Debts Recovery Tribunals and Appellate Tribunals
MS FAHIONEUX vs BANK OF INDIA on 16 April 2019
THE DEBTS RECOVERY TRIBUNAL-II ATCHENNAI
Dated this 16thday of April, 2019
PRESENT: SHRI R. RAVINDRABOSE, M.A., M.L., PRESIDING OFFICER
M.A. No.205/2018
in
O.A. No.575/2017
1.
M/s Fashioneux
No.23, 1st Floor
New Avadi Road, Kilpauk
Chennai – 600 010
A partnership firm
Represented by its Partners
(i) Mr. R. Diwaker and
(ii) Mr. Fazal Mohammed Razack
2.
Mr. R. Diwaker
S/o Mr. C. Rajamanickam
No.12, I Block, 34th Street
Anna Nagar
Chennai – 600 040
3.
Mr. Fazal Mohammed Razack
S/o Mr. Abdul Razack
No.41, Sivalingam Street
VettriNagar
Chennai – 600 082
4.
Mrs. Arjum Ara Farheen
W/o Mr. Fazal Mohammed Razack
P;d Mp/68/A/9-1, New No.287
C.N.A. Road, Khadherpert
Teachers Colony
VaniyambadiTaluk
VelloreDistrict
...Petitioners / Defendants
Vs.
Bank of India
Chennai Main Branch
No.30, Errabalu Street
Chennai – 600 001
Represented by its Constituted Attorney
.....Respondent Bank
Counsel for Petitioner:
Mr. C. Thangaraju and Sathish Kumar
Counsel forrespondent:
M/s S.R. Sudhanraj & S. Saradha
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ORDER
1. Petitioners / Defendants filed this petition under Section 22(2) (g) of RDB Act, 1993 to set aside the ex-parte final order dated 17.07.2018 passed in this OA. Brief averments of petition affidavit:
2. The petitioner came to know about the filing of OA only on receipt of the above final order dated 17.07.2018. From the copy of the order only they came to know about the OA filed by the respondent bank. The petitioners are having great chance of success in the OA. Unless ex-parte order dated 17.07.2018 is set aside, they will be put to irreparable loss and hardship. Even though they are having chance of great success in the above OA, it is impossible for the petitioners to establish the same if the ex-parte order is not set aside. Brief averments of first respondent’s counter:
3. The respondent denies various allegations contained in the petition except those that are specifically admitted herein. The petitioners have not approached this Tribunal with clean hands by wantedly suppressing the material facts. The summons sent by the Tribunal to the defendants were duly served to D1, D3 and D4 respectively on 03.01.2018, 04.01.2018 and 05.01.2018 respectively. The summons sent to D2/petitioner returned with an endorsement ‘no such person’. Therefore, paper publication was effected. Even then D2 has not appeared. Hence all the defendants were set ex-parte. Ex parte final order was passed on 17.07.2018. Only to drag the recovery proceedings, the petitioners filed this petition without any reason. All the allegations are imaginary and concocted. If the petition is allowed, the respondent bank will be put to serious prejudice, great hardship and loss. Thus the respondent bank prayed for dismissal of the petition. Point for consideration:
4. Whether this MA has to be allowed?
Point:
5. On perusal of the OA proceedings, it is found that summons were served P1/D1, P3/D3 and P4/D4. Only second petitioner was not served. Summon to second defendant returned as ‘no such person’. For D2 this Tribunal ordered substituted service. It was effected by the respondent / applicant bank. D2 was called absent and set ex-parte. Other defendants were also called absent, set ex-parte and ex-parte final order was passed. But the petitioners have stated that they were not served with summons, which is not sustainable. The reasons stated by the petitioners are not tenable. However, the petitioners have stated that if chance is given, they may succeed in the OA. For the interest of justice, I am inclined to allow this petition with some conditions. Point is answered accordingly.
6. In the result, this MA No.205/2018 is allowed subject to payment of Rs.50 lakhs to the borrower’s loan account with the respondent bank on or before 16.05.2019, failing which this petition automatically stands dismissed. Time extension petition will not be permitted Call on 17.05.2019 for reporting compliance. (Dictated to PS, transcribed by her, corrected, signed and pronounced by me in the Open Court, this16th day of April, 2019) Sd/- (R. RAVINDRABOSE) PRESIDING OFFICER