CITI BANK N.A. vs ANANM KHAN on 14 October 2019

1. **1. Mrs. AANAM KHAN, W/o. Mr. Zakee Hyder Khan, Aged about 38 years, R/at Atithi Apartment, AD-171, Rabindra Pally, Flat E4, 'Kestopur', Kolkata -700 101.**

2. **2. Mr. MOHAMMED IBRAHIM ZAKEE HYDER KHAN, S/o. Mr. Mohammed Ibrahim Khan, Aged about 52 years, R/at Atithi Apartment, AD-171, Rabindra Pally,**

2IA.360/2019

Flat E4, 'Kestopur', Kolkata – 700 101.

**3. M/s. CENTURY JOINT DEVELOPMENT PVT. LTD.,**

Having its Registered Office at No.10/1, Lakshminarayana Complex, Palace Road, Bengaluru- 560 052, Rep. by its Authorized Signatory – **Mr. F. H. Dubash.**

..... **RESPONDENTS.**

**Counsels on record / appeared for:**

Appellant : MGC & Co.

Defendants 1 & 2 : Absent.

Defendant No.3 : Sri. R. Srinivasa Rao.

**ORDER ON I.A. NO.360/2018**

The present Application has been filed by the defendant No.3 to recall the order dated 28/02/2019, taking written statement as " not filed", by the Registrar, and to permit to file the written statement filed along with it.

2. One Mr.Vivekananda Nayak, has sworn to an affidavit in support of above IA stating that, he is the Authorized Signatory of the 3^rd defendant Company and he is unable to give instructions to his counsel to file the written statement as the file pertaining to the case has been misplaced. He further submits that, immediately, after tracing the same, he has contacted his 4IA.360/2019

merits and neither maintainable in law and the same is concocted in order to avoid payments due by them. The applicant further contended that, application came to be filed to permit the respondent No.3 to file written statement and the written statement was filed with vague contention and without having any intention of explaining the reasonable grounds in filing the application. In addition to the above, it is clearly established the intention of the defendant No.3 is to drag on the matter by enriching themselves at the cost of the applicant bank. Further, the application filed by the defendant No.3 is barred under law. Hence, it has prayed for dismissal of the application.

4. Heard the learned counsel for the defendant No.3 as well as the applicant bank.

5. The following points that arise for my consideration are:

1. 1) Whether the defendant No.3 has made out the exceptional circumstances to receive the written statement filed by him?

2. 2) What order?

6. My answer to the above points are as under:

Point No.1 : In the Affirmative

3IA.360/2019

counsel and his counsel prepared written statement, but he is not able to sign the same on 28.02.2019. He further submitted that, non-filing of written statement is not intentional and but for the above said bona fide reasons. If this Application is allowed, no hardship or injury would be caused to the applicant. On the other hand, if not allowed, the defendant No.3 would be put to great hardship and injury. Accordingly he has prayed for allowing the application.

3. The applicant bank has filed objection to the application of the defendant No.3 contending that, the present application filed by the respondent No.3 is barred by limitation and based on the vexatious grounds. The defendant No.3 has made the futile attempt to file the present application after granting sufficient time to file written statement. The applicant further contended that, the Application filed by the defendant No.3 is misconceived, false and frivolous in as much as the defendant No.3 had failed to set out any grounds for grant of any relief's whatsoever and on this count alone, the application deserves to be rejected. The applicant further contended that, the application is devoid of 5IA.360/2019

Point No.2 : As per final order, for the following

**REASONS**

7. **Point No.1.** The learned counsel for the defendant No.3 would argue that, the case was posted for written statement of defendant No.3 on 28/02/2019, and since there was no representation, the written statement was taken as not filed by the Registrar and subsequently, the defendant No.3 has filed his written statement on 07/03/2019 along with the IA to receive the same. Further argue that, the defendant No.3 was unable to give instructions to his counsel to file the written statement as the file pertaining to the above OA was misplaced. Immediately, after tracing the same and he contacted his counsel and his counsel prepared the written statement but he was not able to sign the same on 28/02/2019. The learned counsel for the applicant bank would argue that, as per Section-19 of R.D.B Act, 1993, particularly sub-section-5(i) of section 19, the written statement shall be filed within 30 days and in exceptional cases, the said time can be extended for another 15 days by the Presiding Officer. The defendant No.3 filed his *Vakalathnama* on 06/10/2017. Initially the paper book was served to defendant 6IA.360/2019

No.3 on 24/01/2018. Since the paper book served to defendant No.3 was not legible, the Tribunal has directed the applicant bank to serve the legible copy of paper book to defendant No.3. The legible paper book was served to the defendant No.3 on 31/01/2019. Therefore, the 45 days would commence from 31/01/2019 and end on 15/03/2019. The written statement came to be filed by defendant No.3 on 07/03/2019 which is within the expiry of 45 days. I am therefore of the view that there are grounds to set aside the ex-parte order placing the defendant No.3 ex-parte. Moreover, the matter is still pending and evidence of applicant bank is not yet commenced. Therefore, I am of the view that, it is a fit case to set aside the ex-parte order and to permit the defendant No.3 to file the written statement which is filed within 45 days from the date of service of legible paper book. Hence, I answer Point No.1 in the Affirmative.

**8.Point No.2:** In the result, I proceed to pass the following:

**ORDER**

IA No.360/2019 is hereby allowed. Written statement taken on record.

7

IA.360/2019

Call on 16/12/2019 for applicant bank's evidence.

(Dictated to the Steno, transcribed by him and after necessary corrections, signed and pronounced by me in the Open Court on this the 14th day of October, 2019).

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

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