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Judgment
The appellants are the legal heirs/representatives of one Mr. Subhash Sethi who was one of the defendants in an Original Application(O.A.) filed by respondent no.1 under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993(' RDDBFI Act' in short) for recovery of its outstanding dues which had been lent to respondent no.2 herein(borrower Company). Besides Mr. Subhash Sethi in his capacity as the guarantor/mortgagor the borrower Company and two others who were also guarantors were also impleaded in the O.A. That O.A. was allowed vide ex parte final order dated 09.09.1998 and a recovery certificate was ordered to be issued against the borrower Company and two guarantors other than Mr. Subhash Sethi. However, it was ordered that decretal amount could be recovered from the sale of leasehold rights in the property in question which defendant Mukesh Sethi claimed to have been taken on lease for thirty years from Mr. Subhash Sethi who was his brother also, and which leasehold rights had been mortgaged in favour of the financial institution SIDBI. That property in Gurgaon, details of which have been noticed by DRT in the impugned order dated 08.11.2029 as the property in question, stands sold now by the recovery officer in execution proceedings initiated upon receipt of recovery certificate from the Presiding Officer of the DRT.
During the pendency of execution proceedings defendant-CD Mr. Subhash Sethi had expiredin February,2006 in U.K. where he was settled alongwith his family, appellants herein. By that time recovery officer had already started execution proceedings. The appellants claim that during his lifetime late Mr. Subhash Seth never received any summons from DRT in the O.A of SIDBI. In fact, they have also been claiming that Mr. Subhash Sethi had neither taken any loan nor had he mortgaged his property. They claim that they came to know about the ex parte decree only in April,2016. Appellant Mamta Sethi, widow of late Mr. Subhash Sethi had then approached Hon'ble Punjab and Haryana High Court and the son of Mr. Subhash Sethi had moved an application before the DRT under Order IX Rule13 CPC for setting aside of ex-parte decree against late Mr. Subhash Sethi. Finally, the High Court had disposed of the writ petition of appellant Mamta Sethi vide order dated 27.08.2018 with a direction to the DRT to decide the pending applications under Order IX Rule 13 CPC and folr condonation of delay within fixed period. Thereafter the DRT took up that application for hearing as also the application no. 407/2018 which had been filed for condonation of delay in filing application under Order IX Rule 13 CPC. Vide impugned order dated 08.11.2019 the DRT refused to condone the delay and consequently the application no. 88/2017(old no. 41/2017) under Order IX Rule 13 CPC also was dismissed vide same impugned order dated 08.11.2019. The appellants have now challenged the said order of DRT by way of the present appeal.
The respondent-assignee of debt had opposed the application for condonation of delay on may grounds which have been noticed by the learned DRT in the impugned order relevant paras therefrom are being re-produced below:-
"1. This is an application for condonation of delay filed by one of the LR's of deceased defendant no.4 in OA NO.302/1977 decided at Jaipur on 09.09.1998 in case titled
"3. The OA was filed for a recovery of Rs.65,07,624.00. The OA was decided on 09.09.1998 and the Recovery Certificate was issued on the same day. The final order in the OA, which culminated in the Recovery Certificate was for a sum of Rs.65,07,624.00 along with costs of the proceedings and future interest @17% p.a. with quarterly rests from 22.02.1997 till realization from defendants No.1 to 3 jointly and severally and was further entitled to recover this amount by sale of mortgaged property of defendant No.4 Subhash Sethi and leasehold rights of defendant No.1 in the above property by sale of hypothecation goods and shares also.
Following is the operative part of the final order passed on 09.09.1998:-
ORDER
"The applicant-bank is entitled to recover a sum of Rs.65,07,624/- along with costs of the proceedings and future interest at the rate of 17% p.a. with quarterly rests from 22.02.1997 till realization from the defendants No.1 to 3 jointly and severally and is further entitled to recover this amount by sale of mortgaged property of the defendant No.4 and leasehold rights of the defendant No.1 in the above property and by sale of hypothecation goods and shares also."
