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Judgment
P.D. Dinakaran, J.—Alleging that the 2nd respondent bank seeks to execute the exparte decree dated 21.11.2000 made in
O.A.No.494/1998, even during pendency of interim application in I.A.No.34/2001 in O.A.No.494/1998 on the file of the first respondent filed to
set aside the said exparte decree dated 21.11.2000 from December 2001, the petitioner seeks for the issuance of a Writ of Mandamus to direct
the first respondent herein to dispose of on merits within a reasonable time to be fixed by this court I.A.No.34 of 2001 in O.A.No.494 of 1998
pending before the first respondent so far as the petitioner is concerned.
2.1: Mr. N.R. Chandran, learned senior counsel appearing for the petitioner invited my attention to the following entries mentioned in the diary for
adjourning the above I.A. :
December 2000 I.A.NO.34/2001 filed. Notice ordered returnable on 30.03.2001 (3 months).
10.01.2001 Notice served on the counsel for the 2nd respondent
30.3.2001 Presiding Officer not sitting- adjourned to 6.09.2001.(156days)
6.09.2001 Presiding Officer not sitting- adjourned to 26.11.2001(80days)
23.11.2001 Second respondent bank filed a counter in IA.No.34 of 2001.
26.11.2001 Presiding Officer not sitting- adjourned to 20.2.2002(3 months)
20.02.2002 Presiding Officer on leave -re-posted to 3.5.2002 (2 1/2 months).
19/ Affidavit and petition filed for 20.03.2002 advancing the hearing. Numbered as I.A No.368 of 2002 but after numbering returned back
saying ""the same maybe presented in the form of a Memo before Hon''ble P.O"" (against an order in IA an appeal can be filed. No appeal can be
filed against order in Memo)
03.04.2002 Memo filed for advancing the hearing.
10.04.2002 Memo (for advance hearing) rejected. Hearing not advanced and matter re- posted to 3.05.2002.
3.05.2002 The matter was posted to 20.05.2002(wrongly stating that the counter of the second respondent-bank is to be filed, whereas
counter filed by bank on 23/11/01)
12.20.05.2002 Adjourned for hearing on 17.07.2002 (2 months)
13.28.06.2002` Second memo filed for advancing the hearing.
14.10.07.2002 Memo taken up for advancing the hearing and rejected. Hearing not advanced. Matter re-posted to 17.07.2002.
15.17.07.2002 Matter adjourned and re-posted to 24.07.2002.
16.24.07.2002 Arguments on behalf of the petitioner advanced. Counsel for second respondent- bank absent. Hence adjourned for second
respondent''s arguments on 21.08.2002.
17.21.08.2002 Presiding Officer not sitting-adjourned to 9.10.2002 (2 months).
2.2: The further contention of Mr. N.R. Chandran, learned senior counsel appearing for the petitioner is that Sec.19(4) of the Recovery of Debts
Due to Banks & Financial Institutions Act,1993 (hereinafter referred to as the Act) contemplates that on receipt of the application under sub
section (1) or sub-section(2) of Sec.19, the Tribunal shall issue summons requiring the defendant to show cause within thirty days of the service of
summons as to why the relief prayed for should not be granted. Therefore it is contended by the learned senior counsel that since the petitioner,
viz., the second defendant in the said O.A.No.494/1998, was not served with summons, the first respondent tribunal ought not to have passed an
exparte against the petitioner herein viz., the 2nd defendant thereby based on paper publication. Hence it is contended that the exparte decree
dated 21.11.2000 itself is arbitrary and violative of principles of natural justice.
2.3: Mr. N.R. Chandran, learned senior counsel further contends that the exparte decree dated 21.11.2000 is also contrary to Sec.19(25) of the
Act, which reads thus:
19(25):The Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent
abuse of its process or to secure the ends of justice.
Sec.22(2) of the Act reads as follows:
22.2:The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the4 examination of witnesses or documents;
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it exparte;
(g) setting aside any order of dismissal of any application for default or any order passed by it exparte;
(h) any other matter which may be prescribed;
Once the provisions and the powers vested in Civil Court under the Code of Civil Procedure, 1908 while trying the suit is made applicable to the
Tribunal for the purpose of discharging their functions under this Act, it cannot be said that the procedure of paper publication is not permissible
under the Act.
However, taking into consideration of the fact that I.A.No.34 of 2001 was kept pending before the first respondent from December, 2000 and
the matter is finally adjourned to 9.10.2002, I am obliged to direct the first respondent to dispose of the above I.A.34/2001 on the next date of
hearing on 9.10.2002 without adjourning the matter any further and to stay the execution of the exparte decree dated 21.11.2000 made in
O.A.No.494/98 on the file of the first respondent till then on condition that the petitioner deposits Rs.1,15,00,000/- (Rupees One Crore and
Fifteen Thousand only)without prejudice to the rights of petitioner as well as 2nd respondent within two weeks from the date of receipt of copy of
this order, failing which the respondent bank shall proceed with the proposed execution.
The Writ petition is ordered accordingly. No costs. Consequently WPMP.No.51851/2002 is closed.