SHASHIKUMAR AND ANOTHER vs VIJAYA BANK on 25 February 2019

**FINAL ORDER**

1. The present application is filed by the appellant under Section 22(2)(g) of the recovery of Debts Due to Banks & Financial institution Act 1993 seeking to recall ex-parte orders passed by this Tribunal in O.A.372/2017 in connection with recovery proceedings of Rs.35,50,219/- 2M.A.No.09/2018

from the respondent bank and direct the petitioner to serve the paper book and permit him to file objections and evidence in the said case.

2. The brief facts narrated by the appellant in the application are that, he has obtained VKC and secured loans from the respondent bank. At the time of serving summons the petitioner was suffering from ill-health and when he contacted local counsel due to lack of knowledge about DRT he has not given proper instructions, thereafter he contacted some other counsel and filed application for recall of the ex-parte orders passed by this Tribunal. He further submits that the administration of Tribunal has not mentioned the application filed by him in proper place and stage, due to this, the ex-parte order was passed by this Tribunal without considering the application filed by the petitioner for recall of ex-parte order. He further submits that even though the respondent bank has not served the paper book, without recalling ex-pare order and without serving the paper book the petitioner is unable to file written statement and unable to contest the matter. He further submits that 3M.A.No.09/2018

notices are served to him and due to his ill-health he was unable to engage the counsel in time. Further he submits that OA 372/2018 is barred by limitation and the act of the respondent bank is against the principles of natural justice and equity and same is unconstitutional. The petitioner further submits that if this application is allowed no harm or injustice will be caused to the respondent bank, on the other hand, he will be put great hardship and injury, hence prays for allowing the application.

3. The respondent bank filed its statement of objections to the application, *inter alia* contending that the application filed by the applicant is frivolous, vexatious, baseless and not maintainable either in law or on facts. Further the respondent bank denied the averments made in the application and submits that this Tribunal cannot recall the order dated 28.04.2018 and cannot permit him to file restoration application. The applicant appeared before this Tribunal through his counsel and subsequently not appeared deliberately with intention to protract the recovery proceedings hence, this Tribunal cannot consider the 4M.A.No.09/2018

present application. The respondent bank further submits that the appellant is making unnecessary allegations and same cannot be entertained and the appellant has violated and deviated the procedure of this Tribunal hence, prays for dismissal of the application with exemplary cost.

4. On the above background, I have gone through the records and heard the arguments advanced by Ld. Counsels appearing for both sides; and the following points arise for my consideration:

- a) Whether the appellant has made out the case to allow the application? and

- b) To what relief, the parties are entitled?

**: REASONS :**

5. The Petitioner / Defendant No.1 along with Defendant No.2 in OA have availed various credit facilities from Applicant bank after executing loan documents in favour of applicant bank. The Petitioner / Defendant No.1 after utilizing all the credit facilities failed to make repayments as agreed upon, and the loan accounts have become irregular and classified as NPA, and Applicant issued legal notice 5M.A.No.09/2018

recalling the entire loans on 07.03.2017. After issuance of legal notice, no payments were forthcoming from the Defendants, hence Applicant Bank left with no other alternative filed the present OA No.372 / 2018 for recovery of a sum of Rs.35,50,219/- from the Defendants No.1 & 2 jointly and severally.

6. After filing of OA, summons issued to the Defendants No.1 & 2; as per the proof of service produced by the Applicant, summons served to Defendant No.1 on 24.08.2017 and for Defendant No.2 on 07.06.2017. As there was no representation for Defendant No.2, hence Defendant No.2 was called absent on 17.08.2017, 20.12.2017, 14.12.2018, 09.03.2018, and was set exparte on 19.03.2018. On subsequent hearings also, that is on 31.03.2018 and on 17.04.2018 there was no representation for Defendant No.2.

7. As regards Defendant No.1 after receipt of notice, there was no representation on 20.12.2017, 14.12.2018. On 09.03.2018, the Petitioner / Defendant No.1 is represented by Ld. Counsel M/s.N.S. Associates and files Memo of 6M.A.No.09/2018

Vakalat and also filed IA No.481/2018 to recall the exparte order passed against Petitioner / Defendant No.1. Thereafter, the IA was taken up for hearing on 19.03.2018, on that day also there was no representation for the Petitioner / Defendant No.1. Subsequently opportunities were given to Petitioner / Defendant No.1 to put forth his arguments in IA No.481/2018 on 31.03.2018 and on 17.04.2018, even on those hearings also there was no representation for the Petitioner. Hence it can safely be presumed that the Petitioner is not interested in prosecuting his case, hence this Tribunal has passed exparte order against the Defendants.

8. In the present IA filed by the Petitioner / Defendant No.1, it is contended that at the time of serving summons the petitioner was suffering from health problems and thereafter the petitioner has filed IA No.481/2018 on 08.03.2018 to recall the exparte order passed against the petitioner and further pointed out that administration has not mentioned the application filed by the Petitioner.

7M.A.No.09/2018

9. On a perusal of the entire records, it is seen that there is no evidence let in by the petitioner about his ailment, whereas this Tribunal has taken up the IA 481/2018 on 09.03.2018 in the presence of the Ld. Counsel for the petitioner and the case was posted for arguments on 19.03.2018. Hence, it is clear that the Ld. Counsel for Petitioner who was present on 09.03.2018 will be aware of the fact of arguments to be heard in IA No.481/2018 on 19.03.2018, but on 19.03.2018 when the matter was taken up once again there was no representation for the petitioner or by its Ld. Counsel on record knowing very well about arguments to be heard in IA. Further, this Tribunal once again granted some more opportunities to the Petitioner to put forth his arguments, but the Petitioner and his Counsel remained absent. The Respondent Bank also in its objection statement has submitted that this Tribunal has given sufficient opportunity but has not appeared to prosecute its case and petitioner's sole intention is to protract the proceedings, whereas the bank is looking for recovery of its outstanding dues since April, 2017. Considering the above 8M.A.No.09/2018

facts, the contentions raised by the petitioner is only an afterthought plea, false, baseless and is rejected.

10. Further, it is contended by the Petitioner that this Tribunal has passed final orders without considering the IA to recall exparte order is also false and is rejected. As discussed above sufficient opportunities have been given to the Petitioner to prosecute his case, but remained negligent and have not represented before this Tribunal, hence this Tribunal has rightly set the petitioner exparte and thereafter passed final order on 28.04.2018.

11. Another contention raised by the Petitioner is that without serving with the paper book by the Respondent Bank the petitioner is unable to file written statement. As per records, the petitioner has represented before this Tribunal only on 09.03.2018 and filed Memo of Vakalat and IA No.481/2018 to recall exparte order and thereafter there was no representation for the petitioner or by its Ld. Counsel to be served with the paper book by Respondent bank. Hence this allegation is also untenable and is rejected.

9M.A.No.09/2018

Considering the above facts and circumstances of this case, I pass the following order.

**: - ORDER - :**

Present MA stands dismissed. No costs.

Pending IAs also closed as infructuous.

(Dictated to the Steno, transcribed by him and after necessary corrections, signed and pronounced by me in the Open Court on this 25^th Day of February 2019)

**K. RAVINDRAN NAIR** Presiding Officer I/C DRT-II, Bengaluru

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