During the course of recovery proceedings, the debt was assigned to India SME Asset Reconstruction Company Limited (ISARC). The defendant No.4 Subhash Sethi in the OA. expired on 06.02.2006 and in the recovery proceedings the LR's sought to come on record. They filed as MA bearing No.88/17 and filed Amended Memo of Parties wherein deceased defendant No.4 Subhash Sethi was sought to be replaced by his legal heirs-
4A Mamta Sethi
4B Navin Sethi
4C Anuj Sethi
[all residents of 4, Lady Brook Road, Bramhall, Stockport, SK73LZ, United Kingdom showing the new address.]
The MA was filed on 23.12.2016 for setting aside the ex parte final order and recovery certificate, both dated 09.09.1998.
Prior to the filing of the MA by defendant No.4C Anuj Sethi above, defendant No.4A Mamta Sethi (above had moved the Hon'ble High Court of Punjab and Haryana in CWP No.20399 of 2018 which was decided on 27.08.2018 with the direction that the Tribunal "to decide the applications filed by the petitioner under Order 9 Rule 13 of CPC and also the application for condonation of delay in accordance with law and the decision be taken within a period of one month from receipt of certified copy of this order."
It may not be out of place to mention here that the CWP filed before the Hon'ble High Court was by defendant No.4A Mamta Sethi but the MA was filed by defendant No.4C Anuj Sethi.
The memo of parties and the order passed by the Hon'ble High Court is as under:-
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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During the course of arguments, counsel for the applicant Anuj Sethi (4C) argued that there is no personal decree against deceased defendant No.4 Subhash Sethi. It is oanly qua the property of defendant Nno.4 Subhash Sethi that was mortgaged. The personal liability is only qua defendants No.1, 2 and 3. He further stated that defendant No.2 Mukesh Sethi and deceased defendant No.4 Subhash Sethi are brother and defendant No.4 Subhash Sethi was living in UK for the last more than 40-50 years till he expired on 06.02.2006.
He further stated that when notice of salewas sent to the defendants, defendant No.4 Sunbhash Sethi had already expired and they received a copy of the notice. It was only after receiving the notice for sale, which was fixed for 04.05.2016, that only approached the Recovery Officer and got themselves impleaded as necessary parties.
He further contended that they had filed objections before the Recovery Officer.
He further contended that they were not served as the return address of the Tribunal mentioned in the envelope was Sector 9 instead of Sector 8, where the Tribunal was located. He further stated that even the Local Commissioner had stated that defendant No.4 Subhash Sethi could not be served.
He further stated that he had inspected the file of the Recovery Certificate on 25.05.2016 and filed his vakalatnama on the same date and filed an inspection of the OA on 09.08.2016 which he stated was inspected may be after one month. He further stated that he received information regarding the sale from some well wishers and not from the other defendants or the bank which information was received by them on 20.04.2016.
Counsel for the bank, now ISARC, argued that the facts of knowledge of the pending OA and RC, as argued by counsel for the applicant is against the record. He stated that the contention that they were never served is belied by the fact that in the MA filed para 7 of their averments disproves the fact that they were never served. He further stated that they have stated that the bank was communicating with them also shows that they were aware of the proceedings and also that they were communicating at the new address but the notices were sent to the old address.
Counsel for the bank further states that the MA was filed on 23.12.2016 along with the affidavit of 29.11.2016 and there is no explanation for the delay. He further argued that after filing the MA, their I.A. for condonation of delay was filed on 09.03.2018. he further stated that an application was filed by the mother 4(A) Mamta Sethi of defendants 4(C) Anuj Sethi on 22.04.2016 which is dated 15.04.2016 accompanied by vakalatnama dated 16.04.2016 which document have been filed by ISRAC in its reply to this I.A. as CH/8. He further states that the notices were sent to the last known address of deceased defendant No.4 Subhash Sethi and a fax has been sent by him to the bank dated 04.10.1999 giving the old address in which he states that he has authorized one Mr. Suresh K. Malhotra to negotiate with the bank and other concerned authorities which has been filed along with the reply as CH/3 which has been admitted by the applicant in his rejoinder shows that they had knowledge of the proceedings of the OA 302/97 and the consequent recovery proceedings.
