UJAM AND ORS vs INDIAN OVERSEAS BANK on 9 October 2023

**JUDGMENT**

1. 1. The present Miscellaneous Application is filed by the Applicants seeking restoration of SA No. 614/2019 by quashing and setting aside the order dated 27/07/2023 passed by this Tribunal. The Respondent Bank has filed reply to the Misc. Application along with Delay condonation application as Ex.R/7 and Ex.R/8, respectively.

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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 came to know about the order dated 27/07/2023 passed by this Tribunal in SA No.614/2019 only when the Bank officers came to the subject premises and forcibly vacated the premises on 05/09/2023 as the concerned Advocate did not inform the Applicants about dismissal of the said SA. He further submitted that there is a delay of 16 days in preferring Miscellaneous Application for restoration of the said SA. He further submitted that the Respondent was not aware about what legal remedy is available to him and it took some time in obtaining legal advice for taking appropriate action in the matter. The delay in preferring Miscellaneous Application for Restoration is unintentional and may please be condoned in the interest of justice.

3. 4. Ld. Counsel for the Applicants further submitted that the Applicants had filed SA No.614/2019 before this Tribunal u/s 17 of the SARFAESI Act challenging measures initiated by the Respondent Bank. He further submitted that the Applicants were not aware of the date of the proceedings, especially in view of the fact that the Applicant was being represented through an Advocate for espousing the cause of the application, however, the Applicants did not inform about the date of hearing. It is further submitted that the Applicants was last informed about the order dated 22.08.2022 when the Advocate of the Applicant informed about the stay order granted by this Hon'ble Tribunal on taking over the physical possession of the subject premises.

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1. 5. It is further submitted that the Applicants used to inquire with the Advocate concerned and the Advocate assured that there was nothing to worry and the proceedings were at the same stage and the presence of the Applicants were not required.

2. 6. It is further submitted that the Applicants came to know about the dismissal of the proceedings when the officers of the Respondent Bank came to the subject premises and forcibly vacated the premises on 05.09.2023. The Applicants further submitted that the officials from the Respondent Bank did not issue any notice with regard to taking over the possession and forcibly took over the possession of the subject premises and it was only then the Applicants came to know about the proceedings being dismissed for default.

3. 7. It is further submitted that thereafter, the Applicants tried to inquire with the Advocate, but there was no response from the Advocate and the Applicants also tried to inquire with the Advocate about the reason for the absence of the Advocate on different dates as is reflected in the order which is also not intimated to the Applicants by the concerned Advocate. It is further stated that there was no cooperation from the Advocate about the status and proceedings, the Applicants were compelled to approach another Advocate, through whom the present Restoration Application is being filed seeking restoration of the SA.

4. 8. 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 /

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facts and circumstances stated above, the litigants should not suffer due to fault of their Advocate. It is further submitted that 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 27/07/2023 in the interest of justice and to restore the said SA.

1. 9. Per contra, Ld. Counsel for the Respondent Bank and submitted that the Applicants were required to file Misc. Application for restoration within 30 days from the date of order of dismissal of Securitization Application, as such, there is a delay of 16 days in filing the present Misc. Application. It is further submitted that since this Tribunal has no jurisdiction to condone the delay in filing a Securitization Application, as such, this Tribunal is also not having jurisdiction to condone the delay in filing the Misc. Application for restoration of the said Securitization Application.

2. 10. She further submitted that since the Respondent Bank has taken the physical possession of the property in question, which is a subsequent measure under the SARFAESI Act, 2002, the present application for restoration of the Securitization Application is not maintainable, as the Applicants should have filed fresh Securitization Application.

3. 11. She further submitted that the Applicants did not bother to approach the Respondent Bank and/or this Tribunal and as such, cannot shift the burden on their Advocate of not being informed to the Applicants, when the Applicants were not vigilant and did not make any efforts to approach this Tribunal with appropriate application within time. She /

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further relied upon the judgment passed in the Hon'ble High Court of Madras in the case of Velar Engineering Works Pvt. Ltd., V/s. The Authorised Officer/Chief Manager, Indian Bank, Kanchipuram&Ors., and submitted that the present Misc. Application for the restoration of the Securitization Application along with delay should be dismissed.

1. 12. Considering the submissions of Ld. Counsel for the Applicants and perusing the order dated 27/07/2023 passed by this Tribunal, it appears that SA No.614/2019 was dismissed for default on account of non-appearance of Ld. Counsel for the Applicants and the delay caused in filing the present Misc. Application for restoration of the Securitization Application is meager. The reason assigned by the Applicants that time was taken to obtain relevant response and co-operation from the earlier Advocate and seeking further legal advice to approach another Advocate, which seems to be reasonable and genuine.

2. 13. 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,*

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*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."*

14. 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** reported in **MANU/SC/0023/1983**.

*"34. From the case law referred to above, it is clear that this Court has always insisted advocates to appear and argue the case as and when it is called out for hearing. Failure to do so would be unfair to the client and discourteous to the Court and must be severely discountenanced. At the same time, the Court has also emphasized doing justice to the cause wherein it is appropriate that both the parties are present before the Court and they are heard. It has been noted by the Court that once a party engages a counsel, he thinks that his advocate will appear when the case will be taken up for hearing and the Court calls upon the counsel to make submissions. It is keeping in view these principles that the Court does not proceed to hear the matter in absence of the counsel.*

*35. In the circumstances, in our opinion, the submission of the learned counsel for the appellants has substance that the High Court ought not to have decided the appeal in absence of the appellants' counsel."*

The said observations and principles squarely apply to the facts of the present case.

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15. 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

- • Delay of 16 days caused in filing Miscellaneous Application vide Diary No.1639/2023 (for delay)) is hereby condoned.

- • Miscellaneous Application No.37/2023 (for restoration) is hereby allowed with no order as to cost.

- • Order dated 27/07/2023 passed by this Tribunal in SA No.614/2019 is hereby quashed and set aside.

- • Securitisation Application No.614/2019 filed by the Applicants be restored to its original number.

- • Registry is directed to list the matter for hearing on 19/10/2023.

File be consigned to records.

Pronounced in open Court on 9^th of October, 2023.

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