Dinesh Kumar vs STATE BANK OF INDIA on 14 June 2019

**FINAL ORDER**

**(Delivered on 14^th June, 2019)**

1. The Applicants filed the present MA being No. 20/2015 arising out of O.A./462/2009 on 16.10.2015 under Section 22(g) of the RDDBFI Act, 1993 against the Respondent Bank, State Bank of India, taking limitation/cause of action from the date of receipt of the judgment on 08.10.2015 passed by the Tribunal on 24.09.2015 in O.A./462/2009.

The present Misc. Application has been verified on affidavit by Applicant No. 1, representing his wife, the Applicant No. 2 and the Applicant No. 3 being constituted attorney of the Applicant No. 3.

2. The brief facts of the Applicants' case are that :

(i) The Applicants upon receipt of the summons in O.A./462/2009 engaged their Advocates. Shri Parag Mukherhee, Advocate and Shri Santanu Mukherjee, Advocate appeared for Defendant Nos. 1 and 4. Since the proceedings in the matter were not informed to the Applicants, the Applicants engaged another Advocate, Shri Kamal Chakraborty. The Applicants thereafter engaged Shri R.S. Tiwari, Advocate for conducting the matter who came to know that none of the earlier Advocates collected the copy of the O.A. The matter was heard ex parte.

(ii) The Applicants could not file written statement for latches on the part of the earlier Advocates. The Applicants have very good case if the ex parte order dated 24.09.2015 is recalled and the O.A. is restored.

(iii) The Applicants have prayed for setting aside the ex parte judgment dated 24.09.2015 in O.A./462/2009.

3. The Respondent Bank has filed objection to the MA being No. 20/2015. The Respondent Bank has mainly contended that the Misc. Application is devoid of merit, the Applicants appeared in the O.A. proceedings being No. 462/2009 through Advocates, filed Vakalatnama. The Applicants conducted the O.A. proceedings very casually and preferred not to file written statement inspite of opportunities given by the Tribunal. For non-appearance of the Applicants, the Applicants were set ex parte vide Tribunal's order dated 24.08.2015. The Tribunal passed judgment in the O.A./462/2009 on 24.09.2015 and disposed of the said O.A. The Tribunal has issued Recovery Certificate being No 59/2015 and the RC proceedings are going on.

4. Heard the parties in the matter and gone through the O.A. records and the pleadings made by the Misc. Applicant in MA/20/2015 and the objections filed by the Respondent Bank to the MA/20/2015. The observations and finding of the Tribunal are as under:

(i) The Applicant Bank filed the O.A. being No. 462/2009 under Section 19 of the RDBFI Act on 20.07.2009 against four Defendants, praying for issuance of recovery certificate for a sum of Rs. 1,94,11,821=93 as on 30.06.2009 and further interest.

(ii) The Tribunal issued summons to the Defendants for appearance to be served by post and hand delivery. The Defendants envelope containing the summons have been returned unserved upon the Defendant No. 1, 2 and 3 with postal remark "*Left without address*"

The Applicant Bank has filed affidavit of service on 01.03.2012 disclosing that the office address of the Defendant No. 1 was locked and the respective address of the Defendant Nos. 2 to 4 was also locked. During the course of hearing in the O.A./462/2015, Shri Parag Mukherjee, Advocate appeared for the Defendant No. 4, Shri Ramhari Mondal, partner/Guarantor of M/s Eastern Sea Food and filed Vakalatnama on 09.07.2010. Shri Pradip Bose, Advocate appeared for Defendant No. 3, Smt Babita Rai, partner/guarantor of M/s Eastern Sea food, who is the wife of Defendant No. 2, Shri Dinesh Kumar Rai, partner/guarantor of M/s Eastern Sea Food and filed Vakalatnama on 16.07.2010. Shri Santanu Mukherjee, Advocate appeared for Defendant No. 1, M/s Eastern Sea Food, a partnership firm and filed Vakalatnama on 16.07.2010. Hence, all the Defendants have been served. There is no scope of raising of issue of non-service of summons upon the Defendants.

