Full Judgment
2. Counsel for the appellants submits that the appellants are residing only in No. B-1/10, 3rd Cross Street, Zackaria Colony, Chennai-94, and they are not residing at No. 25A, Baroda Street, West Mambalam, Chennai-33, and the Bank also sent notice to the Zackaria Colony address only and so the summons sent to the Baroda Street address was not served on the appellants and the ex parte Order passed in their absence, is liable to be set aside.
3. Counsel for the respondent Bank submits that in the loan document and other documents the appellant has given only the Baroda Street address and in the further correspondence sent by the appellant, the appellant has given only the Baroda Street, West Mambalam address and even the latest letters sent by the appellant were from Baroda Street, West Mambalam only and only for the address given by the appellant the notices were sent and the notices were returned as 'unclaimed' and so paper publication was effected and there was proper service of summons and so the ex pane Order passed is not liable to be set aside. Counsel for the respondent Bank very much relies upon the loan documents wherein the Baroda Street address is given and also the further correspondence sent by the appellant wherein the Baroda Street address alone is given.
4. Counsel for the appellants very much relies upon the notice sent by the Bank on 19.8.1998 wherein the Bank has sent the notice to the appellants to the Zackaria Colony address. Much reliance is placed upon by the Counsel for the appellants on this notice and the Counsel for the appellants vehemently argues that when the Bank itself knows the address of the appellants as Zackaria Colony and since the Bank has sent notice to that address, the Bank is bound to send the summons only to that address, but the summons were sent to the Baroda Street address and it is not proper and so it can be held that there is no proper service of summons. In the other letters sent by the defendants to the Bank of course, the Zackaria Colony address is shown. Much reliance is placed on the notice issued by the Bank dated 19.8.1998. Of course, in that notice the Zackaria Colony address is given and, in the Auction notice also that address is given. But the property No.25-A, Baroda Street, West Mambalam, Chennai, also belongs to the appellants only and that is given as security to the Bank. The PO, DRT, has found that the notice sent to the appellants defendants 2 and 3 are not returned with the endorsement "Addressee not available or addressee shifted" but with the endorsement "Not claimed" and so the applicant Bank effect publication in two Newspapers. Counsel for the appellants submits that originally the appellants were residing in Baroda Street address and later they shifted to Zackaria Colony address. There was no correspondence by the appellants to the Bank with regard to the change of address. Of course, the Bank has sent the notice to the Zackaria Colony address. But it is not made clear that the appellants are not residing in the Baroda Street address. The endorsement on the returned cover shows as "Not claimed". It means the appellants did not claim that letter. That means the appellants only refused that letter. It is not stated that the addressee is not found there or the addressee has shifted from that premises. Further, it is significant factor that the Order copy was sent only to the Baroda Street address and the appellant himself has admitted that the Order copy was given by some person from that address to the appellant and he received that Order copy and then he filed the petition to set aside that ex parte Order.
5. Even in the Affidavit filed by the appellants, it is stated that the appellants were residing in the address given in the OA few years back and since they have vacated the premises and only on 20.12.2000 persons from the address given in the OA namely No. 25-A, Baroda Street, West Mambalam, Chennai-33, handed over the Order copy in the OA and then only the appellants came to know that Orders have been passed against them which had been despatched on 22.11.2000 from the office. So, it is clear from the Affidavit filed by the appellants that they were occupying the Baroda Street address originally and then vacated the premises. The appellants never informed the Bank about the vacation of the premises. Even the Order copy was handed over only from the Baroda Street address. The appellant himself has admitted that persons from the Baroda Street address handed over the Order copy to the appellant.
So, it is crystal clear that persons known to the appellants alone were residing there. Further, from that document also it cannot be concluded that the appellants were not residing in Baroda Street address and some other person alone was residing there and he handed over the Order copy to the appellant. From the mere version of the appellant that some other persons were residing in that address, it cannot be concluded that the appellants were not residing in that premises. Only for the address given by the appellants the OA has been filed and summons were issued to the appellants. Even though the Bank sent notice to the Zackaria Colony address, all the other correspondences show that the appellants were residing at Baroda Street address also. Even the PO, DRT, has found that in the letter sent by the appellant dated 7.1.2004 addressed to the Chairman of the applicant Bank, the address is given as 25-A, Baroda Street, West Mambalam, Chennai-33.
6. Learned Counsel for the respondent Bank also drew my attention to the various letters written by the appellant dated 25.9.2001 and 23.3.2002 wherein the Baroda Street address alone is given. Even in the MA-99/2003 filed by the appellants before the Tribunal, the address is given as Baroda Street only. Counsel for the appellants also pointed out that the appellant also filed CRP No. 2205/2002 before the High Court of Madras giving his address as No. 25-A, Baroda Street, West Mambalam, Chennai-33 and the CRP was dismissed by the High Court. He further pointed out that even on 7.1.2004 the guarantors wrote letter to the Chairman of the applicant Bank giving the address as Baroda Street only. So, all these correspondences clearly reveal that the appellant was residing in Baroda Street and only for the Baroda Street address all the correspondences were sent and the appellant was also sending letters only from that address. It has not been established that the appellant was not at all residing in 25-A, Baroda Street, West Mambalam, Chennai. Even with regard to the vacating of the premises and the occupation of the premises by another person, there is no intimation at all by the appellants to the Bank. In the absence of any intimation to the Bank, the Bank is not expected to know about the vacation of the premises by the appellant. All these correspondences clearly reveal that the appellant was residing in the Baroda Street address and he is also clearly aware. The fact that the Order copy was sent to the Baroda Street address clearly reveals that the appellant is residing in that premises and he came to know about the passing of the Order only from that address. All these things clearly go to establish that there was proper service of summons, the appellants were residing only in that address and notices were sent only to the address given by the appellants. In the absence of any proof that the appellant vacated premises and shifted his premises to other area intimating by letter, it is very difficult to sustain the case of the appellants.
7. Counsel for the appellants relies upon the decision of the Hon'ble Supreme Court in (2000) 3 SCC 54, G.P. Srivastava v. R.K. Raizada and Ors., wherein the Apex Court has held that "Narrow and technical approach of Court leads to unnecessary prolonging of litigation and justice can only be achieved if defendant is allowed the opportunity to prove his case within a reasonable time". In the case on hand, only for the address given by the appellants the notice was sent. Further, the correspondences sent subsequently also reveal that the appellant was residing only in that address. So, it cannot be stated that there is no proper service of summons. Further, in spite of the pendency of the OA for such a long time, the appellants also never chose to file the written statement. Now the property has been brought to auction and has been sold and the amount has also been appropriated towards the loan account. Counsel for the appellants submits that the appellants also paid Rs.20 lakhs subsequently. Counsel for the respondent Bank submits that even that amount has been given credit to and after giving credit to all the amounts the balance is only Rs. 5 lakhs.
8. For the foregoing discussions, I hold that there is no proper ground to set aside the ex parte Order. The Order passed by the PO, DRT, Coimbatore, is sustained.