S.K Mohapatra, Presiding Officer:— This pertains to an Application filed by Smt. Bimla Devi under Section 22(2)(g) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for setting aside the ex parte order dated 24.5.2000 passed in O.A No. 191/1998.
2. It is the case of the applicant that at no stage any notice/summon was ever served on her in O.A No. 191/1998 which prevented the Applicant to appear and contest the said original application. It is also her contention that she is an illiterate simple house-wife and lives in Parda and has not made any transaction with anybody. She has prayed to give her an opportunity to contest the original application.
3. Defendant No. 1, the Decree Holder Bank had contested the M.A by filing rejoinder dated 13.11.2002 In addition to objection on ground of limitation, the Bank has objected that Ghuran Mishra, f/o the Applicant had no authority to file the Application. With regard to the merit of the case it has been contended by the Decree Holder Bank that once there has been a substituted service through publication in Newspaper, there is deemed service in law and applicant cannot take plea that they were unaware of the original proceedings in question. In connection of the petitioner's contention that applicant is an illiterate Pardanasin lady, it has been vehemently controverted that applicant had visited the Bank on many occasions and had executed various documents as follows amongst others:
1. Agreement to mortgage dated 28.10.1991—Annexure III of O.A
2. Supplementary agreement to mortgage dated 22.9.1992—Annexure VI of O.A
3. Letter of guarantee dated 27.5.1995—Annexure XIV/A of O.A
The Decree Holder Bank has also furnished a copy of the judgment dated 8.2.2002 in O.A 195/2000 which inter alia reveals that the present applicant was the Sole Proprietor of M/s. Bajrang Agri Co. and had taken loan of Rs. 15.5 lacs from Allahabad Bank, Tatisilwai Branch, Ranchi. In that case being O.A No. 195/2000 the applicant was the borrower and her husband was the guarantor and there was an ex parte decree against her on 8.2.2002 for payment of Rs. 34,47,868.17 paisa. Accordingly, Bank has stressed that the claim of the Applicant that she is a Pardanasin lady is false and baseless.
4. Heard the parties and perused the records.
5. In connection with the Bank's objection that the application is not maintainable as the same has been affirmed by the applicant's father and not by the applicant, the petitioner has relied on the case-law reported in AIR (30) 1943 Calcutta 13, wherein one Munib Gumashta was orally authorized and instructed to do anything necessary in connection with business and was expressly authorised orally to take necessary steps in regard to pending arbitration to which firm Was party. In that case application to set aside award signed and verified by Munib was held competent.
In the instant case it is seen that the application has been verified by the applicant. She has also authorized her father and has filed her written submission by way of affidavit on 17.3.2003 Needless to say that technical objection ought not to be encouraged. Accordingly the said objection is rejected so as to decide the issue on merit.
There was also an objection on the ground of limitation. However, the same was not stressed during the argument. In the facts of the case it is only fair to condone the delay and to adjudicate the issues on merit.
In connection with Bank's reliance on the O.A No. 195/2000, wherein Applicant was the Sole Proprietor of M/s. Bajrang Agri Co. and had taken loan of Rs. 15.5 lacs; petitioner had objected to take cognizance of the same as the said fact was relatedly produced after argument and when the case was fixed for orders. The objection has no leg to stand. Once the document is relevant and is necessary for disposal of the issues, it can be accepted and considered even if produced at a late stage but before delivery of judgment, by of course, affording due opportunities to the parties.
6. The fact of the case precisely is that the Allahabad Bank, Doranda Branch had filed an Original Application No. 191/1998 before the Debts Recovery Tribunal, Patna against defendants, wherein Smt. Bimla Devi was made defendant No. 3, being the guarantor. Registered notices were issued to the defendants including the applicant Smt. Bimla Devi on 30.1.1999 but neither the notice nor the acknowledgements were received back. Thereafter, pursuant to the petition of the Applicant Bank dated 25.5.1999, notice was published in the daily Newspaper “Ranchi Express” on 13.6.1999 In spite of substituted service through paper publication since defendant Nos. 1 to 4 failed to appear before the DRT, Patna ex parte order dated 24.5.2000 was passed allowing the claim of the applicant Bank against the aforesaid defendants.
7. The applicant has taken the stand that she is an illiterate house-wife and lives in Parda and has not made any transaction with anybody. Controverting such submission the Decree Holder Bank has referred to Annexures III, VI, XIV/A of the Original Application where from it is prima facie seen that the applicant has executed agreement to mortgage, supplementary agreement to mortgage and letter of guarantee on various dates i.e 28.12.1991, 22.9.1992, and 27.5.1995 respectively. It is also seen from the copy of the ex parte judgment filed by the Decree Holder Bank in O.A No. 195/2000 that the applicant was the Sole Proprietor of M/s. Bajrang Agri Co. and was the principal borrower in that case. She has also executed various documents with the Allahabad Bank, Tatisilwai Branch for obtaining Cash Credit Limit for Rs. 15.5 lacs. In the above scenario the claim of the petitioner that she is an illiterate Pardanasin lady appears to be baseless and far from bona fide.
