Debts Recovery Tribunals and Appellate Tribunals

Jagvir Singh & Anr. vs Canara Bank on 5 February 2019

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MA 6 of 2019 Jagvir Singh & Anr.

Vs.

Canara Bank

05.02.2019

Item No.40

Advocate: Sh. BS Bali, Counsel for the Applicant Def. No.1.

IA 39 of 2019

The Applicant/Def. has filed this Application under Order 9 Rule 13 of CPC for condoning the delay of 37 days in filing the Misc. Application.

The Counsel for the Applicant/Defendant has stated that copy of order dt.21.08.2017 passed by this Tribunal had not been served upon the Applicants, therefore, they did not have any information about the same. The Applicant/Def. came to know about the said order when they received the summons issued by Recovery Officer. On enquiry the Applicant/Defendant found that on 21.08.2017 he was set ex parte. Thereafter he applied for copy of the order on 06.12.2018 which was received on 11.12.2018 and then filed the Applicant under order 9 Rule 13 of CPC on 13.12.2018. The Registrar returned the filed on 15.01.2018 to remove the objections and to refile within 7 days. Hence, delay occurred and prayed that the delay should be condoned.

Before prayer of the Applicant could be considered, it has been found that the Applicant has admitted that he came to know about the order dt.21.08.2017 when they received the summons from Recovery Officer to appear before him on 01.11.2018. Firstly the Applicant has failed to place on record as to on which date the summons were received. Moreover, it is not a delay of 37 days rather it has been found that the Bank who has filed OA on 27.09.2013 the notices of which were issued on 24.01.2014 to be returned by 09.05.2014. Thereafter the Bank has filed Service Report dt.10.12.2014 for service of defendants by registered post along with postal receipts dt.03.03.2014. The Bank has also filed service report with regard to dasti service stating that they had visited the residence of the defendant on 18.02.2014 but the defendant refused to

accept the summons. Thereafter at the request of the Resp./Applicant Bank through IA 1520 of 2015 the defendants were served by way of substitute mode of service, i.e., publication for which the service report was filed on 18.03.2016 having served through publication on 21.01.2016. Ultimately on the basis of the service report defendants were set ex parte on 13.04.2016 and not on 21.08.2017 as has been mentioned by the Applicant/Def. in the IA. Since the defendants were set ex parte on 13.04.2016, there is not a delay of 37 days but more than two years for which the Applicant/Defendant has failed to place on record any explanation of delay what to say about explanation of each day. Moreover, the Applicant/Defendant himself has admitted having received the summons issued by Recovery Officer, perusal of which shows that the Recovery Officer had sent the summons on the same address which is on record and the Bank had also sent summons through registered post. It is not digestible that how earlier summons were not received by the Applicant/Defendant when the summons sent by the Recovery Officer on the same address has been received.

Since the Applicant/Defendant was duly served through registered post and through publication which deem to be proper service, the plea of the Applicant/Defendant is not acceptable. Hence, the delay is not condoned. IA dismissed.

MA 6 of 2019

Since the IA for condonation of delay stands dismissed, MA is also disposed of accordingly.

File be consigned to record.

(Harcharn Singh), Presiding Officer, DRT-I, Chandigarh

05.02.2019/CMS

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