Pritam Singh & Anr. vs BANK OF MAHARASHTRA on 30 May 2019

MA 45 of 2019 Bank of Maharashtra Vs. Pritam Singh & another 30.05.2019 Item No.13 Present: Sh. Puru Jarewal, Counsel for the Applicants.

This Application has been filed by the Applicants/ Defendants No.1 and 2 for setting aside order dt.15.09.2018 vide which Applicants/Defendants were proceeded ex parte and RC dt.17.09.2018 was passed thereto.

The Counsel for the Applicants argued that they came to know about passing of the order when the Officers under recovery proceedings visited their mortgaged property on 01.05.2019. It was only after search that they came to know that they had been proceeded ex parte on 15.09.2018. The Applicants/Defendants approached the counsel who after getting file inspected applied for copies of order which were received on 17.05.2019. The contention of the Applicants/ Defendants is that they never received any notice by registered post/speed post and never served with dasti notice. Hence, the Applicants/Defendants have prayed that the MA be allowed and the orders dt.15.09.2018 be recalled.

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

Before the prayer of the Applicants/Defendants could be considered I have found that the notices were directed to be issued vide order dt.15.09.2017 to be returned by 16.12.2017 on which date servie report was filed with an affidavit of the concerned officer of the Bank whereby it has been categorically stated that Def. No.1 was served through his son Harminder Singh as Def. No.1 was not present and that notice could not be served upon Def. No.2 since he was out of town. Perusal of service report shows that signature of Harminder Singh is duly appended there upon in receipt of summons at 12.35 pm which was not denied. The Resp./Applicant OA Bank has also placed on record postal receipts of dt.09.11.2017 for service through registered post. Not only this the notice has been also published in the newspapers which has also been placed on record by the Resp./Applicant OA Bank.

Now once the Applicants/Defendants have duly been served through registered and dasti through son, an adult male member of the famil who is in communication with the family members and is residing at the same address, it cannot be presumed that the Applicants/Defendants were not having knowledge of proceedings and the service was sufficient. Since the notices were duly despatched and served dasti on the address given in the plaint, therefor,e it cannot be considered as defective service rather it was a due service.

In the light of the above, it is proved that the Applicants/Defendants were aware and had knowledge of pendency of suit as dasti service has been duly proved on record and the Applicants/Defendants had sufficient time to apper before the court but they did not appear. 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

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