Radha Rani Gupta vs Oriental Bank Of Commerce And Ors.

Ranjit Singh, J

The O.A. filed by the Bank was allowed by the Tribunal on 8.11.2005 on the basis of a compromise between the borrower and the Bank. The application filed for passing a decree in terms of the compromise, was supported by affidavits of various defendants in the O.A. As per the compromise arrived at, the Bank had agreed to restructure/reschedule the WCTL, POL and FOBP/FUDBP facilities amounting to Rs. 486.03 crores as per the terms and conditions agreed upon between the parties. Parties agreed for issuance of recovery certificate to the tune of Rs. 5,16,21,442/- along with interest @16% p.a. with monthly rests against defendants in the OA, including the present appellant, who had been impleaded as defendant No. 6 in the O.A. After expiry of five years, the appellant had filed an application (M.A.) under Section 22(2) and Section 31 of the RDDBFI Act read with Order 9 Rule 13, CPC for setting aside/recall of the order dated 19.10.2004 whereby ex parte proceedings had been initiated against the appellant. The Tribunal below has dismissed this MA and aggrieved against the same, the appellant has filed the present appeal. In this application, the appellant has alleged that she was taken to have been served on the basis of an affidavit of service filed by the authorized officer of the Bank, whereas, no such summons were ever validly served upon her. The appellant, accordingly, would submit that she was wrongly proceeded as ex parte on 19.10.2004, which was first date of appearance, as no service was effected on her as enjoined upon by Order 5, CPC.

The appellant would even plead that she neither signed nor authorized any person to sign on the application for compromise on the basis of which the final decree was passed on 8.11.2005. Appellant would allege that this document was fabricated.

The Bank filed reply to this M.A. contesting the allegation made by the appellant. As per the Bank, the appellant had duly signed on the compromise application which was supported by affidavit. The appellant herself was mortgagor/guarantor and on the basis of this application consent decree was passed. As per the Bank, the M.A. was filed on false ground to obstruct the recovery.

Reiterating his submissions advanced before the Tribunal below, the Counsel would submit that the appellant had not received any summons and no service had been effected on her. The Counsel would contest the affidavit filed by the authorized officer, by urging that she had not been served by 19.10.2004 which was the first date of appearance and prayer made in the application deserves to be allowed on this ground. The Counsel would further contend that the appellant had never signed any application of compromise nor had authorized any person to sign which led to consent decree. The submission is that if any signatures are found recorded, those are fabricated ones.

The Bank, of course, would assert that the appellant had been duly served and only thereafter consent decree was passed on the basis of an application which was duly supported by sworn affidavits.

The appellant had placed on record the opinion of some private handwriting expert who has given a finding that the signatures on mark 'Q1' to 'Q14' had not been written by a person who had endorsed signatures marked as 'S-1' to 'S-7'. In my view, this report by private handwriting expert does not in any manner clarify whether the questioned signatures appearing on the original documents were sent for comparison. Even there is no authenticity of admitted signatures which were reportedly sent for the purposes of comparison. Therefore, reliance cannot be placed on such report which had been obtained by the appellant from a private handwriting expert.

While rejecting the MA, the Tribunal has taken note of the fact that the O.A. was filed 5.8.2004 and notices were issued on 16.8.2004. It is recorded that Local Commissioner was appointed by the Court with the consent of the two defendants, i.e. defendant Nos. 1 and 2. Reference is made to the service report along with affidavit filed by the Bank official deposing that he had served the notice on appellant on 19.9.2004. The summons through which the appellant had been served has now been placed on record and it contains signatures of the appellant. Though the Counsel for the appellant would contend that these signatures are not tallying with the signatures of the appellant on the appeal she has filed, but apparently there is not much difference noticed even when seen with the naked eye. In any case, there is no reason to doubt the affidavit filed by the Senior Manager of the Bank who has stated that summons were received by the appellant on 19.9.2004. The contents of this affidavit cannot be doubted when examined in the light that the same officer had deposed that defendant Nos. 3, 4 and 7 could not be served due to their non-availability even after two attempts. If he could so depose in respect of other defendants, he cannot be attributed with any motive to depose that he had served the appellant. It can, therefore, be taken that the Manager had correctly and fairly filed this affidavit showing service on the appellant.

The fact that the appellant was served would find further support from the subsequent event. A Counsel had appeared on behalf of the appellant on 5.11.2004 and this is reflected in the order. On 8.11.2005 a consent decree was passed when the appellant was represented through her Special Power of Attorney. There is, thus, enough evidence to show that the appellant had been served properly and she is now trying to make out a case of non-service just to come out of the rigours of the order for recovery, which was passed on the basis of a consent. If the appellant has been taken to have been served, then appeal against the order in the O.A. may not be maintainable as the decree passed in the O.A. was on the basis of consent. I have not been able to find any merit in the pleas raised by the appellant. The Tribunal below has considered the pleas of the appellant well and in proper manner and has rightly declined to recall the order impugned therein. There is no merit in the appeal and the same is accordingly dismissed.