M/S SOBITS BUILDWELL LTD vs ORIENTAL BANK OF COMMERCE on 20 September 2024

ORDER

1. 1. This case was heard on 13.9.2024 and was reserved for order on maintainability of the recall application.

2. 2. The present M.A. had been filed by the applicants on 06.8.2023 under Section 22 (2)(g) read with 19(25) of the RBD Act, 1993 to recall the ex-parte order dated 03.8.2022 passed by this Tribunal in O.A. No.1093/2018. He submits that M.A. is well within limitation from the date of actual knowledge of the said ex-parte order as well as from the date of obtaining the certified copy of the said ex-parte order dt. 03.08.2022 from the registry of this Tribunal and his application for condonation of delay is also on record for condoning the unintentional delay caused in approaching this Tribunal to challenge the ex-parte order dated 03.08.2022. He further submits that no any notice was ever issued and served to the applicant from the Registry of this Tribunal for the appearance of the applicant before this Tribunal, which can be verified from the documents and the notices available on record, therefore, the M.A be allowed and an opportunity of hearing may be given to the applicant to plead their case on merits.

3. 3. The applicant further stated that the name and address of the applicant mentioned in the O.A. No.1093 of 2018 as "Sobits Buildwell Ltd having its address at M-33, BDA Colony, Nainital Road, Bareilly" is wrong, however, the actual name and address of the applicant is "Sobtis Buildwell Ltd. having its registered address at E-32, DLF, Kirti Nagar, New Delhi 110006" and the defendant No.1 to this Misc. application " Punjab

National Bank" was very well aware from this facts but in-spite of this the name and address of the applicant was wrongly mentioned in the O.A for playing fraud and concealment of the facts which can easily be seen from the record/annexures/documents filed for obtaining a favourable Order and decree from this Tribunal. It is further stated that the postal receipts filed by the bank regarding the service of summon on the applicant are on record which are without acknowledgment and tracking reports, therefore order was passed by the registry of this Tribunal to serve the summons through the substituted service i.e. "Paper Publication" but in the publication also the name and address of the applicant has been intentionally wrongly mentioned, the defendant Bank did not took proper steps of the Paper Publication even after passing of several Orders by this Tribunal in this regard, later on the basis of an order which has lost its legal sanctity and at very belated stage on 21.12.2021, the respondent bank filed newspaper publication dated 03.3.2020 in which the date of appearance for the defendants to the O.A before Ld. Registrar was fixed as 30.4.2019. The said publication was made in reference to the order dated.7.2.2019 which has already become redundant after passing of the subsequent orders dated 27.5.2019, 26.9.2019, 03.01.2020 and 18.8.2021. Here again, with an intention to play fraud, the defendant no. 1 Bank filed News Paper which was published on 03.3.2020 for appearance on 01.4.2019 i.e. for the date which was already elapsed more than one year back, this act of the defendant Bank is a deliberate malafide act to get the decree by playing fraud and concealment from this Tribunal, hence, in the absence of any proper summon being issued and served upon the applicant, the M.A. is to be allowed and DRC no.35 of 2023 is to be quashed against the applicant / defendant no. 4 in the O.A. 1093 of 2018. He submits that it is a well settled position under the law that an order and decree obtained by concealing the actual facts tantamount to a fraud being played upon the Court and as such the order and decree obtained by fraud is nullity in the eyes of law and is to liable to be set-aside by the Court at any stage of the proceedings. The said principle has a been laid down by the Hon'ble Supreme Court in the matter of "A.V. Papayya Sastry & Ors vs Government Of A.P. & Ors"

4. The applicant further relied on the pleadings made in the Misc. Application and prayed to allow the said M.A.

Heard counsel for the applicant and perused the record.

