M/S Raj Industries, Faridabad Petitioner(S) v. Union Bank Of India & Ors. (S)

Kanwaljit Singh Ahluwalia, J. (Oral)

CM No. 16759-CII of 2011

For the reasons stated in the application, the same is allowed and the petitioner is permitted to place on record as Annexure P-7 copy of the judgment dated 21.3.2011 passed by the court of Additional District Judge, Faridabad.

CR No. 7513 of 2010

In the present revision petition, order dated 20.5.2009 passed by Additional Civil Judge (Senior Division), Faridabad, refusing to recall the ex-parte order, has been assailed, along with the order dated 10.4.2010 passed by Additional District Judge, Faridabad whereby he upheld the order dated 20.5.2009 passed by Additional Civil Judge (Senior Division), Faridabad.

Respondent-plaintiff - Union Bank of India instituted a suit for recovery of Rs. 9.17.950.50 against the present petitioners. The petitioners were proceeded against ex-parte and a judgment/decree Annexure P-1 was passed against the present petitioners, defendant to the suit. The suit was instituted on 18.5.1993 Petitioner-defendants to the suit were proceeded against ex-parte on 31.8.1993 and ex-parte judgment and decree were passed on 15.1.1994 It is the case of the petitioner-defendants to the suit that they filed an application for setting aside the ex-parte decree on 12.2.1994 to which the plaintiff-respondent filed reply and the issues were framed. However, it is the case of the petitioners that the said application was not decided as the case was transferred from the court and the petitioners lost the track of the case; they were not able to know the outcome of the proceedings. It is stated that the petitioners have been trying hard to locate the file of application for setting aside the ex-parte decree but the same has not yielded any result.

In reply to the application, respondent-decree holder stated that after the decree was passed, Recovery of Debts Due to Banks and Financial Institutions Act, 1993 was enacted and the petitioner-judgment debtor had filed objections to the petition before the Debts Recovery Tribunal (in short the Tribunal) and had contested the case with full force. It is stated that having lost before the Tribunal, after 10 years of the passing of the decree, present application for setting aside the decree was instituted on 10.11.2003

In a very profound order, the lower appellate court has culled the facts and for ready reference, it will be apposite to reproduce para 9 of the order dated 10.4.2010 passed in Civil Misc. Appeal No. 20 of 2009:- “9. Following facts are duly established on persual of file and evidence led by the parties:-

1. That suit for recovery of Rs. 9,17,950.50 was filed by the plaintiff bank (respondent No. 1) on 13.5.1993 Repeated summons were sent through ordinary process as well as registered AD. Defendants were ordered to be served by way of munadi.

2. That they (appellants) were proceeded ex-parte vide order dated 31.8.1993 on the basis of service by way of munadi.

3. That after ex-parte evidence, judgment and decree dated 15.1.1994 were passed in favour of plaintiff/respondent bank.

4. That defendants came to know about passing of judgment and decree dated 15.1.994 on 10.2.1994

5. Accordingly an application for setting aside judgment and decree dated 15.1.1994 was filed.

6. That on the said application after reply by bank issues were framed vide order dated 13.9.1997

7. Plaintiff bank had filed an execution petition.

8. That during the pendency of execution before the civil court, the same was transferred to Debts Recovery Tribunal.

9. Appellants/applicants had duly filed their objections dated 26.2.1998 before Debts Recovery Tribunal against execution filed by the bank.

10. The objections filed by appellants/applicants were dismissed by Debts Recovery Tribunal.

11. The appeal against dismissal of objections was filed.

12. Appeal was also dismissed.

13. Mortgaged property was sold in execution by Debt Recovery Tribunal.

14. The sale was confirmed in favour of auction pruchaser Shri K.P Garg, vide order dated 12.5.1993

15. Appellants/applicants have also admitted that appeal against order of confirmation was also filed by them.

Furthermore, it will be necessary to notice that regarding the fate of earlier application, whereby a prayer was made for setting aside exparte order, very general and vague averment has been made that since the court was transferred, the file is not traceable. Even if this averment is given some semblance of credence, the evidence of Pardeep Sharma, Advocate, examined by the petitioner as AW2, completely demolishes the case of the petitioners. It will be necessary to reproduce following part of the impugned order passed by the lower appellate court:-

“13… The said application was filed on behalf of appellants by Shri Pardeep Sharma, Advocate who had appeared as AW2. The case of appellants is that their first application was lost as same was transferred to another court and could not be traced inspite of repeated efforts. Again appellants have failed to prove fact that previous application was lost and efforts were made to trace the same. AW-2 has clearly admitted that case file was taken from him by appellants as they had not paid his fee and were not contacting him. AW-2 further stated that when file was taken away by appellants the application for setting aside was still pending. No other evidence to show that file was lost and efforts were made by the appellants to search it was led. The evidence of AW-2 shows that appellants were themselves negligent. …”

This Court cannot ignore the fact that the present application for setting aside ex-parte decree was filed after the lapse of 10 years and that too after execution proceedings were contested with all might. This Court cannot become oblivious of the fact that in the execution proceedings, objections were filed by the petitioners before the Tribunal; the same were dismissed, mortgaged property was sold; sale was confirmed in favour of the auction purchaser, and thereafter application for setting aside ex-parte decree was filed.

Having lost in each forum, each kind of tactics was deployed to frustrate the fruits of litigation which had accrued to the decree holder. It is travesty of justice that about 18 years are going to elapse when the decree was passed and still, in one forum or the other, by filing one petition or the other, litigation is kept alive.

No case is made out to cause interference. Hence, the present petition is dismissed with costs of Rs. 5,000/-.