M/s. Ishwar Shop Ltd. & Ors. vs State Bank of India & Ors. on 21 August 2023

**JUDGMENT**

1. 1. The present Miscellaneous Application is filed by the Applicants seeking restoration of SA No.109/2015 by quashing and setting aside the order dated 24/04/2023 passed by this Tribunal. The Respondent has filed reply to the present application and has denied the statements and averments made therein.

2. 2. I have heard Ld. Counsel for the parties and perused the documents placed on record.

3. 3. Ld. Counsel for the Applicants submitted that the Applicants had filed SA No.109/2015 before this Tribunal u/s 17 of the SARFAESI Act challenging measures initiated by the Respondent Bank. He further submitted that he remained present before this Tribunal on all the dates of listing except on 04/01/2023 on account of his personal difficulty. When the captioned matter i.e. SA 109/2015 was listed on 24/04/2023, he was present before this Tribunal in the first session. However, as two Writ Petitions being SCA No.18754/2011 and SCA No.18769/2011 were fixed for hearing at 2.30 p.m. before the Hon'ble High Court of Gujarat on 24/04/2023, he had to leave this Tribunal for attending matters before the Hon'ble High Court in post-lunch session. When this Tribunal took up the cases of "Pre-2017 Securitisation Applications" in post-lunch session, he could not remain present before this Tribunal to attend SA 109/2015. Therefore, the aforesaid order dated 24/04/2023 was passed by this Tribunal dismissing the Securitisation Application for want of prosecution. He further submitted that he could not attend this Tribunal in post-lunch sessions not due to any willful neglect. The Applicants want to pursue the aforesaid SA and are very much interested in pursuing the cause. The

Applicants have a very good case on merits. Therefore, he requested to restore the aforesaid SA to file.

1. 4. Considering the submissions of Ld. Counsel for the Applicants and perusing the order dated 24/04/2023 passed by this Tribunal, it appears that SA No.109/2015 was dismissed for default on account of non-appearance of Ld. Counsel for the Applicants on that day. The Applicants have also produced copy of the order dated 24/04/2023 passed by the Hon'ble High Court of Gujarat in SCA No.18754/2011 with SCA No.18769/2011, which reflects the presence of Ld. Counsel Mr. S.S. Jadeja before the Hon'ble High Court on that day. Therefore, the Applicants have shown sufficient cause for absence of their Advocate before this Tribunal in the post-lunch session on 24/04/2023.

2. 5. 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."*

1. 6. The aforesaid law has been followed and reiterated by the Hon'ble Apex Court in **Lachi Tewari and others V/s. Director of Land Records and others, MANU/SC/0023/1983**. The said observations and principles squarely apply to the facts of the present case.

2. 7. 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 24/04/2023 passed by this Tribunal in SA No.109/2015 is hereby quashed and set aside.

- • Securitisation Application No.109/2015 filed by the Applicants be restored to its original number.

File be consigned to records.

Pronounced in open Court on 21^st day of August, 2023.

(LAXMAN MADNANI) Presiding Officer, DRT-II, Ahmedabad

\*ykb\*