Following is the fax sent by deceased defendant No.4 Subhash Sethi, father of 4(C) Anuj Sethi herein:-
S SETHI ESQ 121, Oakdale Drive 0161 436 6555 Heald Green
E-mail [email protected] Cheadle Cheshire SK8 3SN
4th October 1999
SENT BY FAX 91 172 701633 (Also copy by post in confirmation)
TO,
Small Industries Development Bank of India (SIDBI)
S.C.O. 145-146
Sector 17-C, Post Box No.92
Chanidgarh 160017
INDIA
Dear Sir,
SUB RE: Redemption of mortgage on property bearing Kewat No.612, Khata No.866, Khasara No.3872/1867, measuring 1 bigha 15 biswas, situated in village Girgaon, Delhi Road, Gurgaon, Opposite Air Force Officers Mess, Municipal No.236/3.
It is learnt that after failure of the first auction on the 28th June 99, in respect of the above mentioned property, the same is again proposed for public auction shortly.
The undersigned, the absolute owner and also the co-mortgagor of the above-mentioned immovable property intends to pay off all the liabilities of the term loan, and interest thereon, availed by Sethi Amusements Pvt. Ltd., a Company fraudulently floated by my brother, Mr. Mukesh Sethi. This, however, is subject to the condition that all the securities i.e. Title Deeds and Lease Deeds of the subject properties are released in my favour.
Kindly confirm that the Bank/concerned authorized shall release te entire securities to me at the earliest, on settlement of dues, to enable me to arrange the funds.
Mr. Suresh K Malhotra, S/o Late C.L. Malhotra R/o S-305 Greater Kailash-1, New Delhi 110 048, has been instructed to negotiate with you and other concerned authorities in the matter.
Thanking you
Yours faithfully
Subhash Sethi
He further stated that the deceased (D-4) had sent a letter to the bank dated 16.04.2001-CH/7, which is addressed to the DRT that he has appointed one Sh. Bhupinder Singh Advocate and all communication be sent to deceased defendant No.4 and copy to counsel which also shows the old address, the original of which is in their possession.
Following is the letter sent to the bank CH/7 on 16.04.2001:-
S Sethi
121 Oakdale Drive
Heald Green
Cheshire
SK8 3SN
UK
Tel 161 436 6555
Fax 161445 3045
Email: [email protected]
SENT BY FAX AND POST
16 April 2001
The Debts Recovery Tribunal
SCO 39-40
1st Floor
Sector 8-C
Madhya Marg
Chandigarh
INDIA
Dear Sir,
Your Reference MA No.69/2001/396
OA No.302/97
Re: SIDBI Vs. Sethi Amusement Pvt. Ltd. Mrs.and Mr. Anita and Mukesh Sethi and Mr.Subhash Sethi
I acknowledge receipt of summons for filing reply and appearance before the tribunal on 24/4/01 at 10:31 am, in the above matter.
I would like to inform you that since I live in the United Kingdom I will not be able to attend this hearing. This is also due to the fact that my advocate Mr. Bhupinder Singh has recently undergone a kidney transplant and so far has not returned to work full time. However, he can be contacted at I-8, Lajpat Nagar III, New Delhi 24, INDIA, Tel No.011 683 7639.
This whole matter was dealt and handed by my brother Mukesh Sethi and his wife Mrs. Anita Sethi, referred to as defendants Nos.2 & 3, who are also guarantors Sunil Toni the loans from SIDBI (Small Industries Development Bank of India). I also understand that in addition to the mortgage of my property in Gurgaon, Mr. and Mrs. Mukesh Sethi had also pledged some personal assets which are fully recorded in the Debts Recovery Tribunal hearing in Jaipur during July 1997.
