Susanta Debnath vs STATE BANK OF INDIA on 4 July 2022

**FINAL ORDER**

Delivered on 04.07.2022

The Applicant / Petitioner, who is the respondent(s) in the O.A. application being O.A. No.455 of 2014, has been filed this M.A. being M.A. No.52 of 2018 under section 22 Sub Section (2) and Sub Rule (G) of the Recovery of Debts & Bankruptcy Act, 1993 (amended from time to time) on 14.11.2018 praying for setting aside the *ex-parte* decree passed by this Tribunal on 03.08.2018 and to stay all proceedings in regard to the RC Case No.211 of 2018 till disposal of the instant MA on the grounds as below :

(a) That the petitioner received one Notice of R/C case No.211 of 2018 arising out of OA No.455 of 2014 only from the Recovery Officer on 13.09.2018 along with judgement and order dated 03.08.2018; (b) That the R.C. Case No.211 of 2018 was fixed on 10.10.2018 for further hearing before Recovery Officer; © That from the Notice of RC Case No.211 of 2018 the Applicant came to know that the OA being OA No.455 of 2014 was heard ex-parte and accordingly judgement and final order has been passed on 03.08.2018. A copy of the Notice issued by Mr. S. Chatterjee, Recovery Officer of this Bench along with postal envelop are annexed as "**Annexure A**" collectively; (d) That the Respondent Bank has instituted suit vide OA No.455 of 2014 in this Tribunal and obtain an ex-parte decree on 03.08.2018 in the absence of the Applicant;

(e) That the Advocate appointed by the Applicant never informed the petitioner about the ongoing proceeding of OA/455 of 2014, therefore, this petition has no internal laches on his part. It is settle Principal of Law in case of laches by layer litigant will not suffer; (f) That the Applicant or his wife never received any proper summon in regard to the Case No. OA/455 of 2014 from the Court; (g) That According to settle Principal of law a party should get ample chance to get relief from the Court of Law; (h) That no proper summon has been served at the address of the Applicant;

(i) That the Applicant has suffered financial hardship for the said ex-parte decree passed on 03.08.2018; (j) That the Applicant states that the Recovery Officer send demand notice claiming a sum of Rs.33,13,029/- is not correct and that was inflated which is to be scrutinized properly. The said Demand Notice under section 25 and 28 of the Recovery of Debts due to Banks & Financial Institutions Act, 1993 and Rule 2 of Second Schedule to the Income Tax Act' 1961 is annexed along with this M.A.

(k) A Certificate for Rs.33,13,029/- under section 19(22) of the Recovery of Debts due to Bank and Financial Institutions Act, 1993 (Act 51 of 1993) is also annexed with this M.A.

2. Order dated 03.01.2019 transpires that the Misc. Applicant has also filed an application under section 5 of the Limitation Act for condonation of delay in filing the present MA and an application for stay of the RC proceedings in RC/211 of 2018 with the prayer to condone the unintentional delay of 69 days on the grounds stated below :

(a) That the Applicant received one Notice dated 13.09.2018 from the Recovery Officer along with the judgement and final order dated 03.08.2018 and also along with Postal Envelop. Copy of these documents are annexed collectively and marked as "A"; (b) That the Applicant filed an application under section 22 Sub Section (2) and Sub Rule (G) of the Recovery of Debts Due to Bank and Financial Institutions Act, 1993 with the submission that the instant MA is very much within the limitation period considering the date of knowledge of decree on 13.09.2018 though decree has been passed on 03.08.2018; © That in regard to the date of judgement of final decree dated 03.08.2018 there is an unintentional delay of 69 days; (d) That there is no intentional latches on the part of the petitioner inspite of that found, if any, be condoned on the grounds above; (e) That no proper notice has been served to the Applicant as the Applicant or his wife never received the summon of the OA/455 of 2014 though he received the copy of the RC Case No.211 of 2018; (f) That the demand of the Recovery Officer is very much hardship as on date as the Applicant has no means of income.

3MA/52 of 2018 – DRT-2, KOL

1. 3. Order of this Tribunal dated 14.11.2018 revealed that a Misc. Application being MA No.52 of 2018 (arising out of OA/455 of 2014) has been filed by the Petitioner Susanta Debnathon 10.10.2018. The petitioner is the respondent No.2 in the OA application, duly verified by the petitioner for recalling the Final Order dated 03.08.2018 passed by the Hon'ble P.O., DRT-2 Kolkata.

2. 4. The Misc. Application has been filed after 69 days from the date of final decree dated 03.08.2018 passed by the Hon'ble P.O. Thus, the application has become time barred by 39 days. However, the Applicant has also filed an application under section 5 of Limitation Act for condonation of delay of 39 days.

3. 5. Since the Chief Manager (Nodal Officer) / representative from defendant Bank, who presented himself in the DRT-2, Kolkata, refused to take the MA Application and would not ensure service of summons and MA to the concerned Branch, a copy of petition has been sent to Respondent Bank of MA case by post on 19.11.2018. Thus, service of petition upon respondent Bank is complete.

4. 6. Order dated 03.01.2019 reveals that the Applicant has also filed an application under section 5 of the Limitation Act for condonation of delay in filing the present MA and an application for stay of the RC proceedings in RC/211 of 2018.

