INDIAN OVERSEAS BANK vs POWER PAINTS INDIA PVT LTD on 7 January 2020

1**Debts Recovery Tribunal-III, Delhi****MA No. 88/2019 & 89/2019****In****OA No. 74/2017****IOB Vs. M/s Power Paints (India) Pvt. Ltd. & Ors.**

07.01.2020

In the present matter, MA No. 88/2019 has been filed on behalf of defendants under Order 9 Rule 13 of CPC along with Section 19(25) & 22 and other relevant provisions of RDDB&FI Act praying therein to set aside the ex parte order dated 18.12.2017 and ex parte final order dated 15.12.2018 passed by this Tribunal and all orders passed by this Tribunal in the present OA and to allow the applicants / defendants to contest the case on merits, in accordance with law.

2. One more application i.e. MA No. 89/2019 has also been filed on behalf of defendants under Section 5 of Limitation Act praying therein to condone the delay, if any, in filing the MA No. 88/2019.

3. The brief facts of MA No. 88/2019 are that the captioned matter was first time listed before this Tribunal on 22.02.2017 and issued notice to the defendants. On 18.12.2017, this Tribunal passed ex parte order against the defendants. When the applicants / defendants received the notice of Ld.

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Recovery Officer of this Tribunal on 08.03.2019, only then they came to know that the recovery proceedings are pending before the Ld. Recovery Officer against them and they approached their counsel who filed his vakalatnama on 11.03.2019 and inspected the file of the OA on 16.03.2019 and came to know about the ex parte proceedings.

4. It is stated in the MA that at the very first date on 22.02.2017, this Tribunal issued summon / notice against the defendants for 05.04.2017 which were directed to be served by way of Dasti as well as through registered post / speed post upon all the defendants. The captioned matter could not be listed on 05.04.2017 and it was listed on 10.04.2017 and was adjourned for 15.04.2017. On 15.04.2017, the applicant bank made request before the Ld. Registrar for issuance of fresh notice to all the defendants, accordingly, fresh notices were issued and the matter was re-notified for 02.06.2017. Thereafter, on 02.06.2017, Ld. Registrar re-notified the matter for 10.07.2017 since none appeared on behalf of the parties. On 06.07.2017, the applicant bank filed its affidavit of service wherein the bank mentioned that on 06.05.2017, the Dasti Notice was received by a person namely Mr. Mayank Jettley who claimed himself son of Sh. Himmat Jettley / defendant no. 3 in the captioned matter, at A-18, Inderpuri, New Delhi. On 10.07.2017, the matter was listed before Ld. Registrar wherein, in the Sd.

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ordersheet, it was recorded that the applicant bank has filed affidavit of service but till date defendants have not appeared, and the matter was adjourned to 04.08.2017. On 04.08.2017, at the request of Ld. counsel for applicant bank, the matter was listed before the Hon'ble Presiding Officer for necessary directions on 05.09.2017 as the defendants did not file their WS. On 05.09.2017, the Court was on leave, therefore, the matter was simply posted to 18.12.2017 and on 18.12.2017, the defendants were proceeded ex parte by Hon'ble Presiding Officer mentioning that the defendants have not filed their WS.

5. The main objection raised by Ld. counsel for defendants is that Sh. Himmat Jettley has no son namely Sh. Mayank Jettley nor has any knowledge of this person and further, the defendants were residing as tenant on the property bearing no. A-18, Inderpuri, New Delhi - 110 012 and has left the said property and shifted to property bearing no. A-108, First Floor, Inderpuri, New Delhi - 110 012 several years before the date of service of summon i.e. 06.05.2017. Further, the applicants / defendants have duly informed the applicant bank about the change of address and applicant bank is well aware about it. Even as per their affidavit of service, they themselves mention that Naraina property was a tenanted property which was occupied by some other tenant and was vacated by the defendants Sd-

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three years ago and as far as NOIDA property is concerned, the same was locked from one and half years.

6. It is stated in the MA that the applicant bank failed to comply the direction of this Tribunal and did not serve the notices to the defendants by register post. Further, on perusal of affidavit of service, it is evident that the summons were sent to the defendants on 19.04.2017 through speed post which was weighted 15 gm. Only and a value of Rs. 12.00 only paid on speed post, meaning thereby that the applicant bank sent only copy of summon and not the complete set of OA, however, tracking report of the speed post clearly states "item delivery attempt unclaimed" which means the notice could not be delivered on the defendants.

7. It is further stated in the MA that the applicant bank was well aware about the put up status of the defendants as the applicant bank has issued a sale notice on 14.03.2019 with respect to mortgaged property situated at A-58, Sector-58, Phase-III, Noida, Uttar Pradesh and the applicant bank has sent the Sale Notice to the defendants on the present address of the defendants i.e. A-108, First Floor, Inderpuri, New Delhi – 110 012, however, the applicant bank never served notice / summon by any mode at the present address of the defendants.

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Moreover, the applicant bank did not chose to serve the Notice bay of publication.

8. It is also stated that the Demand Notice issued by the Ld. Recovery Officer was also sent to the earlier address of the defendants i.e. A-18, Inderpuri, New Delhi, however, postman of the concerned post office knows the address of the defendants, therefore, the postman supplied the demand notice of the recovery proceedings at the address of the defendants i.e. A-108, First Floor, Inderpuri, New Delhi -110 012, this is how the applicants / defendants came to know, even, about the recovery proceedings. Hence, non-appearance of the applicants / defendants herein during adjudication before this Tribunal was neither intentional nor deliberate as the defendants had never received any notice issued by this Tribunal in the OA nor the same was ever informed the defendants by the applicant, accordingly, it has been prayed to allow the present MA.

