Porwal Auto Services And Ors. vs Punjab And Sindh Bank
2007 Latest Caselaw 575 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. Heard.

2. The challenge in this writ petition is to the Order passed by Debts Recovery Appellate Tribunal, Mumbai, on 8th August, 2005 in Misc. Appeal No. 46 of 2003, refusing to set aside ex parte Judgment delivered by Debts Recovery Tribunal on 6th June, 2002.

3. Considering the nature of controversy and various orders passed earlier, we have heard the matter finally. Hence, Rule. Rule is made returnable forthwith.

4. During hearing, it has transpired that the Certificate, for which recovery has been initiated against present petitioners, is for Rs. 13,40,922-00 with costs and interest. Learned Advocate Mr. Chandurkar states that while moving application before Debts Recovery Tribunal for setting it aside, 25 per cent of the amount, i.e., Rs. 3,44,000-00, has been deposited. He further states that though the Debts Recovery Tribunal's order shows that summons was "not claimed" or "refused" by present petitioners, that is not the correct position, and the same was never tendered to the petitioners. He, therefore, states that all these aspects are not considered by the Debts Recovery Appellate Tribunal while refusing to set aside the said order. He points out that as per judgment dated 6th June, 2002, recovery proceedings were initiated before Recovery Officer, and petitioners received notice thereof, which was then made returnable on 20th August, 2002. He states that immediately after getting knowledge of ex parte Judgment, petitioners applied for certified copy and got it on 2nd September, 2002. However, application for setting aside ex parte order was not immediately filed, as talks of compromise began with the parties and when the petitioners found that respondent was unnecessarily delaying the compromise, ultimately on 23rd December, 2002, Misc. Application was filed before Debts Recovery Tribunal for setting aside the said ex parte order. There was a delay of about 110 days. The Debts Recovery Tribunal has not condoned the said delay and, therefore, Misc Civil Appeal No. 46 of 2003 was filed before the Debts Recovery Appellate Tribunal.

5. Learned Advocate Mr. Kulkarni, on the other hand, contends that orders passed by the Debts Recovery Tribunal and the Debts Recovery Appellate Tribunal are just and proper, and call for no interference in the writ jurisdiction. He points out that the petitioners are defaulters and clubbing their ten accounts together, the respondent-Bank has worked out their liability which is more than rupees one crore. He states that as against this, the petitioners have offered only Rs. 33,00,000-00. He, therefore, states that the petitioners are only interested in delaying the matter and writ petition should be dismissed.

6. After hearing the parties and also after perusing earlier orders passed by this Court, it is apparent that the talks of compromise were going on between the parties. In such circumstances, it was felt by us that when service of initial notice itself is in dispute, the petitioners can be given one opportunity, provided they complete the payment of certificate amount.

7. The learned Counsel for the petitioners has stated that if a reasonable period is granted, the petitioners will complete said payment, provided they are given opportunity to place their case on merits before the Debts Recovery Tribunal.

8. Learned Advocate Mr. Kulkarni objects to this. He states that more than a reasonable time has already been given and considering the attitude of present petitioners, it will be a misplaced sympathy.

9. As the petitioners have already shown their bona fides by depositing Rs. 3,44,000-00, and have also offered to pay certain more amounts as a part of compromise, and before us they have expressed their readiness and willingness to complete the payment as mentioned in the Certificate within a reasonable time, we grant one more opportunity to the petitioners. Earlier orders in this writ petition itself show that efforts to compromise the dispute were going on between parties and petitioners cannot be said to be acting negligently or mala fide.

10. For that purpose, the ex parte order dated 6th June, 2002 is hereby set aside, subject to petitioners depositing the amount as mentioned in the Recovery Certificate, within a period of one month from today. The request of Advocate appearing on behalf of respondent to direct the petitioners to deposit amount of interest and costs also is hereby rejected, because it is an ex parte order. If the amount as directed by us is not deposited, the respondent-Bank shall be free to proceed further with recovery proceedings.

11. The petitioners shall file their Written Statement before the Debts Recovery Tribunal within a further period of fifteen days after completing the payment of Certificate amount as mentioned above, and thereafter the Debts Recovery Tribunal shall decide the proceedings filed by the respondent-Bank on merits in accordance with law, within an further period of three months.

12. In view of this, the impugned orders dated 8th August, 2005, 17th January, 2003 and 6th June, 2002 are accordingly quashed and set aside. Subject to compliance as stated above, Original Application No. 11 of 2002 is restored back to file of Debts Recovery Tribunal, Nagpur. Writ petition is. thus, allowed. It is, however, made clear that these orders of pendency of proceedings before the Debts Recovery Tribunal do not preclude the parties from proceeding further with their efforts to compromise.