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Judgment
V. Dhanapalan, J.—This Civil Revision Petition is filed against the order, dated 21.06.2007, made in I.N. No. 375 of 2005 on the file of
Debt Recover Appellate Tribunal, Chennai, as against the order, dated 15.02.2002, made in I.A. No. 994 of 2000 in T.A. No. 589 of 2001 on
the file of Debt Recovery Tribunal-II, Chennai. The background of this revision is, that, originally, a suit in O.S. No. 511 of 1995 on the file of
Subordinate Court, Coimbatore, was filed by the revision petitioner for a direction to the respondents to pay a sum of Rs. 11,44,369.33 jointly
and severally with further interest thereon at 20.75% per annum with quarterly rests for the cash credit facility up to Rs. 7,50,000/-, and the said
suit was subsequently transferred to the Debt Recovery Tribunal II, Chennai, and renumbered as T.A. No. 589 of 2001. Though the respondents
entered appearance on 13.02.1999, T.A. No. 589 of 2001 was ordered ex parte on 11.02.2000. Thereafter, I.A. No. 994 of 2000 was filed by
the respondents to set aside die ex parte order, dated 11.02.2000, and to restore the matter on the file of the Tribunal.
The case of the respondents before the Tribunal was that the deceased fourth respondent, by name, Kausalya Mani was the owner of the
immovable property which had been offered as collateral security for obtaining the loan from the petitioner bank; the fourth respondent, who was
the mother of second respondent, was interacting with the advocate at Coimbatore in the proceedings and the matter was transferred to Debt
Recovery Tribunal-II, Chennai; the Tribunal, by its order, dated 24.06.1999, directed the petitioner bank to furnish copies of plaint and documents
to enable the respondents'' erstwhile counsel to file reply statement finally by 13.08.1999, on which day, counsel for the respondents filed a memo
stating that he had not received copies of the plaint and other documents; despite the memo, since the reply statement was not filed even on that
day, all the respondents were called absent and set ex parte and the Tribunal passed orders on 11.02.2000; the information was not passed on to
the respondents, as the fourth respondent, who was dealing with the affairs, expired on 22.05.1998; there was a communication gap between the
previous counsel in Coimbatore and the counsel engaged at Chennai to appear in the matter before the Tribunal; the respondents had sufficient
defence in the case and that the respondents ought to have been given an opportunity in the matter including the right of letting in evidence.
Accordingly, they prayed for setting aside the ex parte order, dated 11.02.2000.
The case of the petitioner bank before the Tribunal was that there was a communication gap between the previous counsel at Coimbatore and
the counsel engaged at Chennai and the respondents had not diligently followed up the matter are sufficient to conclude that the respondents do not
deserve any indulgence; counsel for the respondents never reported the death of the fourth respondent to the Tribunal and after her death, it was
for the respondents to diligently follow up the case and that the copies of plaint and other documents were served on the counsel representing the
respondents and, as such, the application was to be dismissed.
The Tribunal, on a careful analysis of the materials available on record, held that the respondents herein filed a death extract of fourth
respondent, wherein it was stated that the fourth respondent expired on 23.05.1998, whereas vakalat was filed on behalf of respondents 1 to 4 on
13.02.1999, wherein fourth respondent''s signature was also found, and before filing the vakalat, already fourth respondent expired; therefore
respondents 1 to 3 ought to have known the death of the fourth respondent and, under the circumstances, how the fourth respondent signed in the
vakalat was not explained by the respondents. In the affidavit of the respondents, it was stated that fourth respondent was the mother of second
and third respondents. In such a situation, respondents 2 and 3 were bound to inform the Tribunal about the death of their mother Instead, they
filed vakalat on behalf of the dead person as well.
Learned counsel for the petitioner would strenuously contend that without considering the condonation of delay in filing the appeal, the main
appeal itself was taken up and, therefore, the order of Debt Recovery Appellate Tribunal is legally infirmed and that when there is a delay of 1287
days and in the absence of any explanation therefore, the Appellate Tribunal ought not to have traversed into the merits of the case. It is also
vehemently argued that the Debt Recovery Tribunal has given cogent and convincing reasons, taking note of the evidence, for arriving at the
finding, as there was no cause to set aside the ex parte final order passed on 11.02.2000 and, as such, the said finding cannot be reversed without
assigning any reasons. The mainstay of the learned counsel is that the Appellate Tribunal has no authority to compel the petitioner bank to accept
the settlement against its will.
