SMT. ANUBHA MITTAL, vs CENTRAL BANK OF INDIA on 21 October 2022

1. 1. **Smt. Anubha Mittal**, W/o Late Rajiv Mittal, R/o Flat No.50, Ganpat Kings Kukretha, Sikandra, Agra - 282007.

2. 2. **Shri Nitesh Mittal**, S/o Late Rajiv Mittal, R/o Flat No.50, Ganpat Kings Kukretha, Sikandra, Agra - 282007.

3. 3. **Smt. Ambuja Mittal**, D/o Late Rajiv Mittal, R/o Flat No.50, Ganpat Kings Kukretha, Sikandra, Agra – 282007.

--Applicants

Versus

**Central Bank of India**, having its Central Registered Office at Chandra Mukhi, Nariman Point, Mumbai – 4000-21 and a Branch Office amongst other places at Civil Lines, Agra – 282 002, through its Chief Manager.

--Respondent

Present:

**For the Applicants** : Shri Kushal Kant, Advocate**For the Respondent Bank** : Shri Himanshu Tewari, Advocate**Dated: 21.10.2022**

1. 1. This Misc. Application has been filed by the M. Applicants u/s 22(2)g of RDB Act, 1993 for recalling the exparte order dated 03.03.2022 passed in O.A. No.741 of 2020.

2. 2. Reply of the Misc. Application has already been filed by the respondent bank denying all the allegations as alleged by the M. Applicants.

2DRT, AllahabadM.A. 50 of 2022 [J]**Heard on merits.**

1. 3. In its Misc. Application, the M. Applicants submitted that they have taken loan from the respondent bank and on default in making the payment, the respondent bank has filed O.A. No.741 of 2020 for recovery of Rs.9,71,00,680.04 together with interest and the said O.A. was allowed exparte by this Tribunal on 03.03.2022.

2. 4. It is further submitted that the said exparte order was received by post. Further submitted that the present Misc. Application has been filed within time.

3. 5. It is further submitted that the M. Applicants were never served with any summons or notices. Further submitted that on perusal of the exparte order dated 03.03.2022, it reveals that the notices were served by this Tribunal by substituted mode of service through publication.

4. 6. It is further submitted that in the year 2020 more particularly on 10.04.2020, the entire nation was under lockdown due to COVID-19 and there was no delivery of any newspaper at the house of the M. Applicants and the M. Applicants did not have any knowledge of any proceedings that have been initiated by the respondent bank under the provisions of RDDBFI Act, 1993 by way of filing Original Application before this Tribunal and only after receiving the exparte order dated 03.03.2022, the M. Applicants came to know about the case. Request is made to restore the O.A. to its original number and afford the M. Applicants an opportunity of hearing and decide the case on merits.

1. 7. In its reply, Ld. Counsel for the respondent bank submitted that the M. Applicants elected not to contest the O.A. and this Tribunal was left with no option except to decide the O.A. exparte. Further submitted that the M. Applicants were fully aware of the pendency of the case but purposely they choose not to file written statement/not to contest the case.

2. 8. It is further submitted that the present recall application is time barred. Further submitted that the M. Applicants have failed to appear before this Tribunal despite substituted service of notice through publication published in Amar Ujala dated 10.04.2021 and the version M. Applicants that notice was published on 10.04.2020 is wrong.

3. 9. It is further submitted that the notices were also dispatched on 10.02.2021 at the same address as mentioned in this M.A. and it is not the case of the M. Applicants that they were not residing at the given address. Further submitted that after filing of O.A., the bank had sold six mortgaged properties under SARFAESI Act, 2002 and the M. Applicants have handed over the peaceful possession of the properties in question and no litigation was done by them but despite aware about the pendency of the O.A., the M. Applicants choose not to file written statement/elected not to contest the O.A. Further submitted that full opportunities have been given to the M. Applicants before passing the exparte judgment and the M. Applicants have failed to prove on record any reason for recalling the judgment passed in the O.A. No.741/2020. Request is made that M.A. may be dismissed.

**I have considered the rival contentions of the parties and also perused the case records.**

1. 10. The grievance of the M. Applicants is that no notices have been served upon the M. Applicants after filing of O.A. No.741/2020 and this Tribunal has decided the O.A. exparte without affording any opportunity of hearing.

2. 11. On perusal of records, it appears that on 10.02.2021, the notices were issued to the M. Applicants but the said notices were returned back unserved. Thereafter, the respondent bank published the notice in the newspaper on 10.04.2021 in Amar Ujala but nobody turned up on behalf of the M. Applicants to contest the case. Therefore, the contentions of the M. Applicants that no opportunity has been given before passing the order dated 03.03.2022 is not correct and appears to be dilatory tactics.

3. 12. The Hon'ble High Court of Allahabad vide judgment dated 10.04.2015 in the matter of Raj Kumar Aggarwal vs. Suresh Chandra Jain has held as under:

*".....the following causes, on the other hand, have been held not be sufficient for absence of the defendant for setting aside an exparte decree:*

1. (1) *dilatory tactics;*

2. (2) *bald statement of noting wrong date in diary;*

3. (3) *negligence of party;*

4. (4) *counsel busy in other court;*

5. (5) *suit of high valuation;*

6. (6) *absence of defendant after prayer for adjournment is refused;*

7. (7) *hardship of defendant;*

8. (8) *absence to get undue advantage;*

9. (9) *mere thinking that the case will not be called out; not taking part in proceedings etc....."*

13. In the light of the above facts and circumstances and judgments cited above, the M. Applicants have failed to contest the O.A. even after affording opportunity of hearing which indicates negligence on part of the M. Applicants, therefore it cannot be said that no opportunity is given before passing the order dated 03.03.2022. Thus, no case is exists in favour of the M. Applicants for allowing the present Misc. Application for restoration of the O.A. No.741 of 2022. Accordingly, the present Misc. Application is liable to be dismissed.

The Misc. Application filed by the M. Applicants, is hereby dismissed with no orders as to costs.

A copy of this order be given to the parties.

Order signed, sealed, dated and pronounced in the open court on this the 21^st Day of October, 2022.

Dictated & Corrected by me

[R. M. Kushawāhā] /

Debts Recovery Tribunal, Allahabad

[R. M. Kushawāhā] Presiding Officer Debts Recovery Tribunal, Allahabad

/ac//