Delhi High Court
Raj Kumar Gupta vs Punjab National Bank & Anr on 22 May, 2015
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: May 22, 2015.
+ W.P.(C) 5127/2015, C.M. No. 9286/2015
RAJ KUMAR GUPTA ..... Petitioner
Through: Mr. B.S. Nagar, Mr. Mithilesh Kumar
and Ms. Kuldeep Kaur, Advs.
versus
PUNJAB NATIONAL BANK & ANR ..... Respondents
Through: Ms. Bindu Das and Mr. Kamal Kishore,
Advs.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE R.K. GAUBA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. Issue notice.
2. Ms. Bindu Das, Advocate accepts notice.
3. The petitioner is aggrieved by the order of the Debts Recovery
Appellate Tribunal (hereinafter referred to as "the DRAT") dated
06.05.2015, by which the DRAT refused to set aside the order of the Debts
Recovery Tribunal (hereinafter referred to as "the DRT") dated 24.03.2015.
By the said order, the DRT refused to set aside its ex-parte final order dated
17.06.2013. The DRT did not condone the delay in filing M.A. 107/2013
against the order dated 17.06.2013 and dismissed the appeal.
W.P.(C) 5127/2015 Page 1
4. The respondent bank had initiated proceedings in this Court against
the petitioner by way of a summary suit, under Order XXXVII of the Code
of Civil Procedure seeking to recover the outstanding dues against the
petitioner. These were in respect of guarantee furnished by him.
Apparently when the suit was pending before this Court, in certain orders,
the Court had doubted the maintainability of the proceedings given that the
residence of the principal borrower was not within the jurisdiction of this
Court or in India. Upon coming into force of the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 (hereinafter referred to as "the
RDDBFI Act"), the suit was transferred to the DRT. Initially, the petitioner
was represented. Its written statement was on record. However, sometime
in the later part of 2004 onwards, there was no representation on behalf of
the petitioner and he was set down ex-parte. It may be stated that the
petitioner had on an earlier occasion been declared ex-parte on 17.07.1996
but his request for setting aside that order was accepted and he was allowed
to appear. Eventually, by the final order, the DRT decreed the bank's
Original Application (OA) no. 1158/1995 against the petitioner on
17.06.2013. The petitioner moved an application, M.A. 107/2013, for recall
of that final order. The said application was rejected by the DRT on
24.03.2015. The DRAT refused to interfere with this order by the impugned
order. Learned counsel urges that the DRT's order is untenable in law. He
urges that the liability could not be fastened without the bank in the first
instance proceeding against the principal borrower. That was not possible on
account of legal impediments. It was urged that the petitioner was set down
ex-parte on 21.07.2004. Final order was kept reserved and eventually
pronounced in 2013.
W.P.(C) 5127/2015 Page 2
5. We have considered the records. The petitioner was set down ex-
parte on 21.07.2004, however, the petitioner's further submission that the
DRT had heard final arguments and that the orders were kept reserved for
nine years is not correct. The bank's arguments were sought to be addressed
and on several occasions, on account of administrative reasons, including
the absence of presiding officer, the OA was adjourned. Change of the
presiding officers (necessitated by reason of ending of tenure) led to
appointment of new presiding officers, who took charge and had to hear
arguments all over again. In these circumstances, all that can be inferred is
that the matter was pending. The petitioner's argument that the judgment or
orders were reserved is not borne out from the record. In response to the
contention that the petitioner had no credible explanation for his absence
after 21.07.2004, learned counsel urged that being an old man, he lost track
of the proceedings. However, we notice that the petitioner had engaged a
counsel, who would have been expected to keep track of the proceedings
and defend his interest. In these circumstances, no fault can found with the
approach of the DRT in making the ex-parte order on 17.06.2013 and
declining to recall it in the application filed by the petitioner by its order
dated 24.03.2015.
6. The petitioner apparently chose to prefer an appeal only in respect of
the order declining to set aside the ex-parte final order. In these
circumstances, the DRAT's order in our opinion cannot be faulted. At the
same time, this Court is conscious that the net result of all these
circumstances is that the petitioner is now faced with the final order without
the benefit of appropriate scrutiny. In the peculiar circumstances of this
case, we are of the opinion that even though the DRAT declined to interfere
W.P.(C) 5127/2015 Page 3
with the ex-parte final order, on the ground that the appeal against the order
of 24.03.2015 was delayed, the petitioner should not be ultimately
prejudiced. The DRAT was of the opinion that no interference was called
for, since the application for setting aside the ex-parte decree was filed with
a delay of 181 days.
7. In the peculiar circumstances of the case, the result and position is
that the petitioner has been left remediless against the final order of the
DRT. We consequently grant the liberty to the petitioner to file an appeal on
merits against the final order of the DRT dated 17.06.2013, provided the
same is done within two weeks from today. In such an event, the DRAT
shall consider the merits of the appeal uninfluenced by questions of delay.
The DRAT may pass appropriate orders on any application for waiver of
pre-deposit that the petitioner may file along with the appeal pursuant to the
liberty given by this Court.
8. The writ petition is partly allowed to the above extent.
9. Petitioner is directed to pay costs quantified at `75,000/- to the
respondent within four weeks from today.
S. RAVINDRA BHAT
(JUDGE)
R.K. GAUBA
(JUDGE)
MAY 22, 2015
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W.P.(C) 5127/2015 Page 4
