Yogesh Gupta vs Punjab National Bank

Punjab-Haryana High Court

Yogesh Gupta vs Punjab National Bank on 23 April, 2024

Author: Lisa Gill

Bench: Lisa Gill

CWP No. 3218 of 2024(O&M) 1

2024:PHHC:055171-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CWP No.3218 of 2024 (O&M)
Date of Decision:23.04.2024

Yogesh Gupta and another
eecees Petitioners

Versus

Punjab National Bank and others

sesees Respondents

CORAM:- HON'BLE MRS.JUSTICE LISA GILL
HON'BLE MS. JUSTICE AMARJOT BHATTI

Present: Mr. Ashwani Talwar, Advocate
for the petitioners.

Mr. Saurav Goyal, Advocate

for Mr. Gaurav Goel, Advocate
for respondent nos. 1 and 2.

38 2K 3K ok 3

LISA GILL, J(Oral).

1. Prayer in this writ petition is for setting aside order dated 14.07.2022, Annexure P-10, passed by learned Debts Recovery Tribunal-II, Chandigarh (for short 'DRT-II'), to the extent it was directed that written statement filed by petitioners be not taken into account and right to file the same was deemed to be closed. There is also a prayer for setting aside order dated 04.12.2023, Annexure P-13, passed by learned DRT-II, Chandigarh, whereby petitioners have been proceeded ex parte despite their counsel being present on the said date.

2. Learned counsel for petitioners submits that OA No. 1293 of 2020 was filed by respondent-Bank before learned DRT-II, Chandigarh on 25.06.2020 i.e., in the midst of outbreak of Pandemic COVID-19. Petitioners being the guarantors were arrayed as respondents no.2 and 4 in the said application. Some time was taken for preparing the written statement, but due to peculiar conditions created by outbreak of Pandemic COVID-19 and its effect on normal working; besides the record being bulky written statement could not be prepared. Petitioners were then granted 30 days time vide order dated 28.04.2022 to file the same with it being last opportunity. Petitioner no.1 fell sick in May 2022 and was in quarantine, therefore written statement could not be filed and a short adjournment was sought before the Registrar of learned DRT-II, Chandigarh, who vide order dated 30.05.2022 ordered the OA to be listed before the Presiding Officer on 14.07.2022. Written statement was prepared and copy thereof supplied to learned counsel for Bank on 10.07.2022 and filed before learned DRT-II, Chandigarh on 11.07.2022, i.e., well before 14.07.2022. Still learned DRT- II, Chandigarh on 14.07.2022 observed that despite several opportunities having been granted to file written statement, there was inordinate delay in filing the same without any valid cause. Therefore, written statement filed on 11.07.2022 would not be taken into account and right to file written statement shall be deemed closed and the matter was listed before the learned Registrar for admission or denial of documents. Petitioners were duly represented before the Registrar on the said date and in the meanwhile, they immediately filed an application dated 09.08.2022 seeking review of order dated 14.07.2022, whereby written statement already filed on behalf of petitioners was refused to be taken on record.

3. It is submitted that in an absolutely irrational manner, learned DRT-I, Chandigarh vide order dated 04.12.2023, directed that petitioners be proceeded ex parte on the ground that counsel had not appeared on two earlier occasions whereas on the said date petitioner's counsel (through his Proxy) was present. The following order was passed on 04.12.2023:-

"Present: Sh. D.K.Gupta, Advocate for the applicant bank Ms. Kahkashan proxy counsel for Sh. Gandharav Malhotra, Advocate for defendant nos.1, 2 and 4 (through VC) Ms. Aarti Aman Arora, Advocate for defendant Nos. 3 and 5.

In view of the fact that none was present on behalf of defendant Nos. 1, 2 and 4 on 05.10.2023 as well as on 15.11.2023, defendant Nos. 1, 2 and 4 are proceeded ex parte.

To come up before the Registrar on 30.12.2023 for admission or denial of the documents on behalf of defendants no.3 and 5."