(ii) The O.A. was taken up for hearing on 10.05.2012. None was present for the Defendants. The Defendants were allowed by the Tribunal thirty days time to file written statement vide order dated 10.05.2012. The matter was taken up for hearing on 21.08.2014. None was present for the Defendants. Last opportunity was allowed by the Tribunal to file written statement within forty five days. The matter was taken up for hearing on 24.08.2015. None was present for the Defendants. No written statement was filed by the Defendants inspite of opportunities given by the Tribunal. The Defendants have been set ex parte vide Tribunal's order dated 24.08.2015 and the matter was reserved for order. The Tribunal passed judgment in O.A./462/2009 vide final order dated 24.09.2915. The perusal of the O.A. proceedings, it clearly reflects the conduct of the Defendants they preferred not to put appearance in the proceedings, file written statement and contest the matter. The Tribunal after giving sufficient opportunities to the Defendants to contest the case, has rightly passed the judgment on 24.08.2015. There is no irregularities/illegalities in the judgment passed by the Tribunal on 24.08.2015.

(iii) The contention of the Misc. Applicants that they could not file written statement for the latches on the part of the Advocates engaged prior to engagement of Shri R.S. Tiwari, Advocate is not the sufficient ground for inviting judicial consideration for recall of the judgment dated 24.08.2015. Engagement of Advocate one after another by the Defendants to conduct the O.A. proceedings or their latches to conduct the O.A. proceedings or to file the written statement is the interse matter of the Defendants and their Advocates. There is no sufficient ground submitted by the Defendants for non-filing of the written statement or contest the matter. There is no scope of raising any issue of not giving opportunities to the Defendants to file written statement. Hence, the main contentions of the Misc. Applicants do not hold any merit to invite judicial consideration and are liable to be declined.

5. Pursuant to the judgment dated 24.08.2015 passed by the Tribunal, the Tribunal has issued Recovery Certificate being No. 59/2015 and the recovery proceedings are going on. The Defendants in the O.A./462/2015 are the certificate debtors in RC/59/2015. The Defendants have not filed Appeal before the Appellate Authority being aggrieved by the judgment dated 24.08.2015 nor have filed Review Application before the Tribunal in case there is any error apparent in the judgment dated 24.08.2015. There is no existence of the O.A./462/2015 which has been disposed of vide judgment dated 24.08.2015. The Misc. Applicant has filed the present Misc. Application in a disposed of O.A. Hence, there is an issue of maintainability of the MA being No. 20/2015 whether the Misc. Applicant can file such Misc. Application under Section 22(g) of the Act for setting aside the judgment/final order dated 24.08.2015 in O.A./462/2015 instead of invoking Section 20 of the Act or Rule 5A of DRT(Procedure) Rules if the Misc. Applicant is aggrieved M.A.M.

by the final order dated 24.08.2015. The Tribunal is of the view that such type of Misc. Application under Section 22(g) of the RDDBF1 Act filed in a disposed of O.A. suffers from the issue of maintainability.

6. The Misc. Applicant on affidavit has disclosed that he is the constituted attorney of Misc. Applicant No. 3, Shri Ramhari Mondal, partner of M/s Eastern Sea Food and accordingly represents the Misc. Applicant No. 3. The Misc. Application is not supported by the copy of power of attorney executed by the Misc. Applicant No. 3 in favour of the Misc. Applicant No. 1, Shri Dinesh Kumar Rai, giving authority to the Misc. Applicant No. 1 to represent the Misc. Applicant No. 3. M/s Eastern Sea Food is a partnership firm, represented by all the partners. The declaration of the Misc. Applicant holding power of attorney for and on behalf of the Misc. Applicant No. 3 suffers for lack of documentary evidence. Hence, the Misc. Application being No. 20/2015 suffers from the point of maintainability.

7. In view of abovesaid observation and finding, the Tribunal finds that the Misc. Applicants have failed to raise sufficient ground to invoke Section 22(g) of the RDDBF1 Act in filing the present Misc. Application being No. 20/2015 in the disposed of O.A./462/2009. The Tribunal declines to intervene in the judgment dated 24.08.2015 passed by the Tribunal in O.A./462/2015 and the RC proceedings being No. 59/2015. The Misc. Application being No. 20/2015 is liable to be dismissed having no merit, suffering from the point of maintainability.

8. The following order is passed :

1. (1) Prayer made by the Misc. Applicants in the MA/20/2015 for setting aside the judgment dated 24.09.2015 in O.A./462/2015 is declined.

2. (2) Prayer made by the Misc. Applicants for stay of the issuance of recovery certificate is declined.

3. (3) The Misc. Application being No. 20/2015 arising out of O.A./462/2009 is liable to be dismissed, hence dismissed with no order as to cost.

Order pronounced in open Tribunal on this 14^th June, 2019

Copy of the order be given to the parties.

Copy of the order be sent to the Learned Recovery Officer.

File be consigned to Record Room.

*M. S. Rao* (M.S. Rao)

Presiding Officer Kolkata DRT No. 2

14-06-2019.