Debts Recovery Tribunals and Appellate Tribunals
MR RAJENDRA K AJMERI vs CANARA BANK (SYNDICATE BANK) on 20 April 2023
**IN THE DEBTS RECOVERY TRIBUNAL-II AT AHMEDABAD**
**Present: Laxman Madnani, Presiding Officer**
**MISCELLANEOUS APPLICATION NO.28 OF 2022**
**IN**
**SECURITISATION APPLICATION No.224 OF 2021**
Date of Judgment : 20/04/2023
1. Mr. Rajendra K. Ajmeri,
37, Shifa Park,
Salatiya Road,
Anand – 388001
2. Mrs. Sejalben R. Ajmeri
37, Shifa Park,
Salatiya Road,
Anand – 388001
..... Applicants
**Versus**
1. Canara Bank,
Anand Branch,
Anand
2. Mr. Rajjakbhai S. Mansuri,
17, Anand Society,
100 Feet Road,
Near Noor-E-Mohammadi Masjid,
Anand – 388001
..... Respondents
**Present:** Ld. Counsel Mr. Kapil Jha for the Applicants Ld. Counsel Mr. Urvesh Gor for Respondent No.1 Bank None present on behalf of Respondent No.2
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**JUDGMENT**
1. The present Miscellaneous Application is filed by the Applicants seeking restoration of SA No.224/2021 by quashing and setting aside the order dated 02/07/2022 passed by this Tribunal. The Respondents have not filed any reply to the present application.
1. 2. I have heard Ld. Counsel for the parties and perused the documents placed on record.
2. 3. Ld. Counsel for the Applicants submitted that the Applicants had filed SA No.224/2021 before this Tribunal u/s 17 of the SARFAESI Act challenging measures initiated by the Respondent Bank. He further submitted that the Applicants' Advocate was out of Ahmedabad for a week between 24/06/2022 and 30/06/2022 and he had informed about his absence to Advocate of the Respondent Bank, but the Respondent's Advocate did not convey this information to this Tribunal. Ld. Counsel for the Applicants further submitted tht he had filed his Vakalatnama on 12/05/2022 and thereafter the matter was adjourned to 27/06/2022 for filing reply/rejoinder. Thereafter again the matter was adjourned to 02/07/2022. He further submitted that Advocate of the Applicants was in Surat before Ld. Counsel CJM, Surat on 02/07/2022. The Respondents deliberately suppressed the said information from this Tribunal and consequently, this Tribunal dismissed SA No.224/2021 on 02/07/2022 merely on the ground that none was present for the Applicants.
3. 4. Ld. Counsel for the Applicants submitted that this Tribunal has passed the order for dismissal of the said SA without entering into the merits of the matter and without considering the evidences filed by the Applicants in the said matter. He further submitted that in view of the facts and circumstances stated above, the litigant should not suffer due to fault of his Advocate. The Applicants have a strong case and they are likely to succeed in the SA. Hence, Ld. Counsel for the Applicants requested to quash and set aside the order dated 02/07/2022 in the interest of justice and to restore the said SA.
5. Ld. Counsel for the Applicants relied on the following judgments in support of his submissions:
- ➤ Prithwiraj Roy V/s. United Bank of India and others, MANU/GHH/0841/2019
- ➤ Lachi Tewari and others V/s. Director of Land Records and others, MANU/SC/0023/1983
6. Considering the submissions of Ld. Counsel for the Applicants and perusing the order dated 02/07/2022 passed by this Tribunal, it appears that SA No.224/2021 was dismissed for default on account of non-appearance of Ld. Counsel for the Applicants on that day. It is a settled legal position that a litigant should not be allowed to suffer on account of default on the part of his Advocate. In this context, it would be pertinent to note that the Hon'ble Apex Court has made following observations in the case of **Rafiq and another V/s. Munshi Lal and another, MANU/SC/0076/1981**:
*"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job."*
7. The aforesaid law has been followed and reiterated by the Hon'ble Apex Court in **Lachi Tewari's case (Supra)**, relied on by Ld.
Counsel for the Applicants. The said observations and principles squarely apply to the facts of the present case.
1. 8. In view of the aforesaid discussion, this Tribunal is of the opinion that in the interest of justice, the Applicants are required to be given sufficient opportunity to put forward their case on merits by restoring the SA. Hence, I pass the following order:
ORDER
- • The present Miscellaneous Application is hereby allowed with no order as to cost.
- • Order dated 02/07/2022 passed by this Tribunal in SA No.224/2021 is hereby quashed and set aside.
- • Securitisation Application No.224/2021 filed by the Applicants be restored to its original number.
File be consigned to records.
Pronounced in open Court on 20<sup>th</sup> day of April, 2023.
(LAXMAN MADNANI) Presiding Officer, DRT-II, Ahmedabad