Bhupinder Singh & Anr. vs CANARA BANK on 12 July 2019

MA 20 of 2019 Canara Bank

Vs.

Bhupinder Singh & Anr.

12.07.2019 Item No.39

Advocate: Sh. Amardeep Singh, Cousnel for the Applicants/ Defendants.

Sh. KAK Davesar, Counsel for the Resp. Bank.

The Applicants/Defendants have filed this application of recalling order dt.23.05.2018 whereby the Applicants/ Defendants were proceeded ex parte.

The Counsel for the Applicants/Defendants stated that they never received any summons issued by this Tribunal nor they were ever informed by the Resp./Applicant OA Bank. They virtually came to know about passing of ex parte order on 21.02.2019 through telephone from Branch Manager that Recovery Certificate has been issued against them and the matter is pending before Recovery Officer on 22.02.2019.

The plea of the Applicants/Defendants is that the Resp./Applicant Bank has played mischief and fraud by concealing true facts from the court since the Bank never served them with notices. Moreover, they are not residing on the given address since long but are presently residing at Jalandhar City. On coming to know that the matter is pending before Recovery Officer, they applied for inspection of file on 22.02.2019. It has been found that the Bank has submitted false affidavit that the Applicants/Defendants refused to receive the summons/notices and forcibly restrained the Bank officials to affix the summons on the wall of the residential house whereas the Bank officials never approached the Applicants/ Defendants for the purpose of service. For the service through registered post and publication service report through registered post on tracking of Postal Office site, it states consignment details not found (Ann.A3 and Ann.A4). The Counsel for the Applicants/Defendants has stressed that the newspapers in which notices were published are not in circulations in the area where the Applicants/Defendants were alleged to reside. Thus, the Applicants/Defendants have prayed that when the notices were not served upon them and the Bank has played fraud, the order dt.23.05.2018 proceeding ex parte against them should be recalled and MA should be allowed.

The counsel for the Resp./Applicant OA Bank besides filing reply has argued that the Application is barred by limitation. He further argued that the Applicants/Defendants have failed to appear before the court despite service through all modes and thus the order passed by this Court is legal and valid. The contention of the Applicants/Defendants that they did not reside there is also not reliable since they never informed the Bank ever about the change of their address. The summons were duly sent by registered post on 14.009.2017 and when the Manager of the Bank went to serve dasti on 31.10.2017, the defendant refused to receive the summons and also did not allow the Bank official even to paste the same on the given address. The Bank Official filed service report vide dairy No.9671 dt.08.11.2017 along with original postal receipts (Ann.CH1). Even the service through publication was also effected and notice was also sent to both the CDs by post on 14.03.2018 (Ann.CH2). The Applicants/Defendants when did not appear even after publication, they were rightly set ex parte and the Tribunal has rightly passed decree against them. Since the Application filed is nothing but an attempt to derail recovery process, the same be dismissed.

I have heard counsel for the parties and perused the record.

It has been found that the Applicants/Defendants were directed to be served through registered post and dasti vide order dt.14.08.2017 to be returned by 09.11.2017. The Bank filed service report vide diary no.9671 dt.08.11.2017 along with postal receipt of sending the notices through registered post while stating that the dasti summons were refused by the defendants. On the request of the Resp./Applicant OA Bank the defendants were served through publication vide order dt.10.01.2018 for which service report was filed by the Bank vide diary no.3025 dt.22.03.2018. When the defendants failed to appear even after service through publication, ex parte proceedings were started against them vide order dt.22.05.2018 and judgement decree was passed on 23.05.2018.

Now the contention of the Applicants/Defendants that they do not reside in the place of service seems to be an afterthought since they have failed to place on record any evdence to prove that they have ever informed the Bank about change of their address. Moreover, the notices sent through registered posts were never received back from the Postal Authorities, which itself indicates that the notices were duly received by the Applicants/Defendants and they knew about the proceedings having been initiated by the Bank against them.

Further, the Applicants/Defendants have failed to prove that they were not in the knowledge of hearing as the ntoices were subsequently published in the newspapers which is notice to the general public too and hence were aware and had knowledge of pendency of suit and had sufficient time to apper before the court. The concocted story of the Applicants that they got the information on receiving a call from the Bank Officer too is without any basis in the absnece of any evidence. 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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