Debts Recovery Tribunals and Appellate Tribunals
Sankar Halder vs IDBI BANK on 22 July 2022
**ORDER SHEET**
**KOLKATA DEBTS RECOVERY TRIBUNAL NO.2**
**Case No. M.A. 12 of 2019**
(in SA/1213 of 2014)
Sankar Halder & Anr.
Misc. Applicants
Vs.
IDBI Bank & ors.
Defendant Bank
<table border="1"><thead><tr><th data-bbox="158 181 251 258">Date<br/>Of<br/>Order</th><th data-bbox="251 181 781 258">Order with<br/>Signature</th><th data-bbox="781 181 916 258">Office action<br/>with date and<br/>dated signature<br/>of parties when<br/>necessary</th></tr></thead></table>
Order No.07
22.07.2022
Counsel for the parties:
For the Misc. Applicants : None
For the Defendant Bank : None
M.A./ 12 of 2019 is dismissed and disposed of.
Final Order is in separate sheet.
By Order
Presiding Officer
DRT-2, Kolkata
1
MA/12/2019 – DRT-2/Koi
**DEBTS RECOOVERY TRIBUNAL - 2, KOLKATA**
JeevanSudha Bldg., 07<sup>th</sup> Floor, 42/C, J.L. Nehru Road, Kolkata – 700071
Before Shri Makena Srinivasa Rao, Presiding Officer **M.A. No.12 of 2019**
In
**SA/1213/2014**
In the matter of
1. 1. **Sankar Halder**, son of Late Mukunda Halder, carrying on business in the name and style of Halder Modern Raw Rice Mill, as the sole proprietor thereof having office at Village-Rangapara, P O & P S.-Kalna, District-Burdwan, Pin-713409.
2. 2. **Subhashis Halder**, son of Sankar Halder, residing at Village-Uttar Goara, Sekhpara, Hat Kalna, P O Nibhujibazar, P S. Kalna, District-Burdwan, Pin-71344.
.....Miscellaneous Applicant.
-Versus-
1. 1. **IDBI Bank Limited**, having its Head Office at IDBI Tower, WTC Complex, Cuffe Parade, Mumbai-400005 and having its Branch Office at IDBI House, 4A, Shakespeare Sarani, Kolkata-700 017
2. 2. **Authorized Officer, IDBI Bank Limited**, having his office at IDBI House, 4A, Shakespeare Sarani, Kolkata-700017.
3. 3. **Gobinda Halder**, son of Late Mukunda Halder, residing at Village – Rangapara Uttar, Purbapara, P O & P.S. Kalna, District – Burdwan, Pin-713409.
.....Defendants
Counsel for the parties:
<table border="0">
<tr>
<td>For the Misc Applicant</td>
<td>: None</td>
</tr>
<tr>
<td>For the Defendant Bank</td>
<td>: None</td>
</tr>
</table>
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**FINAL ORDER**
Delivered on 22<sup>nd</sup> July, 2022
The present Misc. Application has been filed by the Applicant on 07.03.2019 being aggrieved by the order of dismissal of SA 1213 of 2014 vide order dated January 12, 2019. In the present misc application the applicant has prayed for recalling the order of dismissal passed in SA/1213 of 2014 and to restore the same to its original filed. However, after filing the present misc. application neither the parties entered appearance nor the applicant filed any affidavit-of-service showing service upon the defendants.
2. In the Miscellaneous Application, Applicant stated that –
(i) The instant Misc. application arises out of an application filed by the Applicant under Section 17(1) of the SARFAESI Act being SA No. 1213 of 2014 thereby praying for quashing and/or setting aside the purported notice under Section 13(2) dated January 06, 2014 and for restraining the Defendant No 2 by an order of injunction from giving any effect or further effect and from taking any steps or further steps pursuant to the notice under Section 13(2) dated January 06, 2014 and 13(4) of the SARFAESI Act and for other incidental reliefs.
