Debts Recovery Tribunals and Appellate Tribunals
UCO BANK vs Digbijoy Bhattacharjee on 14 June 2019
**DEBTS RECOVERY TRIBUNAL-2, KOLKATA**
**Jeevan Sudha Bldg. 7th Floor, 42/C J.L.Nehru Road, Kolkata-700071**
**Before Shri Makena Srinivasa Rao, Presiding Officer**
**MA No. : 32/2014**
**(Arising out of OA : 385/2008)**
**In the matter of** -
UCO Bank, a body corporate constituted under the Banking Companies( Acquisition and Transfer of Undertakings) Act, 1970 having its Registered Office at 10, B.T.M. Sarani(Brabourne Road,) Kolkata-700001 and carrying on business inter alia through its branch office at 40/10, Ballygunge Circular Road, Kolkata-700019 commonly known as its Ballygunge Circular Branch.
.....Applicant
**Versus**
1. 1. Mr. Digbijoy Bhattacharjee, partner of M/s Lokenath Enterprise, son of Jyotish Bhattacharjee, carrying on business under the name and style of Lokenath Enterprise at 1087, Pasupati Bhattacharjee Road, Kolkata-700034
2. 2. Mr. Debraj Bhattacharjee, partner of M/s Lokenath Enterprise, son of Jyotish Bhattacharjee, carrying on business under the name and style of Lokenath Enterprise at 1087(H45), Pasupati Bhattacharjee Road, Kolkata-700034
.....Defendants
**Present:**
For Applicant Bank : Shri S. Basak, Learned Counsel For Defendants : None **Date of Order** : 14.06.2019
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**FINAL ORDER**
**(Delivered On 14<sup>th</sup> June,2019)**
1. 1. Misc. Applicant, UCO Bank, filed the present Misc. Application being No. 32/2014 arising out of O.A./385/2008 on 04.09.2014, praying for recall of the Tribunal's order dated 06.08.2014 in O.A./385/2008 and restoration of the O.A. being No. 385/2008 to its original file.
2. 2. The Misc. Applicant, UCO Bank filed the Original Application being No. 385/2008 on 22.09.2008 under Section 19 of RDDBFI Act, against two Defendants, praying for issuance of Recovery Certificate for a sum of Rs. 10,39,201/- as on 28.02.2007 and further interest @ 13% p.a. with monthly rest from 01.03.2005.
*N. P. R.*
22,
3. The Defendants have been served by post vide order of the Learned Registrar dated 12.06.2009. The matter was taken up for hearing by the Tribunal on 30.03.2012 when none of the parties was present. Thereafter the matter was taken up for hearing by the Tribunal on 13.06.2013 when none of the parties was present. The matter was taken up for hearing on 06.08.2014 when none of the parties was present. The Tribunal dismissed the O.A. for non-prosecution vide order dated 06.08.2014, recording its observation that *"It appears from the records that in previous occasions, namely, 30/03/12 and 13/06/13, none was present for the applicant. Since the applicant bank was continuously remained absent, the instant O.A. no. 385/2008 is dismissed for non-prosecution"* Being aggrieved by the Tribunal's order dated 06.08.2014, the Applicant Bank has filed the present Misc. Application being No. 32/2014.
4. In brief, the case of the Misc. Applicant is that,
(i) The Applicant Bank engaged Shri S.M. Roy, Advocate to conduct the O.A/32/2014. The Applicant Bank depanelled Shri S.M. Roy, Advocate from the Applicant Bank for his negligence in conducting the matter and engaged another Advocate, Shri S. Basak and handed over the papers and documents to him to conduct the case. The Learned Advocate had the knowledge that the O.A. was listed for hearing on 06.08.2014 but on 06.08.2014 Learned Advocate became bed ridden due to sudden illness and failed to conduct the matter on 06.08.2014. The Tribunal vide order dated 06.08.2014 dismissed the O.A. being No. 385/2008 for non-prosecution.
(ii) The main contention of the Misc. Applicant is that they have suffered due to latches of the Advocate engaged by the Applicant Bank and contended that the non-appearance of the Misc. Applicant on the dates listed before the Tribunal was unintentional and the Applicant Bank should not suffer due to latches on the part of the Advocates engaged by the Misc. Applicant. Hence, the Misc. Applicant has prayed for condoning the latches on the part of the Misc. Applicant, allow the present MA and restore the O.A. to its original number and file.