As stated in the summons that all the affairs of defendant number 1, Sethi Amusements Ltd. were being managed solely by defendants 2 and 3,Mr. Mukesh Sethi and Mrs. Anita Sethi, also directors of defendant No.1. There is no doubt that these loans were obtained fraudulently and the hypothecated assets were transferred/moved by defendant No.2 and 3 without any prior consent of the applicant bank or permission to this Hon'ble Court.
In the meantime you are requested to insure that in addition to any decision made by the Tribunal, the DRT should enforce guarantees and realize shares and/or securities pledged to the applicant bank by defenat No.2 and 3 i.e. Mujkesh and Anita Sethi. This should be done with a view to reducing the borrowings and also the interest incurred at the earlier opportunity.
Furthermore, I would like to bring to your attention that during August 1999 my wife and myself were in New Delhi and in an effort to resolve this matter we visited the SIDBI offices on Parliament Street, New Delhi. But at that time the manager and the finance manager simply refused to discuss the matter with us.
It must be pointed out that your summons refer to annexures A-1-A4. We are aware of their contents as we did not receive them with the summons. Could you please arrange to have these sent to me.
In future you are requested to communicate directly with me. Any copies of our correspondence be sent to me and my advocate Mr. Bhupinder Singh whose address is given above.
Yours sincerely,
Mr. Subhash Sethi
CC. By fax No.1 (SIDBI Chndigarh, 2) P.K. Dutt & Co, Advocate SCO 99- 100 Sec 17-B, Chandigarh, 3, Bhupinder Singh, Advocate 1-8, Lajpat Nagar III, New Delhi 24.
Apart from the above counsel for the bank stated that the MA is barred by limitation as the same has to be filed within 30 days of 09.09.1998 but the same was filed on 23.12.2016 and this IA for condonation of delay has been filed on 09.03.2018, more than 17 years of the passing of the final order. No number of days the delay was for has not been mentioned in this I.A. He states that under the Schedule, Article 123 of the Limitation Act as well as under Order IX Rule 13 of the CPC show the provisions for setting aside the ex-parte decree.
Order 9 Rule 13 CPC reads as under:- xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
In rebuttal counsel for the applicant states that the service was not complete as the service report was filed on 15.07.1997 shown dispatch on 15.07.1997 itself as per hand written endorsement on the right side. He further stated that since Sh. D.P. Chadda had put in appearance on that date, they were not served as fresh notices were issued for a subsequent x\fs.
In rebuttal he further argued that the letter by Sh. S.K. Malhotra talks of a fax dated 06.10.2019 which had been sent to the bank in which he had been authorized and had appointed Mr. Mukesh Vats Advocate to approach on his behalf shows that the fax dated 04.10.2019 was not sent by deceased defendant No.4 Subhash Sethi.
Letters written by the said Sh. S.K. Malhotra is as under:- BEFORE TAX RECOVERY OFFICER, DEBT RECOVERY Tribunal, JAIPUR
In the matter of:
S.I.D.B.I., CHANDIGARH .... Decree Holder
Vs.
Sethi Amusements (Pvt.) Ltd. & Others .... Judgment Debtors
(Arising out of Application No.302/1997)
08.10.1999 Next date of hearing:
WHEREAS vide Fax dated 06.10.1999, sent by Shri Subhash Sethi son of Late Tara Chand Sethi, resident of 121, Oakdale Drive, Heald Green, Cheadle, Cheshire SK83SN, Manchester, U.K. addressed to Small Industries Development Bank of India S.C.O., 145-146, Sector 17-C, Chandigarh 160 017, India, I had been authorized to negotiate and deal with concerned authorities in the above matter.
Whereas, due to my ill health, I am unable to attend to this matter in respect of hearing fixed before the Hon'ble Tax Recovery Officer, D.R.T., on 08.10.1999.
And whereas, due to my other matters pending before various Judicial Authorities/Forum, I may not be in a position to attend before T.R.O., D.R.T., Jaipur as and when the matter is listed again, from time to time I, Suresh Kumar Malhotra, son of Late Chaman Lal Malhotra, resident of S 305 Greater Kailash I, New Delhi 110048, hereby authorities Shri Muksh Vats, Advocate, Chamber No.93, Patiala House Courts New Delhi to appear and attend this case, as and when it is necessary to represent interests of Shri Subhash Sethi, Judgment Debtor No.4 in the above Original Application/ Execution Application.
