Balbir Kaur and Ors vs CANARA BANK on 15 May 2019

MA 34 of 2019

Canara Bank Vs.

Balbir Kaur & Anr.

15.05.2019

Item No.4

Present: Ms. Jyoti Sareen, Counsel for the Applicant/Def.

The Applicants/Defendants have filed this application for setting aside order dt.12.02.2019 vide which they were set ex parte and RC was issued.

The Counsel for the Applicants/Defendants received copy of judgement dt.12.02.2019 on 04.04.2019 and came to know that the OA was pending and that they were proceded ex parte vide order dt.11.02.2019. Thereafter they applied for certified copies of Zimni orders which were supplied to the counsel on 23.04.2019.

The Counsel for the Applicants/Defendants argued that vide order dt.12.10.2018, the defendants were directed to be served by way of registered AD/Speed Post as well as dasti whereas they were never served upon any such notice and that affidavit filed by Varinder Kumar Manager of the Bank itself shows that no effort was made to serve the defendants (Ann.D1/3). The Counsel for the Applicants/Defendants pointing out towards the contradiction in the statement of the said Manager stressed that while on theone had it has stated that for service of dasti summons they visited the defendants on 30.10.2018 but none of the defendants was available at the given address and said summons was affixed on the gate, wall of address premises whereas noting on the dasti summons, counter signed by Varinder Kumar Manager states that we have visited the party on 28.10.2018 and 30.10.2018, party refused to sign the paper. Summons was affixed on the gate wall of the addressee premises and photograph was taken.

Thus, it is clear that the Applicants/Defendants could not be served dasti, since they were not available on the given address on 30.10.2018 when the efforts were made to serve them. The Counsel for the Applicants/Defendants further argued that no AD card for serving the defendants through registered post has been placed on record. Thus, the Applicants/Defendants were never ever served by the Resp./Applicant OA Bank. Hence, the orders passed by the Tribunal on 11.02.2019 vide which the Applicants/Defendants were set ex parte and thereafter judgement and decree was passed theiragainst should be set aside and MA be allowed.

I have heard counsel for the Applicants/Defendants and perused the record.

Before the prayer of the Applicants/Defendants coule be considered, it has been found that the notices were directed to be served vide order dt.12.10.2018 and the matter was adjourned to 11.02.2019 on which date the Resp./Applicant Bank filed service report on the affidavit of Varinder Kumar, Branch Manager of Behram Sarishta, Distt. Jalandhar along with dasti service report, affixation as well as registered cover.

It has been found that the Bank has complied all the service modes of serving upon the defendants. The postal receipts placed on record itself is sufficient to prove service upon the defendants as the Applicants/Defendants themselves have admitted having received notices of Recovery Officer on the same address upon which the earlier summons were issued. It could never be presumed that the earlier notices did not reach the destination when the summons sent by the Ld. RO were duly received by the Applicants/Defendants. The Branch Manager, Varinder Kumar has cleary written that ”We have visited the party on 28.10.2018 and 30.10.2018. Party refused to sign the paper. Summon was affixed on the gate/wall of the address premises and photograph was taken.” Now the contention fo the Applicant that in the affidavit the concerned BM has stated that they visited the address fo the defendants for service through dasti on 30.10.2018 and none was available at the given address and that there is contradiction in the claim made by the Resp./Applicant Bank. But the Applicants/defendants have failed to rebut the affixation for which the photograph was also taken by the Bank and has been placed on record. Since the Applicants/Defendants have failed to deny affixation, the service deemed to have complated and when the Bank has proved on record service through all modes, the order to set them ex parte was rightly passed and merely an endorsement on the summons by the officer “not available” and on affidavit “refused to sign” is not sufficient to discard the due process and other modes. The Applicants/Defendants have also failed to satisfy on the point of limitation as the notices were duly proved to have been served on the same address upon which the notice of the Ld. Recovery Officer was sent which have duly been received by the Applicants/Defendants.

Further, it is not the case that the Applicants/Defendants or their counsel were not in the knowledge of hearing rather it is an admitted case that the Applicants/Defendants were aware and had knowledge of pendency of suit and had sufficient time to apper before the court. Moreover, the Applicants/Defendants have failed to prove that what prevented him to appear before the court. In such a case where the Applicants/Defendants having due knowledge of the pendency of the suit but still ignore the litigation, the Court cannot think of granting any relief to them. The law is otherwise very much clear as is crystalised by Hon’ble High Court in case of Ajita Sharma Vs. Rakesh Kumar Sharma (1999(1) Civil Court Cases 363 (P&H) and that by the Hon’ble DRAT in Swaran Singh Vs. Bank of Baroda (Appeal No.322 of 2019).

Hence, finding no merit, the MA is dismissed. File be consigned to record.

(Harcharn Singh), Presiding Officer, DRT-I, Chandigarh 15.05.2019/cms

OA 630 of 2017