy traffic, Therefore, if an Advocate has to reach from one Court to the other, it takes a little bit time. Therefore, if Mr. Hanu Bhaskar, Advocate of the appellants, is saying that after finishing his work in Karkardooma Courts, he reached the Tribunal below at 11.25 a.m. I have reason to believe him, keeping in mind the distance between Karkardooma Courts and the DRT at Rajendra Place. Therefore, in the interest of justice. I am of the view that the application under Order 9 Rule 13 read with Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, should be restored and the appellants should be permitted to prosecute that application. Consequently, the appeal is allowed. The impugned order dated 18.7.2001 is set aside and the application for restoration of application under Order 9 Rule 13 of CPC, read with Section 22(2)(g) is allowed.

Parties are directed to appear before the Tribunal below on 30.10.2001.

Copy of this order be given Dasti to the appellants and be sent to the concerned Tribunal.

Since the respondent Bank has not appeared in this Appellate Tribunal, it would be proper for the Tribunal below to issue fresh notice in application under Order 9 Rule 13 of CPC to the respondent Bank which is the applicant in O.A. No. 756/95.