Bombay High Court
City Builders vs Vysya Bank Ltd. on 18 October, 2002
Equivalent citations: I (2003) BC 522, 2003 (2) BomCR 645
Author: C Thakker
Bench: C Thakker, R Desai
JUDGMENT
C.K. Thakker, C.J.
1. Rule. Mr. Girish Kulkarni appears and waives service of Rule on behalf of the respondent. In the facts and circumstances, the matter is taken up for final hearing today.
2. This petition is filed by the petitioner for quashing and setting aside an order passed by the Debts Recovery Tribunal II, Mumbai, in M.A. No. 54 of 2002 on July 24, 2002 and confirmed by the Debts Recovery Appellate Tribunal in Misc. Appeal No. 321 of 2002 on Septembers, 2002.
3. It is not necessary to enter into larger question in view of the facts that the controversy raised in the present petition is of a limited nature.
4. It is not in dispute that an ex parte decree came to be passed against the defendant-present petitioner on September 7, 2001 for Rs. 1,18,37,122.50 with interest at the rate of 16.5% per annum from the date of filing of the application till realisation.
5. It was the case of the petitioner that he was not aware of ex parte decree passed against him. He came to know about the decree for the first time on or about March 11, 2002. Immediately thereafter, steps were taken. Certified copy was applied for, and an application for setting aside ex parte decree was filed before the Tribunal. According to the petitioner, since the petitioner was not aware, there was no delay on the part of the petitioner in approaching the Tribunal by filing an application, which was filed within time. At the most, there was delay of three to four days in filing the application. Considering the matter in its entirety, the Tribunal ought to have condoned delay. Unfortunately, however, submitted the petitioner, by taking too technical view, the Tribunal rejected the application.
6. Being aggrieved by the said order, the petitioner approached the Appellate Tribunal, and the Appellate Tribunal also confirmed the order passed by the Debts Recovery Tribunal, observing that the petitioner was aware of the proceedings as also ex parte decree as Demand Notice dated February 28, 2002 was served upon him. The Appellate Tribunal, therefore, rejected the application, confirming the order passed by the Tribunal.
7. In our opinion, even if it is assumed that a demand notice was issued on February 28, 2002 and the petitioner came to know about ex parte decree on that day and not on March 11,2002, as contended by him, there was no gross delay. An application for setting aside ex parte decree was made on May 13,2002. It is also necessary to note that on April 10, 2002, the petitioner applied for certified copy of the order dated September 7, 2001 which was ready on May 9, 2002. Thus, there was delay on some days only. In the light of the averments made and contentions raised, it would be in the interest of justice if we allow the petition by condoning delay in filing the application for setting aside ex parte decree.
8. Accordingly, the order passed by the Debts Recovery Tribunal in M. A. No. 54 of 2002 on July 24, 2002 as confirmed by the Debts Recovery Appellate Tribunal in Misc. Appeal No. 321 of 2002 on Septembers, 2002 is hereby quashed and set aside. The application (M. A. 54 of 2002) will now be decided on its own merits by the Debts Recovery Tribunal.
9. We may, however, clarify that we are not expressing any opinion with regard to the ex parte decree passed against the petitioner. It is for the Tribunal to consider as to whether the contentions raised and averments made would justify setting aside the ex parte decree or not. It is equally open to the respondent-Bank to contend that it could not be said that the ex parte decree was illegal or was liable to be quashed and set aside as it was passed in accordance with law. As and when the matter will come up for hearing, the Tribunal will apply its mind and pass an appropriate order.
10. From the record, it is clear that the ex parte decree was passed on September 7, 2002. It was for about Rs. 1.18 crores. Thereafter, more than one year has passed. According to the learned Counsel for the respondent-Bank, as on today, the amount which comes to Rs. 1.87 crores is due and payable by the petitioner. The above figure is disputed and contested by the learned Counsel for the petitioner.
11. We are expressing no opinion on the amount; but, in our opinion, ends of justice would be met if we direct the petitioner to pay an amount of Rs. 50,00,000.00 (Rupees fifty lacs only) to the respondent-Bank, without prejudice to contentions to be raised at the time of hearing of application for setting aside ex parte decree. Such an amount of Rs. 50,00,000.00 will be paid by the petitioner to the respondent-Bank on or before December, 31, 2002. Till January 1, 2003, no further proceedings in pursuance of ex parte decree will be taken by the respondent-Bank. But if the amount will not be paid by the petitioner latest by December, 31,2002 as stipulated hereinabove, it will be open to the respondent-Bank to take appropriate proceedings in accordance with law. It is also clarified that if the amount will be deposited by the petitioner, it will be kept by the respondent-Bank in a separate account, and it will accrue interest as per the practice of the Bank. At the time of final hearing of the application, an appropriate order will be passed by the Tribunal.
12. Petition is allowed to the extent indicated above. Rule made absolute. No costs.
13. Issuance of certified copy of this order is expedited.
