IIHT SYSTEMS LIMITED vs BANK OF BARODA on 3 December 2021

IN THE DEBTS RECOVERY TRIBUNAL LUCKNOW Present: A. H. Khan, Presiding Officer Dated of order 03-12-2021 M.A. No.01 of 2016 Present:- Mr.N.Chandranshul Mr.Aiesh Anernd l ' Final arguments were heard on 29-10-21 and case was reserved for pronouncement of orders.

2. The applicants have filed the present MA on 0l-01 -2016 praying to recall the judgment and order dtd.22-08-14 passed by this Tribunal in OA No'332 of 2009 and to restore the aforesaid OA to its original number for being decided on merits.

3. The case of the applicants, in brief is that they caused appearance through their Advocate on 04-12-2oog in the oA filed by the bank and sought time to file objections and that an application dtd.12-03-2010 was also field for dismissal of the oA on substantial facts and legal grounds. That since their Advocate was empanelled for defendant bank, they engagecl another Counsel who caused appearance and filed his Vakalatnama and time was granted to file written statement. That since applicants (defendants in OA) f'ailed to file written statement, the opportunity to file the same was closed by this Tribunal vide order dtd.31-05-2012 and thereafter since none appeared on behalf of applicants, finar judgment dtd.22-og-2014 was passed by this Tribunal without deciding the pending interim application dtd.l 2-03-2OlO filed by the applicants in the oA and also without deciding the application dtd' 1 2-08'2010 filed by bank. That it is settled law rhat any case cannot be finally decided by any court or tribunal without deciding pending applications in the case' That no exparte order was ever passed against the applicants and if judgement dtd.22-08-14 is not recalled, applicants shall suffer irreparable loss and injury. Alongwith the MA, applicants have also filed an application for condonation of delay. 4' Respondent bank has not filed any reply to the MA but they haye filed reply to application for condonation of delay wherein it is contended that after filing of the oA, applicants (defendants in the oA; appeared through their Counsel on various dates but no reply was filed by them and finally their opportunity to file written statement was closed and case was listed for final hearing on various dates and subsequently judgment was passed. That since Counsel for the applicant Counsel for the bank applicants failed to appear on several dates, they were proceeded exparte. That for more than five years, applicants did not file any written statement which was in violation of Rule 12 of DRT (Procedure) Rules, 1993 which require the defendants to submit their reply within 30 days. That provisions of Rule l2(4) which after amendment is numbered as Rule 12(7) provides that in case the defendants fails to file reply as specified, the Tribunal may proceed forthwith to pass an order on the application as it thinks fit. That application for condonation of delay has been moved only with the intention to keep the matter pending and avoid payment ofdues and frustrate the recovery process.

5. Duly considered submissions and perused the records.

6. It is an admitted fact that applicants had caused appearance in the OA No.332 of 2009 through their Counsel and were granted various opportunities to file written statement however they failed to file the same. Thus, it is not the case ofthe applicants that they were not serve with any notice or that they were not aware of the proceedings initiated by the bank by way o1' OA. Applicants have themselves admitted in Para 5.8 of the MA that since they failed to file written statement, their right was closed on 3l-05-2012. Thereafter, on 22-08-2014 i.e. almost after two years, OA was finally decided and judgment was passed. Applicants have not given any reason as to why they did not appear before the Tribunal during the period 31-05-12 and 22-08-14. Further, as per averments made by the applicants themselves, they came to know about thejudgment on 30-10-15 however they filed the present MA on 01-01-2016 i.e. almost after two months. Applicants have also not given any reason as to why they did not took care of their case between the period 22-08-14 and 30-10-15 i.e. for almost more than 14 months when they were fully aware that proceeding are in progress against them in the Tribunal. Applicants have also not given any explanation as to whether they enquired about the case from their Counsel or from the office ofTribunal between the period 31-05-12 when their right to file written statement was closed till 30-10-15 when they came to know about the judgment passed by this Tribunal.

7. From the above, it is evident that applicants have been grossly negligent and had deliberately not participated in the proceeding before the Tribunal with the sole intention of delaying the recovery proceedings. They f-ailed to file any written statement and also did not cause appearance before the Tribunal till 22-08-14 when final judgment was passed. Even after 22-08-14, they waited for almost one year and then all of a sudden they came to know about the judgment on 30-10-15. It is well settled by Hon'ble Apex Court in catena of judgments that sleeping and negligent litigants does not deserve any relief fiorn the courts.

8. In view of above discussions, I am of the considered opinion applicants have failed to make out any case for condonation of delay that and therefore application for condonation of delay merits and substance. As a consequence, the being barred by limitation. File be consigned to record room. is dismissed being devoid of present MA is also dismissed -i .-..! ,"-'+ ./ ,/ \A.W Khan) Presiding Officer