8. The main contention of the applicant is that at no stage any notice was ever served on her. In this connection petitioner has led emphasis on non-compliance of Order 5 Rule 17 of C.P.C Service of summons by affixing copies, however, is only one of the methods and is not compulsory. Tribunal has discretion to adopt a particular method to bring to the knowledge of the defendant the claim against him. Rule 11 of DRT Procedure Rules, 1993 provides that a copy of the application and paper book shall be served to each of the defendants as soon as they are filed, by the Registrar by registered post. Sub-rule VIII of Rule 23 gives additional power to the Registrar for ordering a particular method of service on a defendant including the substituted service by publication of the notice by way of advertisement in the newspapers. It is pertinent to mention here that although this Tribunal was established on 26.2.2002 no Record Server has yet been appointed. Accordingly notices have been sent by this Tribunal through registered post with acknowledgement due and also through paper publication in appropriate cases. Once the summons are properly addressed prepaid and duly sent by registered post with acknowledgement due, the allegation that service as per C.P.C has not been followed cannot hold good.
In this connection the observation of Hon'ble Supreme Court reported in (1989) 1 SCC 264 : AIR 1989 SC 630, can be referred to, which is as follows:
“Where statute does not specify any additional or alternative mode of service, other than service of notice by post, there can be no warrant for imparting into the statute a method of service on line of provisions of C.P.C”
The Tribunal is not bound by the strict rules of the provisions of the C.P.C The mode of service adopted by issuing registered notice with AD followed by notice through local newspaper in circulation in the locality, where the applicant presently resides (in the present case at Ranchi) is reasonably calculated to give defendants actual notice of the proceedings and an opportunity to be heard. The daily newspaper “Ranchi Express” is widely circulated in Ranchi and the substituted service would construe as sufficient notice upon the defendant.
Be that as it may there is denial on oath that applicant had not received any summon and had no knowledge of the suit. Even if there is deemed service practically speaking the substituted service is not effective if it does not give the defendant information of the suit and the claim against her. There is no record to show that the applicant had knowledge of the suit. Ordinarily Court of facts should believe the averment of petitioner on oath. Moreover the receipt of registered notice does not reveal the full address at which it was sent to the applicant. There is no office copy of notice or any document to establish the complete address at which the summon was sent. Considering all aspects and to avert the chances of serious injustice in depriving the petitioner of her right to defend, I am inclined to afford her an opportunity to prove her case within a reasonable time.
9. It cannot however be overlooked that the original suit was filed as far back in the year 1998. In terms of the judgment, defendants including the applicant are jointly and severally liable for Rs. 28,37,861% with 12% pendente lite and future interest. Liability has swelled against defendants as on date to nearly 40 lacs. The liability of petitioner as guarantor is joint and several and coextensive with principal debtor. There has been no attempt on part of the defendants, having enjoyed the fruit of money, to pay back the dues to Bank. Needless to say that dues of public Banks are the dues of entire people. Once there is an indication of a likelihood of prejudice to the public interest it has to be protected. Therefore, interest of Bank has also to be protected.
10. In view of the aforesaid discussion the application is conditionally allowed and it is ordered that the judgment dated 24.5.2000 will be set aside as against the petitioner (defendant No. 3 of O.A No. 191/98) only on fufilment of following conditions:
1. The applicant shall open a fixed deposit with the decree holder Bank for Rs. 4 lacs for a period of six months within 30 days from the receipt of this order. In case applicant succeeds, the said amount along with interest will be returned to her. However, in case her liability towards the debts due to the Bank is confirmed the amount of the fixed deposit along with interest will be adjusted towards part payment of the debts.
2. Applicant should also file written statement along with evidence on affidavit within 30 days from the receipt of this order.
It is made clear that in case the two conditions are not fulfilled within the stipulated period this application shall stand dismissed.
On fulfilment of aforesaid conditions the Certificate dated 26.5.2000 issued in O.A No. 191/98 in respect of petitioner (defendant No. 3) only shall remain stayed.
11. The question which still remains to be decided is if the judgment dated 24.5.2000 is to be set aside against defendant Nos. 1, 2 and 4 of the Original Application as well.
12. I answer the same in negative in view of the following:
Firstly, the agreement between creditor Bank and applicant guarantor is a quite independent contract.
Secondly, ex parte judgment passed against several defendants is to be set aside only against the defendant, who apply and not against one who does not apply.
Thirdly, the decree is a separable decree. The judgment dated 24.5.2000 passed in O.A No. 191/1998 is, therefore, set aside only in respect of applicant i.e defendant No. 3 (Guarantor) of the original O.A The judgment in respect of other defendants which has attained finality remains unaltered.
13. The Miscellaneous Application is allowed accordingly. Serve copy to the parties.
Application allowed conditionally.