Dated: 07.10.1999
(Suresh Kumar Malhtora)
Son of Late C.L. Malhotra S 305 Greater Kailash I
New Delhi 110048.
Application before DRT Jaipur by Sh. Mukesh Vats Advocate is as under:-
BEFORE THE HON'BLE, DEBT RECOERY TRIBUNAL, JAIPUR
269/98
SIDBI, Chandigarh
Vs.
M/s Sethi Announcements (Pvt.) Ltd. & Others
Application/undertaking to file vakalatnama on behalf of Shri Subhash Sethi (JD No.4)
May please your Honour:
That the aforesaid execution is pending before this Hon'ble Tribunal
i) That the Hon'ble Defendant No.4 undertakes to file vakalatnama on the next date of hearing.
It is therefore, most humbly prayed that the application may kindly be allowed and four weeks may be granted for filing vakalatnama.
Through counsel
Mukesh
Vats Advocate
Jaipur 08.10.1999
He further states that this is sufficient ground to condone the delay and allow this IA.
The question to be decided is whether this I.A. for condonation of delay in filing the MA under Order IX Rule 13 has been filed giving sufficient reasons to condoning the delay which would affect the MA where the applicants had sought setting aside the ex-parte Order and the Recovery Certificate, both dated 09.09.1998. the file of the OA was also to be looked into to ensure that, the applicants herein have filed the MA for which condonation of delay has been sought was, in fact, an ex-parte order wherein husband of 4A Mamta Sethi and father of 4C Anuj Sethi had been unrepresented in the OA.
I have perused the record including the files of OA 302/1997 and the RC proceedings.
This IA was filed on 09.03.2018 alongwith the affidavits of Mamta Sethi 4(A) and Anuj Sethi 4(C). Perusal of the IA shows that it is undated and the affidavit sworn by the above Mmta Sethi 4(A) and Anuj Sethi 4(C) are dated 28.02.2018. The affidavit of 4(A_ Mamta Sethi shows that it was prepared in May, 2016 and was attested in Delhi on 28.02.2018 while she was stated to be in Delhi. The affidavit of 4(c), Anuj Setjhi is also attested at Delhi on 28.02.2018 whereas it shows that he is in Chandigarh. Both the affidavits have been identified by counsels who had appeared for 4(A) Mamta Sethi in the Hon'ble High Court at Chandigarh. This fact leaves serious doubts as to when the affidavits where got attested as the date in the affidavit, as typed shows May, 2016 at Delhi of 4(A) and where 4(C) Anuj Sethi was as the affidavit is sworn in Delhi whereas he has stated that he is in Chandigarh.
This fact, by itself, clearly shows that the LRs of deceased defendant No.4 Subhash Sethi in OA are trying to stall the recovery of the dues by the CH. This is also fortified by the fact that only, Mamta Sethi 4(A) approached the Hon'ble High Court of Punjab & Haryana in CWP No.20399 of 2018 on 13.08.2018 in which the order was passed as noted in Para 9 above whereas the IA was filed by both Mamta Sethi 4(A) and Anuj Sethi 4(C). The fact that the plea that the applications filed by the petitioner therein for condonation of delay and an application under Order 9 Rule 13 CPC be disposed off in accordance with law was a clear wrong statement/plea as the applicant in the CWP filed had not filed any IA before the Tribunal. The I.A. has filed only by 4(c) Anuj Sethi, who has, in the garb of the order passed by the Hon'ble High Court prevented the final disposal of the Recovery Certificate issued. The fact that the application for condonation of delay was filed on 09.03.2018 but yet does not find mention in the CWP filed before the Hon'ble High Court on 13.08.2018 clearly goes to show that the applicant, 4(c) Anuj Sethi herein, has not come forward with clean hands but has tried to take advantage of the CWP filed by Mamta Sethi 4(A), his mother.