5. None appeared for the respondent-bank despite sufficient service through registered post.

6. It is observed from the perusal of order sheet of O.A. No.1093/2018, it is reflected that after service of notice, the defendant Nos.1 to 3 have appeared on 30.4.2019 through their counsel, who gave an undertaking to file Vakalatnama on defendant Nos.1 to 3 by the next date, however, no service report in r/o defendant No.4 is recorded in the order sheet. Subsequently, the defendant Nos.1 to 3 did not appeared in the matter before this Tribunal, therefore, the Registry had directed the bank to take step for publication of notice "Summon" within 15 days vide order dated 27.5.2019 but the bank failed to take steps for the publication of the summon, thereafter, the Registry had again directed the bank to take fresh step for publication of notice " Summon" within 15 days vide order dated 26.9.2019 but the bank again failed to take steps for the publication of the summon, thereafter, the Registry had again directed the bank to take fresh step for publication of notice " Summon" within 15 days vide order dated 03.1.2020 but the bank again failed to take steps for the publication of the summon, thereafter, the Registry had again directed the bank to take fresh step for publication of notice " Summon" within 15 days vide order dated 18.8.2021 but the bank again failed to take steps for the publication of the summon, while passing the order dated: 18.8.2021 the next date of listing was fixed in the matter as 21.12.2021 for filing paper publication by the bank but on the date fixed i.e. 21.12.2021 when the matter was taken up, the respondent bank filed newspaper publication dated 03.3.2020 in which the date of appearance for the defendants to the O.A. before Ld. Registrar was fixed as 30.4.2019. The said publication was made in reference to the order dated.7.2.2019 which has already become redundant after passing of the subsequent orders dated 27.5.2019, 26.9.2019, 3.1.2020 and 18.8.2021.

7. It is also observed that bank has failed to take proper steps for the publication of summons for which repeated orders were passed by the Ld. Registrar and by filing on dated 21.12.2021, the newspaper publication dated 03.3.2020 in which the date of appearance for the defendants to the O.A was fixed as 30.4.2019.

1. 8. It is observed that the bank had violated order passed by this Tribunal and had not acted in fair and transparent manner in the matter and tried to mislead the Tribunal for obtaining a favourable order, the said conduct of the respondent bank cannot be appreciated in any way.

2. 9. It is also observed that the actual name and address of the applicant which is "Sobtis Buildwell Ltd. having its registered address at E-32, DLF, Kirti Nagar, New Delhi 110006" has been wrongly mentioned in the summons and the notices issued in the matter as "*Sobits Buildwell Ltd having its address at M-33, BDA Colony, Nainital Road, Bareilly*"

3. 10. In view of the above stated facts, this Tribunal has no reason to disbelieve the contentions of the applicant as stated in Para 5.5 of the M.A that the applicant to the M.A./defendant No.4 to the O.A. came to know about the proceedings on 28.5.2023 only when an employee of the company named "Mr. Firoz Shafi" went to the office of PNB.

4. 11. The case was decided ex-parte against applicant on 03.8.2022. The copy of ex-parte judgment was not sent to applicant (defendant no.4 to the O.A). There is no proof of service regarding supply of free copy of judgment as per Rule 16 of the Debts Recovery Tribunal (Procedure), Rules, 1993 to the parties including the applicant, in the record file of said case.

5. 12. The above fact indicate that service was not sufficient on respondent no.4 (applicant to the M.A) in the proceeding of O.A., the delay in filing the M.A. is, therefore, liable to be condoned and the ex-parte judgment passed against the applicant/defendant no.4 only is also liable to be set aside.

ORDER

1. 13. The delay condonation application moved under Section 5 of the Limitation Act is allowed.

2. 14. The ex-parte judgment and decree passed against the applicant to the M.A./defendant no.4 in OA No.1093 of 2018 on 03.8.2022 is set aside against defendant no.4 only.

5

M.A. No. 96 of 2023

- 15. The Recovery Officer can proceed against the remaining Judgment Debtors in accordance with law and is at liberty to recover the amount of DRC from the uncharged properties of other Judgment Debtors excluding the defendant no.4 to OA No.1093 of 2018.

- 16. The Recovery Officer is directed not to proceed against the properties in which the applicant/defendant no.4 to OA No.1093 of 2018 "Sobtis Buildwell Ltd" is having any direct or indirect interest, including the properties (Flat) mentioned in the two Tripartite Agreement "TPA" dated 30.9.2015 alongwith buyers agreement(s), the copies of which are annexed with O.A.

- 17. The defendant no.4 is directed to appear in OA No.1093 of 2018 on 12.11.2024 before the Registrar and file its written statement.

let the M.A. be consigned to record.

(A.H. Khan) Presiding Officer