Shivabasamma vs Pragathi Krishna Gramin Bank on 7 November 2023

ORDER

This petition has been filed on20.06,2018 praying to condone the delay of 980 days in filing an application to set aside the final order dated 11.09.2015 passed in OA 62612014.

2. The case set out by the petitioners/defendants through the notary attested affidavit of the 3'd petitioner/3'd defendant in the IA in brief is as follows:- These petitioners/defendants came to know about the disposal of OA 62612014 on l1 .09.2015 during the course of Lok Adalath only when the 3'd defendant intended to settle one of the loan accounts in OA 114412014. On scrutiny of documents only these petitioners could know about the lapses and fraud committed by the respondent/applicant bank. These petitioners were ignorant about the date of hearing. On account of bonafide reasons only the delay has been occurred. There is a delay of 980 days in filing the petition, which may be condoned. , 3. The respondent/applicant bank filed a statement of objection contending as follows:- The application is not maintainable. Actually, there is a delay of 1014 days in filing the application to set aside the final order. The delay has not been explained properly. There is no valid and justifiable causes produced. On the above contentions, the respondent/applicant bank prayed for dismissal of the IA.

4. The only point arises for consideration is as to whether the petitioners/ defendants are entitled to the relief prayed for?

5. The Point:- The respondent/applicant bank (the erstwhile Pragathi Krishna Grameena Bank) on 20.12.2013 filed OA 62612014 as against the petitioners/ defendants for recovery of the sum of {28,21,0221- with interest thereon @14% per annum from them jointly and severally. Thereafter, the OA was allowed as per order dated 11.09.2015 in the proceedings. The said order reads as below:- T

IA No.l337 of20l8 in IR No.204ll20l8 (Dy No.262512018) " By invoking O.8 R. I 0 of CPC, the present OA is allowed as sought for by the applicant bank with costs. Ofrce is directed to issue recovery certificate forthwith as sought for by the applicant bank with costs qnd do the needful."

6. Pursuant to the final order dated I1.09.2015, recovery certificate bearing No.9412 was issued on 18.02.2016 allowing the applicant bank to recover the sum of <28,21,0221- with interest thereon @14% per annum with quarterly rests from 18.12.2013 till realisation and also the costs amounting to t91,135/- from the defendants jointly and severally and by sale of the schedule immovable properties.

7. While being So, the petitioners/defendants filed a petition with IR No.2041/2018 (Dy No.262512018) praying to set aside the aforesaid final order as against th.,*. As there is delay in filing the same, they filed the present IA to condone the delay of 980 days in filing the same.

8. 5.24 rlw S.2(b) of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) - for short 'the Act' - says that the provisions of the Limitation Act, 1963, shall, as far as may be, applied to an OA flled under S.l9(l) of the Act. Needless to say, the instant application is governed by Art. 123 of the Limitation Act, 1963, which reads as follows:- Article

Description of suit Period of Timefrom which period begins to run limitation To set aside a decree passed ex- Thirty days The date of the decree or where the parte or to re-hear an appeal summons or notice was not duly served, decreed or heord ex-parte. when the applicant had knowledge ofthe decree. u

9. A careful reading of Art.l23 of the Limitation Act, 1963 would clearly show that when summons is duly served on defendant, the period of limitation for filing an application for setting aside a decree passed ex-parte will begin to run not from the date of knowledge of the decree but from the date of the decree itself. A perusal of the OA records show that summons in the OA was sent to the defendants by registered post on 23.07.2014, which were not retumed and thus they were deemed to be served. However, the petitioners/defendants were served with substituted service of summons by IA No.1337 of20l 8 in IR No.204 l/201 8 (Dy No.262512018) way of publication in the Hindu and Vijay Karnataka dailies dated 28.11.2014. But the defendants remained absent and they were not represented in the proceedings and thus they were declared ex-parte on 17.10.2014. In the above circumstances, a final order was passed on 11.09.2015. Therefore, the petition to set aside the aforesaid final order ought to have been filed on or before 12.10.2015. But they filed the above applications beyond such period i.e., only on 20.06.2018. Thus, there is a delay of 982 days in filing such application. ,