From what has been discussed above, more particularly fax messages and the advocates application, it is clear that the then defendant No.4 Subhash Sethi (since deceased) was aware of the proceedings, who had appointed a person to represent him who put in appearance on 15.07.1997. the fact that the plea that date of 15.07.1997 was the date of issuance of notice is wrong as the stamp of the post office of dispatch is on the left side which is 14.06.1997 and the date of 15.07.1997, as argued by counsel is only an endorsement of date of filing which is 15.07.1997 when Defendant no.4 Subhash Sethi was represented in the case.
Further the fact that deceased defendant No.4 Subhash Sethi wrote letters to the bank in 1999 appointing Mr. S.K. Malhotra and again in 2001 wherein he has stated that all communications addressed to him be also sent to a counsel shows that he was aware of all the proceedings in the RC also. Further that pursuant the letter dated 04.10.1999, Sh. S.K. Malhotra had appointed Sh. Mukesh Vats, Advocate who had put in appearance in the DRT, Jaipur on 08.10.1999 as per Para 25 above, which was now stated as to not having been sent by Defendant no.4 Subhash Sethi as per counsel in this IA, clearly shows that deceased Defendant no.4 Subhash Sethi was not unrepresented in the RC also and now the denial of these facts is also to try to show that the original Defendant no.4 Subhash Sethi was unrepresented, is rejected.
In any case if Defendant no.4 Subhash Sethi in O.A. presumed he was proceeded ex-parte, he could have moved an application to set aside the ex-parte order and decree, which he choose not to do. Rather he accepted the proceedings by being represented in the OA. Further, after issuance of the Recovery Certificate he again issued a letter and was represented on the basis of letter written by him and an Advocate thereafter as mentioned in Para 24 & 25 above.
further the fact that the applicants have admitted that the officials of respondents were in regular touch with the applicant through e-mail; in the MA, goes to show that the applicants were aware of the proceedings much prior to their filing the MA and as much the delay in filing the MA through this IA cannot be condoned.
35 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
I have gone through the written arguments filed by counsel and they are what he had argued at length. Nothing new has been brought out in the written arguments filed by the counsel. The judgments relied upon by the counsel are detailed as under:-
(a) "Dev Bhushan Gupta VS. Sat Narayan Bansal and ors" being CR NO.2041 of 2012 (O+M) held that there was nothing on record to show that the defendants had been served.
(b) "Aman Kaur vs. Badal Singh" being CR No.4890 of 2009 held that the ex-parte decree that had been set aside by the Trial Court was upheld.
(c) "Vidya Sagar VS Mam Chand & ors" being CR. No.2864 of 2006 held that the order setting aside the ex-parte decree by the Trial Court was in accordance with law.
(d) "Jasbir Singh & Ors Versus Mewa Singh & Ors" being RSA No.3205 of 2010 (O+M) held that the judgment and decrees passed b the Courts below were not sustainable in the eye of law and the second appeal was allowed.
All the above four judgments filed by counsel are of no help to the applicant and are not applicable to this I.A. as there are letters written by the deceased defendant no.4 Sh. Subhash Sethi to the then bank concerned "Small Industrial Development Bank of India" (SIDBI) with a copy to counsel for the bank stating that he was aware that the first auction dated 28.06.1999 had failed and he intended to pay off all the liabilities which finds mention in letter dated 04.10.1999. In the letter he also stated that on Sh. Suresh K. Malhotra had been instructed by him to negotiate with the bank and other concerned authorities pursuant to which Sh. Mukesh Vats advocate appeared in the Recovery proceedings. In the other letter which is also addressed to counsel for the bank, he has stated that he has also received the summons for appearing before the Tribunal on 24.04.2001 at 10.30 am which he would not be able to attend as he is in the United Kingdom and all communication should be directly addressed to him and copies be sent to his counsel.
