PANCHRATNA BAR N RESTAURANT AND ORS vs BANK OF BARODA on 2 August 2022

1. This is an application for restoration of Appeal No. 124/2011 which was dismissed by this Tribunal on 28.01.2019 for non- appearance of the Appellants as well as the Counsel.

2. The perusal of the proceedings in this Appeal indicates that the Appellants were not very vigilant in conducting the Appeal. There has been a constant request made at the behest of the Appellants for adjournment and a number of times it has been adjourned since 2011. Finally, it was posted for dismissal three times and ultimately it was dismissed for default.

3. In the application and the accompanying affidavit filed by the Appellant it is stated that the Counsel who was appearing for the Appellants has not been informing the Appellants about the posting of the Appeal and they were kept in dark mainly for the reason that the professional fee of the Counsel was in arrears. From the proceedings, it is seen that the Counsel had not sought permission of the Tribunal to issue a notice to his clients informing them about not getting instructions. The Counsel just remained absent on a number of occasions despite the matter being posted for dismissal and as a consequence of that, the Appeal got dismissed. The restoration application was filed by another Counsel who was engaged by the Appellants.

4. The third Respondent who is the auction purchaser has filed an affidavit in reply to this application vehemently opposing the restoration of the application and he has also extracted in a tabular form the dates on which the Appeal was posted for hearing and for dismissal which indicates that either the Appellant or his Counsel were recalcitrant and not prosecuting the Appeal vigilantly.

5. The first Respondent has not filed any reply to this application but the Ld. Counsel appearing for the first Respondent has also opposed the application for restoration with equal vehement submitting that the Appeal is not getting dismissed for the first time and it was also dismissed and restored on an earlier occasion and the party has gone up to Hon’ble High Court to get it restored.

6. The second Respondent who is an Auction Purchaser has also opposed the application for restoration stating that the auction took place in October 2007 and since then they have been waiting to get their title confirmed. If the matter is protracted further injustice would be done to them.

7. After having heard the arguments advanced by both sides and also on perusal of records, I find that there were some latches on the part of the counsel for not having informed the Appellant about his not being able to present himself for his arguments. It is only when the matter was dismissed that the Appellant came to know about dismissal and their Counsel not appearing for arguments. There must have been some lack of vigilance on the part of the Appellants in pursuing the matter but it cannot be insisted that they should have appeared on each date of hearing to see what is happening in the Appeal.

8. Under the circumstances, I find that the Appeal needs to be disposed of on merits but being a matter of 2011 and also going into the checkered history of this Appeal, I am of the opinion that the application can be allowed only on putting the Appellants to the terms of payment of the cost to the contesting Respondents. Hence, the application is allowed on payment of cost Rs.10,000/- each to the counsels appearing for Respondents Nos. 1, 2 & 3 respectively within a period of four weeks failing which the application shall stand dismissed.

9. Post on 02.09.2022 before the Registrar for compliance. Sd/- Chairperson mks-23