Conversely, learned counsel for the respondents would contend that only after receipt of communication from the Recovery Officer on
05.10.2005, the respondents came to know of the ex parte order and, thereafter, after applying for the certified copy from Debt Recovery
Tribunal, they filed the appeal; the Debt Recovery Appellate Tribunal has considered the condone delay application properly and, hence, the
impugned order passed by the Debt Recovery Appellate Tribunal cannot be found fault with on the ground that the delay was not properly
explained.
We have considered the rival submissions made by the learned counsel for the parties and also gone through the records.
A perusal of the records would reveal that counsel for the respondents filed a memo on 24.06.1999, stating that he had not received copy of the
plaint and other documents. Counsel for the petitioner bank sent those copies to the counsel for the respondents on 23.07.1999 and the same
were received by him on 26.07.1999. Even after receipt of the copies, counsel for the respondents had not chosen to file reply statement and that
was why the respondents were set ex parte.
The application before the Tribunal was filed by another advocate to set aside the ex parte final order passed on 11.02.2000. Though the
mother of respondents 2 and 3 died on 23.05.1998, the same was not informed to the Tribunal till the filing of the application for setting aside the
ex parte order.
Adverting to the impugned order, it is to be stated that there was a delay of 1287 days in filing the appeal, for which an application was filed to
condone the delay. The reasons given for the delay was that the respondents received the communication from the Recovery Officer on
05.10.2005 and only thereafter they came to know about the decree and applied for certified copies of all the records from DRT and after
obtaining copies, they filed the appeal in time on 08.03.2002, but the appeal papers were returned on 12.03.2002 to rectify certain defects and the
same were not re-presented by the advocate. Though the said inordinate delay was not properly explained by the respondents, the Debt Recovery
Appellate Tribunal condoned the delay, which, in our considered opinion, could not be.
It is also seen from the records that there was a One Time Settlement between the petitioner and the respondents on 11.09.2001, by which the
respondents agreed to pay a sum of Rs. 9,29,163.33. But, the respondents were not able to pay the said amount in time. However, the
respondents, after a long lapse of time, approached the Appellate Tribunal praying that they would pay the said amount. Since the respondents
failed to pay the OTS amount, in pursuance of the order dated 11.02.2000, the Recovery Officer issued recovery proceedings dated 25.07.2005,
which cannot be found fault with. Further, when the Appellate Tribunal, by its order, dated 28.12.2006, directed the respondents to pay the
original borrowed amount together with interest at 12% per annum, which was not accepted by the bank, the respondents reported to the
Appellate Tribunal on 20.03.2007 that they deposited a sum of Rs. 27,82,735/- till that date and prayed that the said amount may be accepted as
full and final payment and they be discharged of the entire amount payable by them to the petitioner bank and the same was ordered by the
Appellate Tribunal accordingly, which order is under attack by the petitioner in this Civil Revision Petition.
When there was no satisfactory explanation by the respondents for the inordinate delay of 1287 days, it was very unfair for the Debt Recovery
Appellate Tribunal to condone the delay. Mere allegation of negligence levelled against the counsel cannot be a sufficient reason to condone the
delay. Instead, the respondents have also equal responsibility as that of the counsel to follow up the matter. There is also no evidence to show that
the respondents were following up the matter with the counsel. It is the own case of the respondents that they filed the appeal on 08.03.2002 and
the appeal papers were returned on 12.03.2002 to rectify the defects, but their advocate had not represented the papers. Further, the respondents
had not brought to the notice of the Debt Recovery Tribunal about the death of their mother and no steps also were taken to bring on record the
legal representatives of the deceased. Therefore, the Debt Recovery Appellate Tribunal was at error in condoning the delay. Thereafter, by
condoning the delay, Appellate Tribunal had gone to the extent of settling the dues with the amount of Rs. 27,82,735/- which was already paid by
the respondents and not agreed to by the petitioner bank. Here again, we see no justification in the order of the Appellate Tribunal. When the said
amount of Rs. 27,82,735/-was not at all compromised, the Debt Recovery Appellate Tribunal cannot compel and direct the petitioner bank to file
a full satisfaction memo before the DRT and hand over the documents of title to the respondents. Therefore, we allow this Civil Revision Petition,
setting aside the order of Debt Recovery Appellate Tribunal and confirming the order of Debt Recovery Tribunal. No costs. Consequently, the
connected M.P. Nos. 1 of 2007 and 1 of 2008 are closed.