10. 5.22(2)(9) of the Act r/w O.9 R.l3 of the Code of Civil Procedure, 1908 provides for setting aside an ex-parte final order against a defendant, which provides for two reasons, namely (i) summons was not duly served and (ii) sufficient cause preventing the defendant from appearing when the suit was called on for hearing. The summons was sent to the petitioners/defendants by registered post on 23.07 .2014 in the same address as they shown in their own application only. Therefore, in view of the provisions of S.l14 Illustration (f) of the Evidence Act, I 872 and S.27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the notice sent by registered post. Reliance in this regard can be placed upon the Judgements of the Hon'ble Supreme Court in Parimal v Veena [reported in 201I (l) KLT SN 84 (C.No.l14) SC] , Buttar v (Jnion of India [reoorted in 2011 (2t KLT SN 42 (C.No.58.) SCJ and Coal Indian Ltd. V Ananta Saha freoorted in (20]lt 5 SCC l42J and also in the Judgements rendered by the Hon'ble High Court of Kerala inAyissabeevi v Aboobaker [reported in ]971 KLT 273 : 1971 KLJ 485 : AIR 1971 Ker.23LJ andMonichanv State of Kerala freportedin 2020 (2) KLT 784 : 2020 (2t KLJ 924 : 2020 ICO 3591. However, the presumption is rebuttable on a consideration of evidence of impeccable character. In the above circumstances, this Tribunal is of the opinion that once the summons is sent by registered post to the defendants in their correct address known or last disclosed to the respondent/applicant bank, they cannot resist the nomral presumption of deemed service. The defendants could IA No.l337 of20l8 in IR No.204ll2018 (Dy No.2625l2018) not rebut this presumption in any way. Moreover, they have no case that they had not received the summons in this case. In the above circumstances, this Tribunal is of the opinion that the petitioners/defendants were duly served with summons in this case. But they remained absent in the proceedings and attracted an ex-parte final order at their own risk and responsibility only. The petitioners/defendants submit that they have valid defences against the respondent/applicant. If that be so, they have not explained as to why did not file a written statement of defence but chose to remain ex-parte in the proceedings. If they had done so it was at their sole risk and responsibility only. They cannot blame others for their own laches and irresponsibility. Such a lackadaisical attitude nurtured by the petitioners/defendants in a judicial proceeding cannot be appreciated rather tolerated by this Tribunal in any manner to set aside a final order passed against them as they only attracted the same by their own mistakes and lapses. I l. According to the petitioners/defendants, they could know about the disposal of OA 62612014 on 11 -09.201 5 during the course of Lok Adalath only when the 3'd defendant intended to settle one of the loan accounts in OA ll44l2}l4.However, no details regarding the Lok Adalath has been fumished by them. It is not explained as to hotv they could come to know about the disposal in such Lok Adalath. No precise reason has been fumished. It is also their contention that on scrutiny of documents only they could know about the lapses and fraud committed by the respondent/applicant bank and they were ignorant about the date of hearing. Except making such vague statements, the petitioners/defendants have no specific reason as to how they were ignorant about the date of hearing of the OA. They have not shown any sufficient cause preventing them from appearing before this Tribunal when the oA was called on for hearing.

12. The explanation offered by them cannot be believed even for a moment ard it is only a cock-and-bull story invented by them to cover up their laches in defending their case. No valid case was put forth by the petitioners/defendants to grant the relief IA No.l337 of20l8 in IR No.204ll2018 (Dy No.2625lZ0tB\ prayed for. The petitioners/defendants in paragraph IV of the petition to set aside the final order under the head 'limitation' has pleaded that they could be aware of the final order only when the respondent/applicant bank started canvassing the recovery measures in and around the area on21.05.2018 to 31.05.2018, based on the recovery certificate bearing No.9412. It only means that the petitioners/defendants remained idle and only when they knew that their immovable properties are being proceeded against for recovery of the amounts due from them, they awoke from their deep slumber.

13. This Tribunal is required to weigh the explanations offered by the petitioners/defendants and the acceptability of the same. The delay in this case reflects the inactivity and the inaction on the part of the petitioners/defendants. The law does not permit one to sleep and to seek one's relief as and when one desires. The failure on the part of the petitioners/defendants in not showing due diligence in filing the application [IR No.204ll20l8 (Dy No.262512018)] at the right time and the inordinate delay taken in filing the same can only be construed, in the absence of any valid explanation, as gross negligence and lack of bonafides on their part. If ex-parte final orders are set aside on flimsy grounds like these, there would be no finality to the applications filed before this Tribunal, which would adversely affect the avowed object of the Act. Thus, IA 1337l20lS is devoid of any merit and thus is liable to be dismissed. Suffice it to say that application [IR No.204ll2}l8 (Dy No.2625l2018)] also fails and is liable to be dismissed.

14. In the result, IA No.l337 of 2018 is dismissed. Application UR No.2041l2018 (Dy No.262512018)l is ordered not to be registered and thus rejected. No costs. [Dictated to my PA, transcribed by him, corrected and pronounced by' me in the open 1'ribunal on this the 07'h day of November, 2023J \ u 1 urarr!,2 ALr l

IN THE DEBTS RECOVERY TRIBLINAL - 1, KARNATAKA A'f BANGALORE PI{ESENT: SI{I IMTI AZ ALI PRESIDING OFFICER Dated the 07tl' Novernber, 2023 INTBRLOCU'I'OITY APPLICA'I'ION NO. 1337 OF 2018 IN IR No.2041/2018 (Dy No.262 512018) Between Shivabasamnra. W/o Shivareddappa, Near Deodurg Cross, Sirwar P.O, Manvi Taluk. Raichur. Karnataka and two others. .... PetitionersiDef-endants And Karnataka Gramin Bank, (erstwhile Pragathi Krishna Gramin Bank),

Raichur, Karnataka - 584129. . ... Itespondent/Applicant bank oItr)lirr }.-"