CANARA BANK vs GVRMP Dharwad Ramnagar Tollway Pvt Ltd Rep By Mr Garikapiti Venkateshwara Rao on 12 December 2023

: - O R D E R - :

The defendant no-3 in TA No-95/2022(old No OA No-131/2018) disposed by the Ld Predecessor on 21.4.2021 is sought to be set aside by the MA petitioner, who is the defendant No-3 in the original proceedings.

It is to be noted that the four applicant banks have filed the recovery proceedings against four defendants for recovery of Rs.158,15,00,236.14p and the said suit resulted in the final orders passed by the Ld Predecessor in OA No- 131/2018. The MA petition is filed on 13.9.2021.

The grounds urged are that the defendant No-3 was not aware of the proceedings and the final orders till the same was received by him on 13.8.2021. It is his case that no summons were served on him and the Tribunal placed him exparte on 19.3.2019. He submits that he has a strong case on merits and has been appearing in other OA i.e, OA No-106/2020 and the proceedings before the Ld NCLT which are all the matters related to these proceedings.

It is submitted that the non-appearance is neither intentional nor willful. This petitioner was only a technical member in the joint ventures of defendants 1 and 2 in the TA has no involvement in the commercial transactions of the other defendants with the banks. The non-service of the summons is the only cause by which he could not contest the matter. Additional affidavit is also filed which will be discussed in the course of this order. Counter is filed.

The respondents in this MA petition (applicant banks) have filed their counter affidavit. It is submitted that the final order was passed based on the counter filed by the defendants and the written arguments and the OA was allowed. It is also submitted that this petitioner had executed deed of guarantee dt 16.3.2021 in the event of default by the borrower. The present petitioner is fully aware of the proceedings and the recovery certificate is also issued. The defendants have not deposited the claim allowed. They pray for dismissal of the present proceedings.

Heard the Ld Counsel Sh.Uma Shankar appearing for the MA petitioner and the Ld Counsel Sh.Hussain for the contesting respondent banks. In the wake of circumstances and pleadings the only point that arises for consideration is:

“Whether the defendant no-3 M/s RMN Infrastructures Ltd in TA No.95 of 2022 was not served with the summons as contended? “

To answer this issue, this Tribunal perused the records and the order sheet in TA No.95 of 2022 [OA No-131/2018]. On 10.5.2018 the matter came up before the in-charge Registrar. It is noted that defendants 1 and 3 are served. One M/s.V.J.Arul Raj had undertaken to file the vakalatnama for defendants 1 to 3, apart from other appearances. Thus there is a noting that this defendant is served and a Counsel appeared and assured that he would file the vakalatnama. The same is repeated in the proceedings dt 1.6.2018.

However since the Ld Counsel appearing for the petitioner had contended that his client was not served, the affidavit of service filed by the applicant banks is perused, the same dt 10.5.2018 shows that all the defendants including the MA petitioner is served. There is an acknowledgement card also returned to the office of the Counsel for the banks which is filed.

In order to meet out this fact when pointed out to the present petitioner, the additional affidavit dt 10.4.2023 is filed. In the additional affidavit it is sworn that “the petitioner company had never given vakalat to the said advocate in the case as it had no knowledge of the pendency of OA No.131 of 2018.”

This averment made in the additional affidavit is also verified through the records. It is seen from the record that a vakalatnama in favour of M/s V.J.Arul Raj and A.Fernandez is found on record. The same is duly signed by the authorised signatory of the 3rd defendant company in the OA with the official rubber stamp of the 3rd defendant company. The same is accepted by the Counsel who filed the vakalatnama dt 30.5.2018.

In view of the above vakaltnama and the order sheets depicting on 10.5.2018 and 1.6.2018 that V.J.Arul Raj who was authorised to appear was duly authorised by the 3rd defendant which had executed a proper vakalatnama in the format which is purchased from “The Advocates Mutually Aided Co-Op Society Ltd., City Civil Court, Hyderabad”. The same springs from Hyderabad.

In view of the above facts flagrantly appearing through the records, the contention of the 3rd defendant in this petition that there was no service of summons and that he has not authorised the Ld advocate to file the vakalatnama is belied, since not even protest notice is issued to the Ld. Counsel for his unauthorized representation, if it was so. Therefore this Tribunal does not find any sufficient cause or reasonable excuse in not contesting the case before the Ld Predecessor. Thus the petition lacks merits. Consequently the following:

: - O R D E R - :

MA No-342/2022 stands dismissed as devoid of merits. This order be also communicated to the recovery proceedings.

Copies of the order be communicated to the parties concerned by the Registry as per Rules. Sd/- (A.S.JAYACHANDRA)

PRESIDING OFFICER

DRT-I, CHENNAI

(Dictated to Assistant who typed in the system, corrected, signed and pronounced in open court on this 12th Day of December, 2023)