Mr. P. S. Palani vs Indian Bank & Ors.

This Appeal is filed to set aside the order dated 04.11.2010 in MA 116/2010 in OA 57/1998 on the file of DRT-II, Chennai.

The case of the Appellant is that Appellant is Defendant No.4 in OA 57/1998 filed by first Respondent, Indian Bank against the Appellant and others, for recovery of a sum of Rs.2,19,00,703/-. The Bank claims that Appellant executed guarantee agreement and mortgaged the property to secure the loan availed by M/s. Malaysia Timber Suppliers. Appellant was not served with any notice in Original Application and the final order was passed on 11.12.2000. Only when the Recovery Officer came for inspection of the mortgaged property on 24.08.2005, Appellant came to know about the mortgage. Appellant filed an Application in IA 676/2005 to condone delay in filing the Application to set aside the ex parte order. Said IA was dismissed for default on 02.04.2009. Thereafter, Appellant filed MA 116/2010 for condoning the delay of 372 days in restoring the IA 676/2005. Learned Presiding Officer, without considering the merits of the case, dismissed MA 116/2010. Thus, this Appeal.

Learned Counsel for Appellant submitted that Learned Presiding Officer could have condoned the delay, in the interest of justice and fair play. When the Appellant is disputing the guarantee document and mortgage executed, fastening the liability on the Appellant, without serving notice in the OA, is illegal. The delay condonation Application was dismissed due to negligence of Counsel for Appellant, and for his negligence, Appellant cannot be penalized. The cause for absence of the Appellant was his illness. On these grounds, Learned Counsel for Appellant press for setting aside the order passed in MA 116/2010.

Learned Counsel for 1^st Respondent Bank strongly opposed the Appeal on the ground that Appellant was served with notice in the Original Application and he was represented by his Counsel. Since Written Statement was not filed, Appellant and other Defendants were set ex parte. After considering evidence produced, Learned Presiding Officer allowed the Original Application in the year 2000. The Application to condone delay in filing the Application to set aside ex parte order was filed only in the year 2005. After allowing it to be dismissed for non-prosecution, MA 116/2010 was filed only in the year 2010. It shows that Appellant is interested in protracting the case than settling the loan account, claiming that the Appellant had not stood as guarantor to the borrower and not executed the mortgage in favour of the Bank. It is not correct. The guarantee executed and mortgage created by Appellant are supported by the documents. Learned Presiding Officer rightly dismissed the MA 116/2010, and thus, he seeks to dismiss this Appeal.

Considered the rival submissions and perused records.

It is seen from the records produced that the Appellant and other Respondents had appeared in OA No.57/1998 by engaging one Advocate Mr. N. Natarajan on 01.04.1999. Since Written Statement was not filed, the Defendants were set ex parte. Therefore, it is not now open to the Appellant to claim that Appellant was not aware of the OA proceedings. OA 57/1998 was disposed of on 11.12.2000, but the Application in IA 676/2005 to condone delay in filing the Application to set aside ex parte decree was filed in 2005. It is not known whether it was filed earlier but numbered in 2005. Without diligently following the Application to condone delay in filing the Application to set aside the ex parte order, that Application was allowed to be dismissed for default. The ground now pleaded before the Tribunal and here is ill- health of the Appellant. Admittedly, no medical evidence is produced to show the ill-health of the Appellant before the Tribunal and here in this Tribunal. Therefore, it is clear that only a bald allegation is made to set aside the ex parte order passed in OA, without making any genuine attempt to justify the reason for delay in filing the Application to set aside the ex parte order. The restoration Application was also not filed in time. MA 116/2010 for restoring the dismissed IA 676/2005 was filed with a delay of 372 days. There is no justification for the Appellant to file Petition for condoning the delay in filing the Application to set aside the ex parte order and condoning the delay in filing the restoration of IA 676/2005 with delay. The conduct of the Appellant lacks genuineness and bonafinds. There is no ground made out to allow MA 116/2010, and this Appeal, especially, 25 years after the disposal of OA 57/1998.

In this view of the matter, this Appeal in M.A: 647/2010 is dismissed with the costs of the respondents, by confirming the order of Learned Presiding Officer, DRT-II, Chennai passed in MA 116/2010.

All pending IAs, if any, stand closed.