1. This appeal has been preferred against the order dated 23rd March, 2005 passed by the learned Presiding Officer, D.R.T., Jabalpur in miscellaneous application No. 144/2001, whereby and whereunder, the restoration petition under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter shall be referred to as the RDDBFI Act) for setting aside ex pane judgment delivered on 20th September, 2000 in T.A. No. 386/98 has been rejected.
2. The brief facts are that respondent-C.B.I. filed a civil suit: for recovery of Rs. 10,78,162/- along with interest, cost, etc. against respondent No. 2-Jiyaji Rao Cotton Mills and the appellant holding him jointly and severally liable for payment. While the suit was proceeding before the Court of Additional District Judge, Gwalior, the appellant, who was defendant No. 2 in the suit had appeared through one Mr. T.P.Singh, Advocate and filed petition for setting aside of exparte order passed against the appellant, which was allowed and several dates were given at the instance of the appellant for filing written statement, but ultimately no written statement was filed by the appellant and in the meantime when the RDDBFI Act came into force and it was established at Jabalpur, then the suit was transferred by the Civil Judge, to D.R.T., Jabalpur fixing a date to appear before the D.R.T., Jabalpur and such order was passed in presence of the parties, who were present in the suit at the relevant time. Before the D.R.T., Jabalpur, it appears from the records that, the main borrower Jiyaji Rao Cotton Mills became sick and ultimately it was wound up. by a Company Judge of High Court, Madhya Pradesh and official liquidator was appointed and at the instance of the respondent Bank amendment was made in the original plaint/origtnal application to bring the official liquidator on records. At that time learned Presiding Officer asked for service of notice on all the defendants under registered post. The notices were sent but as they did not return after service, although more than 30 days had elapsed, under the provisions of the General Clauses Act, service of notice was accepted as deemed service and when nobody appeared including the appellant, ex pane judgment was passed on 20th September, 2000 in T.A. No. 386/98, which is registered number on being transferred from the Civil Court.
3.The appellant's plea in the restoration petition is that they have not been served with any notice while the case was running before the D.R.T. The appellant came to know of ex parte judgment on 30th September, 2000, when copy of the judgment was received by them, then they tried to contact their lawyer T.P. Singh, but ultimately it was found that Mr. Singh had left India with bag and baggage and settled in Australia, then ultimately another Advocate was appointed who took some steps towards filing of the restoration petition but then the said Advocate Mr. Solapurka had also shifted to Bilaspur on marriage and did not come to Jabalpur and then another Advocate Mr. Vivek Singh was appointed and ultimately the restoration petition was filed on 6th November, 2001. It is their case that the appellant had got no privity of contract with the respondent Bank and they remained only as transporter and there cannot be any liability thrust upon the appellant, which was to be borne by the borrower alone. It has further been stated that in two other cases of two different Banks the appellants with similar allegation were made parties but ultimately the same Presiding Officer had rejected the claim of those Banks against the appellant. As the restoration petition is hopelessly barred by limitation for more than a year, a petition under Section 5 of the Limitation Act was filed by the appellant along with the restoration petition. There were also averments regarding non service of summons in proper form as copy of plaint, documents annexed, evidence in affidavit had never been sent to the appellants and the appellant Corporation have been transformed into a company and as per the Companies Act notices were required to be sent at the registered office, but that was not done in the present case.
4. From the side of the respondent Bank the contents of restoration petition and the grounds of condonation have been vehemently opposed and all averments have been denied. According to the Bank, the appellant had appeared in the proceeding while the same was lying in the Civil Court and when transferred, as required under provisions of the RDDBFI Act, the Tribunal was to proceed from the stage when it has been transferred. Accordingly, no notice was required to be served on the appellant freshly from the Tribunal as in the Civil Court's order, the appellant and the respondent-Bank were asked to appear on the fixed date before the Tribunal and as such when the appellant had the knowledge of the proceedings, then there is no scope of taking the plea that the appellant had never been served with notice. Whatever address was given to the Bank from the side of the appellant, notices were sent to that address when the appellant had appeared in the proceeding.
5. After considering the cases of both the parties, the learned Tribunal found that the appellant could not be able to make out a case for restoration of the original case and the restoration petition was hopelessly barred by limitation as no sufficient grounds could be made out from the side of the appellant.
6. Mr. V.D. Chauhan appearing for and on behalf of the appellant has stressed on the same point, which was raised before the Tribunal while adjudicating the restoration petition. On the face of the records, the appellant was negligent from the very beginning in the case. After service of notice in the Civil Court, the appellant did not appear and then exparte order was passed. Then and then only the appellant appeared through their Advocate and got the exparte order vacated and took several adjournments for filing of written statement but did not file so. When the case was transferred to the D.R.T., they remained totally absent. According to Mr. V.D. Chauhan, when the case was transferred to the Tribunal, then the notices ought to have been served freshly on the defendants including the appellant. I do not find any force in such submission. In presence of the appellant and the Bank, learned Civil Judge had transferred the case to the Tribunal fixing a date for appearance of the parties before the Tribunal, so there was no scope for the Tribunal to give further notice to the appellant. On such direction being given, the Bank had appeared before the Tribunal.
Moreover, when the amendment was made, then further notice was issued under registered cover to all the defendants including the appellant.
But the acknowledgement due did not return and as such learned Tribunal considered the case of deemed service. From this consistency and chronology, it cannot be found that there was any fault on part of the Tribunal in not informing the appellant about the pendency of the case.
Moreover, the appellant on the same address could get the copy of the judgment under registered post sent by the Tribunal and then they slept over the matter for more than a year and then filed restoration petition making concocted and manufactured story of negligence of lawyers, but nowhere it is supported by any affidavit from the lawyers that they had contributed to the negligence of the appellant. It further appears from the para No. 12 of the impugned order that the restoration petition was prepared with affidavit a year back, but it was not filed and no reasons have been given to that effect. Thus it is found that the. appellant could not be able to make out any case of restoration of the original application. Regarding non-liability of the appellant is a matter on the merit of the case, which cannot be considered by this Tribunal in the limited scope of restoration petition. The appellant had the knowledge of the proceedings while it was pending before the Civil Court and in their presence the case was transferred to the Tribunal. In that way, under the amended proviso of the Order 9 Rule 13 of the CPC which is para materia the same as that of Section 22(2)(g) of the RDDBFI Act, when the knowledge of the appellant is there of the proceeding, then even if there is technical defect in the service of notice or summons, the exparte judgment cannot be set aside. Thus on the factual aspect and also on the legal points, this appeal has got no force and is liable to be rejected.
7. In the result, the appeal is dismissed but in the circumstances, no order as to cost.