9. Heard and record has been thoroughly perused. It has been contended on behalf of defendants that no service was effected upon them and the service on which they are relying is stated to be received by Sh. Mayank Jettley who was not related to defendants no. 2 to 4. Further, it is being submitted that defendants no. 2 to 4 were not residing on the address given in the petition i.e. A- Sd- AB

18, Inderpuri, New Delhi; rather they have been residing at A-108, First Floor, Inderpuri, New Delhi and this fact was very much in the knowledge of the applicant bank itself as one letter was issued on behalf of applicant bank on the given address of the defendants. Thus, the defendants were not got served intentionally by the applicant bank on the new address i.e. A-108, First Floor, Inderpuri, New Delhi, rather, the same were served at A-18, Inderpuri, New Delhi where defendants are not residing since long, therefore, proper service was not effected. Further, it is also argued that speed post acknowledgements have been placed on record but the same were returned back to the applicant bank and the same were not served upon the defendants as the defendants were not residing on the given address, therefore, there was no proper service effected, accordingly, the order of ex parte was wrongly passed by this Tribunal, hence, the applicants / defendants are entitled to join the proceedings by setting aside order dated 15.12.2018 passed in OA No. 74/2017.

10. Applicants / defendants have also filed another MA No. 89/2019 for condonation of delay wherein it is stated that the defendants came to know about the pending recovery proceedings when they received the notice of Ld. Recovery Officer on 08.03.2019 and thereafter they engaged their counsel on 16.03.2019 from where they came to Sd- AB

know that ex parte proceedings were carried out against them and RC was passed, accordingly, there was no intentional delay in filing present MA and he filed present application for setting aside Final Order as well to permit the applicants / defendants to contest the matter on merits, accordingly, prayed to allow present application.

11. On the other hand, Ld. counsel for non applicant bank vehemently contended that proper service was effected upon the defendants and merely that summons were not served on the given address does not mean that the summons were not served Dasti upon the other addresses i.e. A-9/1, 2^nd Floor, Naraina Industrial Area, Delhi and Industrial Property no. A-58, Sector-58, Phase-III, Noida where notices were duly affixed and it is not the case of the applicants / defendants that premises is being occupied by others. Further, notices were also served through speed post and the tracking report has been placed on record which shows that summons were duly served on 24.04.2017 and 21.04.2017 respectively on the respective given addresses, therefore, presumption is that served was proper, therefore, defendants were rightly proceeded ex parte, resultantly, ex parte final order was passed against them.

12. In the present matter, on behalf of applicant bank, photographs of factory premises i.e. Industrial ABHandwritten signature and the number 71.

Property No. A-58, Sector-58, Phase-III, Noida have been placed on record wherein notices were duly affixed and the Local Commissioner as well as officials of the bank were present on the premises on the date when the notice was affixed. Further, the notice was also received by defendant no. 1 on 06.05.2017 who is a company i.e. M/s Power Paints India Pvt. Ltd. Apart that, the tracking report of the postal authority has also been placed on record along with postal receipts wherein notices were issued to the defendants and the items were duly stood delivered and received on 21.04.2017, 24.04.2017, 22.04.2017. Even then, when the notices have been issued by post and the same have been duly delivered on the given address, the presumption is that same has been delivered. Merely, that notices were not given on the subsequent address i.e. A-108, 1^st Floor, Inderpuri, New Delhi does not mean that the service was not effected that too when no such proof has been placed on record to prove the fact that property bearing no. A-18, Inderpuri, New Delhi was already sold by the defendants and they are not residing at the given address. Further, no such documentary proof such as ration card, voter ID card, Aadhar Card etc. has been placed on record to show that the defendants have shifted to the property bearing no. A-108, 1^st Floor, Inderpuri, New Delhi; rather, they have been residing in the same locality and presumption is whether the service has effected by Sd/-

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affixation and also by registered post, the presumption is that service has been duly effected on the defendants and they have intentionally failed to appear before this Tribunal despite service and now just to make out the ground, notices have been received on the new address on 08.03.2019 when they came to know about pendency of recovery proceedings against them is not striking to this Tribunal. Further, no such proof has been placed on record to prove that the property bearing no. A-18, Inderpuri, New Delhi as well as factory premises are not still belonging to the defendants and they have no concern with the said properties and they have left the same long back and shifted to the property bearing no. A-108, 1^st Floor, Inderpuri, New Delhi. Further, it is the case of the applicants themselves that one notice issued by Ld. Recovery Officer, though sent to A-18, Indepuri, but since the postman was known to them, same was served upon the defendants at A-108, 1^st Floor, Inderpuri, therefore, the presumption lies in the same way in favour of earlier notices which were issued at the address of A-18, Inderpuri, New Delhi that the same have been served once the same has not been received back by the Tribunal. Further, no such certificate has been obtained by the applicant / defendants from the post office officials that earlier notices were not served upon them and the same were returned either to the applicant bank or this Tribunal, therefore, it is proved that the defendants sd

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were duly served in the present matter, accordingly, they were rightly proceeded ex parte. Hence, no ground is made for condonation of delay in filing present application as well as for allowing the application for setting aside ex parte Final Order, accordingly, both the MAs being MA Nos. 88/2019 & MA No. 89/2019, being devoid of merits, stand dismissed.

File be consigned to records.

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(DHARMINDER SINGH) PRESIDING OFFICER, DRT-III, DELHI

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