Krishna Education Society vs ICICI BANK LIMITED on 6 August 2022

JUDGMENT

(Delivered on 06th August, 2022)

1. This is an application filed by applicants/original defendants of Original Application No.145/2020 for condonation of delay of 201 days in filing an application for setting aside ex-parte order passed in aforementioned Original Application. The facts in the application can be summarized as under:

2. The opponent/original applicant Bank had filed Recovery

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Suit bearing No.O.A. No.145/2010 against the present applicants/original defendants for recovery of loan. Since present applicants/original defendants failed to appear despite service of summons, Application proceeding proceeded further ex-parte and ex-parte order and Judgment has been passed on 29th March, 2011. Thereafter, the present applicants/original defendants filed Miscellaneous Application dated 14.11.2011 for setting aside an ex-parte final Order and Judgment passed in OA No.145/2010.

3. The delay of 201 days’ took place in filing the said Miscellaneous Application for setting aside ex-parte Order passed in OA No.145/2010 on the grounds that when ex- parte hearing and Order was passed on 29.03.2011, father of Director of Applicant’s Society who is authorized to look after daily business of Society was hospitalized from 22.03.2011 to 23.04.2011. Thereafter, necessary documents of Original Application No.145/2010 were handed over to Advocate Dattatray Mohite who passed much period for studying the documents and thereafter, he directed the applicants to obtain the certified copies of impugned Order

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passed in Original Application No.145/2010. Thereafter, though certified copies of relevant documents were given to concerned Advocate, he kept those documents in his custody for long period and at last, directed the applicants to engage another Advocate for filing present proceeding in this Tribunal. Therefore, delay of 201 days took place in filing Application for setting aside ex-parte Order passed in Original Application No.145/2010. Therefore, the applicants pray for allowing the present Application.

4. The opponent No.1 original Applicant Bank by filing reply (Exhibit-11) resisted the Application mainly on the ground that this Application has been filed to prolong the matter pending before Recovery Officer of this Tribunal. Further, there are no cogent reasons to explain the delay which is caused in filing Application for setting aside ex-parte Order passed in Original Application No.145/2010 is unintentional and inordinate. Therefore, the application may be rejected.

5. I have heard arguments of both parties.

6. Perused the record and Written Arguments of Opponent

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No.1 Bank and the authorities produced by the applicants. The applicants have produced Medical Certificate of Mr. Jaykar Patil, authorized signatory of the applicant Society and Affidavit of Advocate Dattatray Mohite which substantiate the case of the applicants. One of the grounds for causing delay in filing Application for setting aside ex- parte Order in Original Application No.145/2010 is that mistake committed by the Advocate. At this juncture, it is to be noted that client should not suffer for mistake of his Advocate. Further,

Order

passed in Original Application NO.145/2010 is an ex-parte Order. Thus, it was not decided on merits. I mention that after all, justice can be done only when the matter is fought on merits and in accordance with law rather than disposing it on such technicalities and that too at the threshold. Therefore, if delay in filing Application for setting side ex-parte Order passed in Original Application No.145/2010 is condoned, no prejudice would be caused to the Opponent Bank as it would get an opportunity to contest it on merits. That apart, the grounds mentioned in the Application

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are suffice to condone the delay. Therefore, Application deserves to be allowed.

7. Hence, I pass the following order:-

ORDER

(A) Miscellaneous Application No.73/2011 is allowed. (B) Delay of 201 (Two Hundred and One) days in filing an Miscellaneous Application for setting aside ex-parte

Order

passed in Original Application No.145/2010 is hereby condoned subject to cost of Rs.25,000/- (Rupees Twenty-Five Thousand only) to be paid to `Chief Minister’s Relief Fund, Maharashtra’ within two weeks from today. (C) After payment of cost, the Miscellaneous Application for setting aside an ex-parte Order passed in Original Application No.145/2010 be registered. (D) Pronounced in open Court.

Place : Pune Date : 06.08.2022 Sd/- (Dilip G Murumkar) Presiding Officer Debts Recovery Tribunal, Pune