4. Learned counsel for petitioners vehemently argues that grave prejudice has been caused to petitioners inasmuch as written statement was filed well before 14.7.2022, it was very much available on record when impugned order dated 14.07.2022, was passed by learned DRT-II, Chandigarh. Furthermore, in an absolutely illogical and irrational manner, learned DRT-II, Chandigarh directed petitioners to be proceeded ex parte vide order dated 04.12.2023 on the ground that none had appeared on their behalf on the earlier two dates. It is thus submitted that in this situation, this petition under Article 226 of the Constitution of India should be entertained without insistence on filing an appeal. It is submitted that learned tribunal has proceeded in total defiance of fundamental principles of judicial procedure. It is thus prayed that this writ petition be allowed.

5. Though, notice of motion had not been issued in this writ petition, learned counsel for respondents no.1 and 2 on 13.02.2024 had been SANJAY KHAN 2024.04.26 14:26 I attest to the accuracy and integrity of this document CWP No. 3218 of 2024(O&M) 4 called upon to seek instructions while taking note of pendency of CWP No. 24795 of 2022 filed by DRT Bar Association against the Presiding Officer, who has passed the impugned order. Short reply on behalf of respondents no.1 and 2 has been filed. Learned counsel for respondents no.1 and 2 submits that suit for recovery was filed in the year 2020 and sufficient reasons have been mentioned in the impugned order dated 14.07.2022 for denying the right to file written statement to petitioners. However, it is admitted that copy of said written statement was indeed supplied to counsel for the Bank on 10.07.2022 and it was filed before learned DRT-II, Chandigarh on 11.07.2022. It is further not denied that proxy counsel for petitioners was present on 04.12.2023 i.e., the date on which they were directed to be proceeded ex parte. It is also a matter of record that application for Review of order dated 14.07.2022 was pending on the said date. It is however submitted that in case of any grievance, petitioners have the remedy to file an appeal under Section 20 of the Recovery of Debts and Bankruptcy Act, 1993, before learned Debt Recovery Appellate Tribunal (for short DRAT). It is thus prayed that this writ petition be dismissed.

6. We have heard learned counsel for the parties and have gone through the record with their able assistance.

7. Pendency of CWP No. 24795 of 2022 filed by DRT Bar Association against the Presiding Officer, who has passed the impugned orders, for action against him while highlighting the alleged erratic behavior of the Presiding Officer, is a matter of record. In our considered opinion, present case indeed presents an exceptional and extraordinary circumstance, which calls for exercise of jurisdiction under Article 226 of the Constitution of India instead of relegating the petitioners to their remedy of filing an appeal against order dated 04.12.2023. Gainful reference in this regard can SANJAY KHAN 2024.04.26 14:26 I attest to the accuracy and integrity of this document CWP No. 3218 of 2024 (O&M) 5 be made to judgment of Hon'ble the Supreme Court in PHR Invent Educational Society Vs. UCO Bank and others, Civil Appeal No.4845 of 2024, arising out of SLP (C) No. 8867 of 2022, decided on 10.04.2024.

8. Keeping in view the facts and circumstances of the case, order dated 04.12.2023, whereby petitioners have been proceeded ex parte is set aside with a direction that review application dated 09.08.2022, Annexure P- 12, seeking review of order dated 14.07.2022 be decided by learned DRT-I, Chandigarh (the charge of which is now held by another officer) in accordance with law and expeditiously and definitely within a period of four weeks from 24.04.2024 i.e., the date on which OA No. 1293 of 2020 is informed to be listed for hearing.

9. Writ petition is accordingly disposed of.

( LISA GILL ) JUDGE (AMARJOT BHATTI) April 23, 2024. JUDGE s.khan Whether speaking/reasoned : Yes/No. Whether reportable : Yes/No. SANJAY KHAN 2024.04.26 14:26 I attest to the accuracy and integrity of this document