2MA/12/2019 – DRT-2/Kol
(ii) The Applicant states that the above said misc. application was filed in the year 2014 and thereafter it came up for hearing on October 24, 2014 before the Ld. Registrar and upon hearing the Ld. Advocate for the Applicants and perusing the materials on record the Ld. Registrar was pleased to place the record before the Ld. Presiding Officer, inter alia, fixing September 03, 2015 for hearing. However on the said date i.e. September 03, 2015 as the Ld. Presiding Officer was not sitting the matter was adjourned till May 16, 2016. Thereafter the matter was adjourned on various dates on January 06, 2017, July 13, 2017 and lastly on February 01, 2018. On the said dates the Ld. Advocate for the Applicants attended but as there was no Bench the Ld. Advocate could not file the affidavit-of-service showing service upon the Defendants.
(iii) The Applicant states that on July 23, 2018 the matter came up for hearing before the Ld. Tribunal when due to certain personal inconvenience of the Ld. Advocate appearing on behalf of the applicants, he could not reach within time when the matter was called for. As none appeared the matter was suo motu adjourned and last chance was granted to file the affidavit-of-service on the next date i.e. January 22, 2019, failing which the matter would be decided on merits.
(iv) That on January 22, 2019 the matter was fixed for filing of affidavit-of-service. However on 19<sup>th</sup> January, 2019 the father of the junior advocate of the Advocate on Record met fatal road accident and was admitted in hospital and had got severe head injury. In the circumstances as none appeared on behalf of the Applicants in support of the said application, the same was dismissed for default on January 22, 2019.
(v) The Applicants state and submits that there has been no laches and/or negligence on the part of the applicants in pursuing the matter or in conducting the proceeding. It is submitted that the instant application for restoration has been preferred within the statutory period of thirty days. The Applicants state that there is sufficient cause for recalling and setting aside the order. Non-appearance in the application has not been occasioned deliberately or on account of any culpable negligence but has been occasioned on the basis of circumstances beyond the control of the applicants.
3. In the instant case the Misc. Applicant never appeared. However, on 2<sup>nd</sup> January, 2020 Ld. Counsel for the Respondent Bank appeared and undertakes to file vakalatnama on the next date of hearing. On the said date the Ld. Tribunal directed the Respondent Bank to file objection to the Misc. Application within twenty one days under prior service of the copy upon the Misc. Applicant and the matter was posted to 05.03.2020. Thereafter as none appeared on behalf of either of the parties, the matter was reserved for orders vide order dated 05.03.2020.
4. I have gone through the pleadings and pass the following order :-
O R D E R
(i) In the instant case the Misc. Applicant filed the SARFAESI application on 24<sup>th</sup> October, 2014. Thereafter as none appeared on behalf of either of the parties the SARFAESI application was dismissed by this Ld. Tribunal vide order dated 22.01.2019.
(ii) Thereafter, aggrieved by the said order of dismissal, the Sarfaesi Applicant filed the present MA being MA/12 of 2019 on 07.03.2019 for recalling the order of dismissal.
(iii) In the instant case the Misc. Applicant neither appeared nor contested the matter. Accordingly the Tribunal vide order dated 05.03.2020 reserve the matter for passing final order. Upon going through the records the present Sarfaesi Application is dismissed for non-prosecution.
(iv) On perusal of the order dt. 22.01.2019, as none appeared for the Applicant on 23.07.2018 the matter was posted to 22.01.2019 for compliance of the Tribunal's order, despite the same the Applicant have not complied. Accordingly the matter i.e. SA No. 1213 of 2014 was dismissed on merits. Though 3MA/12/2019 - DRT-2/Kol the instant MA has been filed, none appeared for the Misc. Applicant on 25.11.2019, matter was adjourned to 02.01.2020, again none appeared for the Misc. Applicant, again matter was posted for hearing to 05.03.2020. None appeared for the Misc. Applicant when the matter was called, accordingly the matter was passed over and recalled at the end of board, none appeared, hence the MA was reserved for orders on 05.03.2020. But the Misc. Applicant has neither appeared nor filed any application for recall of the order dated 05.03.2020 till today.
This Tribunal is of the opinion that there are no merits for considering the application, hence the instant MA is liable to be dismissed.
The MA being MA/12 of 2019 (arising out of SA /1213 of 2014) stands dismissed. All I.A.s if any are also stand disposed of. No order as to costs.
File be consigned to Record Room.
This order is dictated and corrected by the undersigned and pronounced on this the 22<sup>nd</sup> day of July 2022. None appeared for either of the parties.
Copy of the Order be uploaded in the Tribunal's Website.
Sd/-
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(M.S. Rao) Presiding Officer DRT-2 Kolkata
Sd