Rita Jolly vs State Bank Of Patiala And Ors.

P.K. Bhasin, J

I.A. No. 406 of 2016

The appellant seeks condonation of 73 days' delay in filing of this appeal against the order dated 30.3.2016 passed by the DRT, whereby, by an ex-parte order, the residential property of the appellant came to be attached with a further direction to the revenue authorities to enter in the revenue record the Bank's charge over the property. Appellant claims that the impugned order was passed ex-parte and it came to her knowledge only on 20.6.2016 when she entered appearance upon receipt of notice only. On that date, the Bank officer undertook to supply the case papers which came to be supplied on 13.7.2016 and then appellant applied for certified copy on 16.7.2016 which was delivered on 25.7.2016.

The respondent Bank is opposing this application on the ground that the appellant through her husband was served with the notice on 2.5.2016 and then another notice was despatched to her by Registered Post also on 17.5.2016 and, therefore, her claim that she came to know about the impugned order only on 20.6.2016 is not tenable.

It is not in dispute that the appellant was not served personally even though her property was sought to be attached before judgment by way of an ex-parte relief which was claimed by the Bank from the DRT. By not filing an appeal within the period of limitation the appellant could not have gained anything but, instead, she would have faced adverse consequence only and in the facts and circumstances it cannot be said that delay in filing the appeal the order of attachment of the property was intentional.

Therefore, this application is allowed and the delay in filing of the appeal is condoned.

Misc. Appeal No. 266 of 2016

With the consent of the Counsel for the parties appeal has also been taken up for final hearing.

The appellant's grievance is that by way of an ex-parte order the DRT-I, Chandigarh not only has passed an order of attachment before judgment in respect of her residential property, but has also directed the revenue authorities to make a note in the Revenue records about the attachment and to create a charge over the property in favour of the Bank. At the time of passing these ex-parte orders, the learned DRT finally disposed of the Bank's application filed for that relief, without even issuing notice of that application to the appellant.

The learned Counsel for the appellant has submitted that this is a fit case which needs to be remanded to the DRT with direction for fresh disposal of the Bank's application being I.A. No. 219/2016 after giving an opportunity to the appellant to file reply thereto and address arguments.

The learned Counsel for the Bank, while not seriously disputing that the DRT ought to have given an opportunity to the appellant before finally disposing of the I.A. after granting ex-parte relief to the Bank, submits that there is nothing wrong otherwise on the merit of the impugned order of the DRT and this appeal deserves to be dismissed.

After giving my due consideration to the entire aspect of the matter, I am of view that the DRT is not justified in disposing of the application filed by the Bank for some ex-parte relief finally at the ex-parte stage itself without even issuing notice of that application to the appellant/defendant. There is no doubt that the DRT was, of course, competent to pass restraint order against the appellant ex-parte, but that order becomes liable to be modified/vacated/confirmed after affected party enters appearance and prays either for vacation of the injunction or for modification. In this way, there has certainly been a violation of principles of natural justice which only the DRTs are expected to ensure as provided under Section 22 of the RDDBFI Act.

The learned Counsel for the appellant has submitted that it is not that the appellant is interested to dispose of the property in order to defeat the rights of the Bank to recover its alleged dues in the event of its succeeding before the DRT and, therefore, he is ready to give an undertaking that till fresh disposal of the Bank's application for attachment etc., the appellant will not in any way create any kind of third party interest in the property in question, nor shall its possession will be handed over to any one in any capacity.

In view of the said undertaking being given on behalf of the appellant, the matter is remanded back to the learned DRT for disposal of the Bank's I.A. No. 219/2016 in accordance with law after giving due opportunity to both sides for addressing arguments and also after taking on record the reply of the appellant. After hearing the parties, the DRT would be at liberty to pass any order in accordance with law. However, till that decision is taken, the operation of the impugned direction of attachment before judgment and direction to Revenue authorities shall remain in abeyance.

It is, however, clarified that this Tribunal has not gone into the merits of the appellant's contention that her property is not liable to be attached at the instance of the Bank or no charge in respect of the property can be created as has been ordered by the DRT in the impugned order. All these aspects would be open for decision once the application is taken up for fresh hearing.

Considering the fact that the Bank is seeking to recovery over Rs. 40 crores from the appellant, borrower etc., the I.A. shall be disposed of within one month from the date of communication of this order. Counsel for the parties have assured that they will cooperate with the DRT in complying with this direction. Parties shall now appear before DRT on 9.2.2017 which is the date already fixed there in the O.A. On that date, the appellant shall file reply to the Bank's application and no further time shall be granted for that purpose. If by now even the written statement has not been filed by the appellant, the same shall also be filed on 9.2.2017 and for that no further time shall be granted. If same is not filed, DRT shall pass appropriate orders for failure to file the same.

Copy of this order be given Dasti to the Counsel for the parties and be also sent to the DRT concerned forthwith.