NARESH RAMTIRTH YADAV vs PUNJAB NATIONAL BANK on 17 November 2023

**JUDGMENT**

1. 1. The present Miscellaneous Application is filed by the Applicant seeking restoration of SA No.226/2022 by quashing and setting aside the order dated 18.03.2022 passed by this Tribunal. Respondent Bank has filed its reply at Ex.R/ 7.

2. 2. Heard Ld. Counsel for the parties and perused the documents placed on record.

3. 3. Ld. Counsel for the Applicant submitted that the Applicant had filed SA No.226/2022 before this Tribunal u/s 17 of the SARFAESI Act challenging measures initiated by the Respondent Bank. She further submitted that the Applicant was 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 Applicant was not informed about the date of hearing. It is further submitted that the Applicant was last informed about the order dated 24.06.2023 when the Advocate of the Applicant sought time to file rejoinder. Thereafter, the Advocate appearing on behalf of the Applicant tried to contact the Applicant to seek instructions to prepare rejoinder; however since the Applicant had gone to his native place and stayed there for a long time due to some medical issues, the Advocate on record could not contact the Applicant.

1. 4. It is further submitted that the Applicant came to know about the dismissal of the proceedings when the Ld. Mamlatdar issued notice dated 10.03.2023 for taking the physical possession of the property in question on 01.04.2023 under Section 14 of the SARFAESI Act, 2002. Thereafter, the Respondent Bank has taken the physical possession of the property in question and also proceeded with sale of the said property in question, without serving any documents upon the Applicant. Hence, the Applicant immediately contacted his Advocate and tried to inquire with the Advocate about the reason for the absence on different dates as is reflected in the orders passed by this Tribunal, that is when the Applicant came to know that on 28.12.2022, Applicant's Advocate had filed retirement purshis, on the basis of which, this Tribunal has passed order for dismissal of the SA on non-prosecution. As such, the Applicant was compelled to approach another Advocate, through whom the present Restoration Application is being filed seeking restoration of the SA.

2. 5. Ld. Counsel for the Applicant 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 Applicant in the said matter. She further submitted that in view of the facts and circumstances stated above, the litigants should not suffer due to fault of their Advocate. It is further submitted that the Applicant has a strong case and they are likely to succeed in the SA. Hence, Ld. Counsel for the Applicant requested to quash and set aside the order dated 18.03.2023 in the interest of justice and to restore the said SA.

3. 6. Per contra, Ld. Counsel for the Respondent Bank has filed reply to the Misc. Application and submitted that the Applicant has failed to appeared in the matter before the Registrar on its respective dates of adjournments and accordingly, on 28.12.2022, Applicant's Advocate had filed retirement purshis, on the basis of which, this Tribunal has passed order for dismissal of the SA on non-prosecution. It is submitted that this Tribunal has given ample opportunities to the Applicant for appearance, but Applicant himself chose not to appear before this Tribunal, since there was no representation on behalf of the

Applicant before the Ld. Registrar as well as this Tribunal on its respective dates.

1. 7. He 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 and in the absence of cogent grounds and reasons, the present application is required to be rejected forthwith.

2. 8. Considering the submissions of Ld. Counsel for the Applicant and perusing the order dated 18.03.2023 passed by this Tribunal, it appears that SA No.226/2022 was dismissed for default on account of non-appearance of the Applicant.

In this regard, this Tribunal is relying upon the 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. 9. 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.

1. 10. In view of the aforesaid discussion, this Tribunal is of the opinion that in the interest of justice, the Applicant is required to be given sufficient opportunity to put forward his case on merits by restoring the SA. Hence, I pass the following order:

ORDER

1. i) The present Miscellaneous Application is hereby allowed with no order as to cost.

2. ii) Order dated 18.03.2023 passed by this Tribunal in SA No.226/2022 is hereby quashed and set aside.

3. iii) Registry is directed to restore the Securitisation Application No.226/2022 filed by the Applicant to its original number.

4. iv) File be consigned to records.

Pronounced in open Court on this the 17^th day of November, 2023 at Ahmedabad.

(LAXMAN MADNANI) PRESIDING OFFICER, DRT-II, AHMEDABAD