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Judgment
The Tourism Finance Corporation of India Limited, the predecessor interest of the respondent no.1 filed O.A. bearing No. 715/2017 titled as Tourism Finance Corporation of India Limited v. M/s Majestic Hotels Limited & others, which was disposed of vide order dated 26.10.2018 on the basis of joint application bearing I.A. No. 1602/2018, which was also signed by the appellants.
The DRT-I, Delhi on the basis of joint application bearing I.A. No. 1602/2018 has allowed the O.A. by observing that I.A. bearing No. 1602/2018 shall form part and parcel of the joint decree passed by the DRT-I, Delhi and, accordingly, Recovery Certificate was ordered to be issued.
The appellants filed M.A. bearing TMA No. 01/2024 (161/2021) for setting aside "ex parte order" dated 26.10.2018, which was dismissed vide impugned order dated 27.08.2024 and in the said order the number of application in Para No.5 is wrongly mentioned as I.A. No.2499/2021. The DRT after hearing the rival contention of the parties observed that the defendants have approached the bank for settlement and the order dated 26.10.2018 cannot be set aside under the provision of Order IX Rule 13 CPC and, accordingly, the said application was dismissed. The relevant portion of the order dated 26.10.2018 is reproduced as under:
12.In light of above discussion this Tribunal has considered view that impugned order dated 26.10.2018 was not passed ex-parte under the provision of Order 9 rule 13 CPC read with section 22, 19(25) RDB Act, 1993 are not applicable in this matter. Impugned order has passed on the basis of joint application moved on behalf of the both the parties and matter was disposed of with the consent of both the parties. When defendants were not adhered with terms and conditions of the settlement, recovery certificate no. 10/2019 was issued. In this matter the consent decree was passed by the then Hon'ble Presiding Officer, disposing of IA No. 1602/2018. Applicant has moved this Misc. Application under provision of order 9 rule 13 CPC read with section 22, 19(25) RDB, Act, 1993, which are applicable in the matter which has been disposed of on the basis of joint application of both the parties.
13.In light of submissions made on behalf of Ld. counsel for both the parties and averments in the application this Tribunal has considered view that where parties have approach to the bank for settlement. It means defendants were properly served and parties have moved the joint application for the settlement. Impugned order dated 26.10.2018 cannot be set under provision of order 9 rule 13 CPC read with section 22, 19(25) RDB, Act, 1993. I do not find any merit in the application filed on behalf of applicant/defendants. Hence, Misc. application and IA no. 2499/2021 along with IA No. 2497/2021 are liable to dismiss and dismissed accordingly.
Sh. Tarun Kashyap, Counsel for the appellants stated that the notice of the O.A. bearing No. 715/2017 was not issued to the appellants who were defendants no.2, 3, 4 & 7 before the DRT-I, Delhi and no affidavit of service has ever been filed by the respondent no.1 in the O.A. It is further argued that the notice of I.A. bearing No.322/2018 for substitution of respondent no.1 i.e. Tourism Finance Corporation of India Limited and joint application bearing I.A. No. 1602/2018 has never been issued.
The perusal of record reflects that the I.A. bearing No. 1602/2018 were signed by the appellants and supported by their respective affidavits. Accordingly, that the plea that notice of the said application was not issued to the appellants is totally misconceived and ill-founded. Even otherwise, I.A. bearing no. 322/2018 was also disposed of vide order dated 26.10.2018, which was filed only for the substitution of respondent no.1 with the original OA applicant i.e. Tourism Finance Corporation of India Limited.
It appears that vide application bearing I.A. bearing No. 1602/2018 the appellants on the basis of memorandum of understanding dated 29.12.2017 and other documents prayed for passing a consent and compromised decree and during the course of argument Sh. Tarun Kashyap, Counsel for the appellant stated that the said decree was only partly complied with.
The order dated 26.10.2018 was passed on the basis of joint application which was well within the knowledge of the appellants. The appellants could not stick to the decree dated 26.10.2018, which was passed in pursuance of the I.A. bearing No. 1602/2018. The DRT-III, Delhi in the impugned order dated 27.08.2024 has clearly considered the rival contention of the parties and rightly came to the opinion that the order dated 26.10.2018 was not an ex parte order. The arguments advanced by the Counsel for the appellants are totally misconceived and ill-founded and without any merit. The present appeal is gross abuse of process of law hence dismissed with the cost of Rs.5,000/- to be paid to the DRAT Bar Association in the A/c No.15530110132692 (IFSC:UCBA0001553) maintained with UCO Bank, Delhi High Court Branch, New Delhi, within one week.