5. 7. Written objection on behalf of the Respondent/Applicant against the petition of the Applicant/Defendant No.2 under section 22, sub-section 2, Rule (g) of the Recovery of Debts and Bankruptcy Act, 1993 to the MA has been filed by the Respondent / Bank stating that (i) all the statements made in the petition are absolutely false and misleading, completely contrary to records; (ii) the petition is barred by the law of limitation and is bad in law as well as in facts; (iii) since Recovery Certificate has been issued by this Tribunal in OA No.455 of 2014, there is no scope for allowing the prayers made by the Applicant/Defendant No.2; (iv) it is not a fact from the notice of R.C. case No.211 of 2018, the Applicant/Defendant No.2 came to know that the OA No.455 of 2014 has been heard or the same was heard ex-parte or judgment/final order has been passed on 03.08.2018 by the Hon'ble P.O. Further, the Applicant/Defendant No.2 has chosen not to contest the same and hence the OA was directed to be proceeded ex-parte vide order dated 11.06.2018, copy of which is annexed as Annexure – "W/1"; (v) it was always within the knowledge of the Applicant/Defendant No.2 that the Respondent/Applicant had filed the OA/455 of 2014 and copy of the OA/455 of 2014 was duly served upon the Applicant/Defendant No.2; (vi) besides service of summons in connection with the OA/455 of 2014 upon the Applicant/Defendant No.2, in February, 2016 one put up petition along with one petition for expeditious disposal was moved and for which notice was once again served upon the Defendant No.2 of which affidavit of service has also been filed, copy of which is annexed as Annexure "W/2"; (vii) it is not a fact that it is settled principle of law that a party should get ample chance to get relief from the court of law; (viii) it is also not a fact that no proper summon has been served at the address of the Applicant/Defendant No.2, and neither the Applicant nor his wife has received the summon, thus the petition suffers from blatant falsehood and misrepresentation before this Tribunal; (ix) it is also not a fact that the Applicant has suffered hardship for the ex-parte decree passed on 03.08.2018 and finally (x) if the petition is allowed, it shall cause irreparable loss and injury to the Respondent / Bank and there shall be absolute abuse of the judicial process by opening scope for a de novo trial, which is contrary to the settled principles of law.

8. Besides above, objection to the Section 5 application and objection to the petition of the Misc. Application for stay of RC proceedings being RC/211 of 2018 have also been filed with the prayer to dismiss the petition in limini with exemplary cost being imposed upon the Applicant/Defendant No.2.

9. On the point of limitation, a copy of the petition has been sent to the Respondent Bank of MA Case by post on 19.11.2018. The Track Report of the postal delivery is placed in the file, thus Service of petition upon Respondent Bank is complete.

10. Upon observing all the statements, documents, annexures etc. as detailed above, I pass the following order –

O R D E R

(i) The instant M.A. being M.A. No.52 of 2018 arising out of O.A/455 of 2014 has been filed by the Misc. Applicant / Defendant No.2, Mr. Susanta Debnath on 14.11.2018. The Applicant has filed an application U/s 5 of the Limitation Act to codone the delay of 69 days in filing the instant Application. It is observed that the Registry of the Tribunal has assigned M.A. No.52 of 2018 without even hearing the delay petition, though the Respondent Bank has filed objections to the Sec.5 application U/s 5 of the Limitation Act on 03.01.2019 to dismiss the same as there are no merits in the said application, and the Applicant / Defendant(s) were proceeded ex-parte on 11.06.2018 and decree / order was passed on 13.09.2018, no attempts were made by the Applicant / Defendant to appear and contest the matter.

(ii) However, since the application has been numbered by the Registry by in-advertence, the said delay of 69 days is deemed to be allowed; accordingly, the M.A. is to be adjudicated.

(iii) The application U/s 22(2) and sub-Rule G of the RDDB Act, 1993 has been filed to set aside the ex-parte decree passed on 03^rd August 2018. That upon receipt of notices in RC No.211 of 2018 from the Recovery Officer, the Applicant has come to know about the disposal of O.A. No.455 of 2014. That the applicant has never received any proper summon in request of O.A. No.455 of 2014 from the Ld. Court in any mode or manner and that the notice of RC case has only been received in the same address. It is observed from record and order dated 11.06.2018 where Mr. S.L. Adak, Ld. Counsel filed vakalatnama on 11.02.2016, but no written statement has been filed nor they are represented, and hence, they were proceeded ex-parte. The respondent Bank has referred to the put up application for expeditious disposal and notice were served upon the Applicant / Defendants on 01^st January 2016 to appear for hearing on 11.02.2016 that the said notices were served on the Defendants as is evident by the postal track report. "item delivered" to Debnath Textiles and Susanta Debnath on 03.02.2016; thus, the allegations made by the Applicant suffer from blatant falsehood and misrepresentation before this

Tribunal and shall be dismissed with exemplary costs. The admission of the Applicant at para 5 of the petition that the Applicant initially appointed Advocate to look after the case and that he never informed the petitioner about the ongoing proceedings of O.A./ 455 of 2014 itself shows that the Applicant was not diligent in defending the case.

(iv) Thus, there are no merits in the instant M.A. for this Tribunal to interfere, further the Tribunal has provided opportunities to the Applicant / Defendant(s) as the O.A. is of the year 2014 and the matter was disposed in 2018 on merits. Evidently the Applicant / Defendant(s) has availed credit facilities from the Respondent Bank and have defaulted the same. Huge public money is involved for recovery, hence the M.A. is liable to be dismissed; accordingly, M.A. No.52 of 2018 arising out of O.A. No.455 of 2014 is **dismissed**.

(v) However, the Applicant is at liberty to approach the Respondent Bank for settlement of the outstanding dues along with 20% of the certificate amount within 15 days from the date of this order failing to comply with the same, the recovery proceedings shall be enforced, in accordance with law.

Accordingly, the M.A. being M.A. No.52 of 2018 arising out of OA /455 of 2014 is dismissed and disposed of.

No order as to cost.

This order is dictated and corrected by the undersigned and pronounced on this the 04^th day of July, 2022. None has appeared for either of the parties.

Order be uploaded in the Tribunal's Website.

Sd/-

(Makena Srinivasa Rao) Presiding Officer DRT-2, Kolkata