5. There is nothing on record in the MA records that the Misc. Applicant has served notice upon the Defendants. The MA was taken up for hearing on 07.03.2019. None was present for the Defendants. Learned Counsel for Misc. Applicant argued the matter and the matter has been reserved for order.
6. Heard the Learned Counsel for Misc. Applicant and perused the case records. In spite of non-filing of affidavit of service by the Misc. Applicant upon the Defendants, the matter is taken up for disposal as the matter is pending since 2014 and the matter should not be kept pending for disposal any further. The observation and finding of the Tribunal are as under:
232
(i) The O.A./385/2008 was filed on 22.09.2008 and first effective hearing in the O.A. was held before the Tribunal on 30.03.2012 i.e. after lapse of more than two and half years. Thereafter, effective hearing in the O.A. was held on 13.06.2013 after lapse of long period. Thereafter, effective hearing was held on 06.08.2014 i.e. after lapse of one year and the O.A. was dismissed for non-prosecution. It appears that the hearing in the O.A./385/2008 was held after lapse of considerable time. Hence, non-appearance of the parties in the matter could be due to conducting the hearing after lapse of considerable time.
(ii) The Misc. Applicant filed the O.A. being No. 385/2008 against two Defendants for recovery of Rs. 10,39,201/- as on 28.02.2007 and further interest @ 13% p.a. with monthly rest from 01.03.2005. The Applicant Bank has pleaded in the O.A. that the loan was secured by creation of mortgage by Defendant Nos. 1 and 2 in respect of the immovable properties as described in Schedule of the O.A. The Defendants failed to repay the dues of the Applicant and hence, the Applicant Bank has filed the present O.A. for recovery of their dues. The Applicant Bank has annexed statement of account to prove the dues recoverable from the Defendants. The Defendants acknowledged the debts and confirmed the debit balance in the cash credit account by execution of balance confirmation letter on 31.01.2007 and 31.01.2008.
(iii) The financial assistance enjoyed by the Defendants from the Applicant Bank is nothing but public money and the Defendants are liable to pay the correct dues of the Applicant Bank. The Defendants cannot escape the debt liability arising out of non-payment of the dues of the Applicant Bank. The mortgage created by the Defendants in respect of their immovable properties, as pleaded by the Applicant Bank in the O.A., cannot be discharged in absence of Tribunal's order to that effect or payment of the dues of the Applicant Bank and accordingly, the mortgage created upon the properties shall continue.
(iv) The Misc. Applicant has pleaded in the MA that they have suffered because of latches on the part of the Advocates they engaged to conduct the O.A. matter. Hence, the Misc. Applicant should not suffer for the latches committed by the Advocates engaged by the Applicant Bank in the O.A. matter. The Tribunal is in agreement with the contention of the Misc. Applicant for seeking recall of the order dated 06.08.2014. The grounds taken by the Misc. Applicant for recall of the Tribunal's order dated 06.08.2014 are sufficient. There is no issue of condonation of delay in filing the present MA. The Misc. Applicant has filed the present MA on 04.09.2014 i.e. well before expiry of thirty days from the date of Tribunal's order dated 06.08.2014. The bona fide of the Misc. Applicant for pursuing the O.A. is observed by the Tribunal.
M. S. M.
= 42
7. In view of above observation and finding, the prayer made by the Misc. Applicant in the Misc. Application being No. 32/2014 for recall of the Tribunal's order dated 06.08.2014 and restoration of the O.A./385/2008 deserves to be allowed, hence allowed.
8. The following order is passed :
(i) Misc. Application being No. 32/2008 arising out of O.A./385/2008 is allowed subject to payment of cost of Rs. 10,000/- (Rupees ten thousand only) to be paid to the Prime Minister's Relief Fund.
(ii) The O.A. being no. 385/2008 is restored to its original number and file.
(iii) The Applicant Bank shall take steps for service of the notice in respect of the O.A. proceedings being No. 385/2008 upon the Defendants before the Learned Registrar.
(iv) The Applicant Bank shall submit proof of the payment of cost before the Learned Registrar.
(v) The Applicant Bank is directed to complete the pleadings within sixty days from the date of this order.
(vi) The MA/32/2014 is accordingly disposed of Order pronounced in open Tribunal on this 14<sup>th</sup> June, 2019.
Copy of the order be given to the parties.
The Misc. Applicant shall serve the copy of the order upon the Defendants and file service report before the Learned Registrar.
(M.S. Rao) 14-06-2019.
Presiding Officer Kolkata DRT No. 2