From the above, it is also clear that the deceased defendant no.4 Sh. Subhash Sethi was in the loop of the proceedings pending before this Tribunal, if for the sake of arguments not by 15.07.1997, then by 04.10.1999, when he sent the first fax. The two letters sent by him have been reproduced in paras-19 and 20 above. Further, the letter dated 04.10.1999 was acted upon, as detailed in para-25 above, by the said Sh. Suresh Malhotra and Sh. Mukesh Vats Advocate. This, in addition to the fact that in the MA filed, they have clearly admitted that the bank was communicating with them as noted in para-17 above.
For the reasons stated above, it is clear that deceased Defendant no.4 Subhash Sethi was being represented in the OA as well as in the RC and the plea by the LRs of the final order being passed ex-parte is an abuse of the process of the Court.
In view of the above, this IA is dismissed."(emphasis laid)
I have heard the counsel for the appellants(LRs of the deceased defendant Mr. Subhash Sethi) and the counsel for assignee of SIDBI. Learned counsel for the appellants reiterated the submissions made in their memorandum of appeal to the effect that late Mr. Subhash Sethi was never served with any summons in the O.A. and his brother had in collusion with bank officials put up an advocate for one date only to represent Subhash Sethi and thereafter that advocate, who in fact had been debarred by the State Bar Council from practicing because of professional misconduct committed bt him, and thereby by playing fraud on DRT succeeded in getting a recovery certificate issued even against late Mr. Subhash Sethi taking advantage of the fact that he was settled in U.K. for decades. Counsel also submitted that the various fax messages purporting to have been sent to the SIDBI by late Mr. Subhash Sethi during his lifetime concerning the loan transaction in question were all bogus and fabricated piece of materials placed on record by the opposite side and wrongly and mechanically relied upon by the DRT also in the impugned order.
On the other hand learned counsel for assignee of SIDBI strongly urged that all this is a game plan conceived intentionally by the appellants taking advantage of the death of late Mr.Subhash Sethi to avoid recovery of public money as has been rightly observed by the DRT also.
The learned DRT has elaborately discussed the aspects highlighted before it also on behalf of assignee. I am in general agreement with its reasoning and so need not go into in detail the rival submissions. For the view that as an appellate forum I need not enter into an elaborate discussion of facts and law once there is a general agreement with the conclusions of the lower forum(DRT in the present case) I find support from the judgment of the Hon'ble Supreme Court reported in AIR 1967 SC 1124.
There is no reason given by the appellants as to why title deeds of mortgaged property were given to SIDBI and why the deceased Subhash Sethi never asked the same to be returned to him by his father with whom the appellants are now claiming to have been kept and from whom defendant Mukesh Sethi allegedly took the same and handed over to the SIDBI as security. Even the appellants have not demanded the title deeds after the death of late Subhash Sethi even after coming to know that the same had been wrongfully used by Mukesh Sethi, brother of the deceased Subhash Sethi. Learned counsel for respondent rightly submitted that the appellants have also not given any reason as to why the bank officials would fabricate fax messages showing that deceased Subhash Sethi was very much aware of the O.A. and in fact even issuance of recovery certificate also against him and his property being auctioned. Counsel also rightly contended that the story of collusion between SIDBI officials and Mukesh Sethi gets falsified and belied from the fact that in the application under Order IX Rule 13 CPC (para no. 15) that the appellants themselves have admitted that late Mr. Subhash Sethi was in regular touch with officials of SIDBI when he came to know that his property was being sought to be auctioned otherwise there was no occasion for him to be in touch with officials of SIDBI. All this also shows that even appellant Mamta Sethi, widow of the deceased Subhash Sethi, was also aware of the ongoing litigation started by SIDBI to recover its outstanding dues from the borrower Company and guarantors/mortgagor including the deceased Subhash Sethi. So, just because the DRT had entertained one advocate to represent Subhash Sethi without taking on record his vakalatnama will not in the facts of the present case help the appellants though this tribunal takes a strong exception to entertainment of the advocate without vakalatnama or even a memo of appearance for the date when Mr. Chadha, advocate appeared. This practice must be stopped. If an advocate appears on one date without vakalatnama and he does not file his vakalatnama on or before the next date his presence cannot be recorded. Appellants have falsely come out with a plea that neither the deceased Subhash Sethi nor his wife and children were aware of the O.A. proceedings. Appellants have not explained as to in what connection the deceased Subhash Sethi was in touch with the SIDBI officials as stated by them in their application no. 88/2017 if that was not in connection with the O.A. proceedings and recovery certificate having been issued in the matter. Ignorance of the O.A. proceedings by the appellants is a patently false plea raised by the appellants in order to ensure that this litigation never comes to an end. Prima facie of the view that the appellants have committed offence of perjury for which they deserve to be prosecuted.
I am also of the view that even otherwise also there was no merit in the delay condonation application. As per the appellants' own case they came to know about the O.A. and its disposal ex parte in April, 2016 when the recovery office was taking steps to execute the recovery certificate but despite that the application under Order IX Rule 13 CPC was moved in the last week of December, 2016. That delay has also remained unexplained. The appellants have also failed to disclose as to which supernatural they possess by which they came to know that their property was being auctioned and where that supernatural power had vanished when O.A. proceedings were going on ex parte. So, for all these reasons also there is no scope for interference in the impugned order of the tribunal below rejecting I.A. No. 407/2018 seeking condonation of delay in moving I.A. no. 88/2017 under Order IX Rule 13 CPC. This appeal is consequently dismissed.
However, it has remained a matter of anxiety as to why the recovery certificate for recovery of public money, which I was informed during the course of hearing by respondent's senior counsel. By now must have become much over fifty crores, could not be executed despite the fact that the recovery officers have very stringent powers under Section 25(a - d) of the Act to 1993, which include the power to arrest the CDs and to take over immediate possession of their properties, in order to recover public money immediately upon receipt of recovery certificates from the DRTs to which the recovery officers attached. The legislature has conferred supervisory powers upon Presiding Officers over recovery officers. That power has a purpose behind it and that purpose is to have a continuous check over recovery officers by Presiding Officers to find out whether recovery officers are seriously executing recovery certificates sent to them for execution or not. The learned Presiding Officer of DRT concerned in the present case will thus, in his capacity as the supervisory authority of recovery officers provided to him by the Central Government, will obtain a report from the recovery officer dealing with the present recovery case to find out as to why the recovery certificate issued way back in the year 1998 has remained unexecuted and after examining the report of the recovery officer and recovery file also a report shall be submitted to the Chairperson of DRAT who exercises supervisory powers over all the DRTs under its jurisdiction. All this exercise would be completed within a month. Copy of this order shall be separately sent to the concerned recovery officer also besides the learned Presiding Officer.
Copy of this order shall be circulated amongst all DRTs under the jurisdiction of DRAT, Delhi so that their Presiding Officers and Registrars/recovery officers do not allow appearance of lawyers without vakalatnamas except on one date only and that too if they file memo of appearance undertaking to file vakalatnama on or before the next date. Even on the date when particular advocate appears with a memo of appearance the Presiding Officers/Registrars should normally allow them to take effective part in the proceedings which can have some adverse consequences in the matter. These directions will apply to the DRAT also and the Registrar will ensure that there is no laxity in this regard whenever matters are being taken up by him. It should also be ensured by DRAT Registry as also of DRTs that names of only those advocates appear in the cause list whose vakalatnamas are there on record.
Copy of this order shall be particularly placed before the learned Presiding Officers of all DRTs the observatio0ns regarding their duties to keep an eye on the functioning of their recovery officers gets noticed by them for future.
That is not the end. The Registry is directed to prepare a separate file now in which copy of this order shall be kept since this Tribunal is directing, suo moto, issuance of a notice to the three appellants to show cause as to why proceedings as contemplated under Section 340 Cr.P.C. be not ordered against them for the reasons already highlighted by me in this order. The assignee of SIDBI shall effect service through emails returnable on 16.11.2020 when the separately prepared file having a copy of this order, with the title 'SUO MOTO ACTION UNDER SECTION 340 Cr.P.C. shall be put up before the tribunal. The main appeal file shall simply be tagged with it.