1. This is an appeal directed against an order dated 3rd November, 2003 passed by learned Presiding Officer, D.R.T., Jabalpur for setting aside ex parte judgment passed in T.A. No. 1155/1998 decided on 30th April, 2002. The above application for restoration was disposed of along with another application for restoration of the same judgment moved on behalf of the defendant No. 3 Alok Khanna who has not joined this present appeal.
2. The respondent-Central Bank of India filed a suit for recovery before the Court of District Judge, Bhopal. The proceedings of the above suit were going on before the above Civil Court but after the enactment of RDDBFI Act i.e. Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the above suit was transferred to D.R.T., Jabalpur, where it was registered as T.A. No. 1155 of 1998.
After the receipt of records the D.R.T., Jabalpur directed to issue summons/notices to the appellant and other defendants. Notices/summons were issued to the appellant and other defendants except No. 5. The summons/notices to appellant-defendant were returned with endorsement that the present appellant is not residing at the address given in the suit. The summons were not issued again to the appellant and the Tribunal took this service to be sufficient and proceeded ex parte and passed ex parte judgment on 30th April, 2003. In his restoration application the appellant pleaded that his address was given as E-3/H-19, Arera Colony, Bhopal in the above suit but after his retirement he has shifted to Noida in the year 1998 and he never resided at the aforesaid address of Bhopal. He contended that prior to his retirement he was serving in Army residing at 569/18, Chandigarh.
For the purposes of proving his address at Noida he had filed his telephone bills and asserted that he was never informed to the transfer of case to the D.R.T., Jabalpur and the Tribunal presumed the service of those summons/notices upon him which were sent at the wrong address given in the suit. On the basis of knowledge through his friend received on 14th September, 2002 he claims to have knowledge about the ex parte judgment passed against him and then he contacted his Counsel and filed application for restoration. Before the Tribunal the respondent bank opposed the application moved on behalf of the appellant for setting aside the ex parte judgment. The contention of the bank against restoration was that appellant had been appearing in the proceedings before the Civil Court before the transfer of the suit to the D.R.T., Jabalpur and he knowingly avoided to appear before the Tribunal to delay adjudication of his liability to pay the amount. The contention of the respondent bank was that in the suit filed before the Civil Court, summons were issued and served upon the appellant at the same address which is now claimed by him to be incorrect. From the side of the bank it is also pleaded that neither the name of the friend through whom he came to know about the ex parte judgment has been mentioned nor there is any affidavit of that friend for the support of the contention of the appellant. The bank contended that the appellant wants to delay the recovery proceedings. After considering the material available before D.R.T., Jabalpur it passed the impugned order dated 3rd November, 2003, rejecting the application moved by the appellant for restoration of the suit and feeling aggrieved against this order, this appeal has been filed.
3. I have heard the Counsel for the appellant and learned Counsel for the respondent bank at length and have gone through the impugned order as well as original records. Learned Counsel for the appellant has argued that after the transfer of the case to the D.R.T., Jabalpur from the Civil Court, Bhopal the appellant was never informed about the transfer of the case. He has pointed out that the summons/notices were ordered to be issued by D.R.T., Jabalpur to the appellant at the address given in the suit but since that address was not correct and the appellant was not residing at that address the summons/notices sent were received unserved but even then the learned Presiding Officer, D.R.T., Jabalpur presumed the services of such summons/notices upon the appellant sufficient and has passed the ex parte judgment without any service of proper summons/notices. He has led this Tribunal through the impugned order particularly through pages 15 and 16 of the impugned order and has argued that the learned Presiding Officer, D.R.T., Jabalpur has not been able to appreciate the law with regard to service of summons/notices. He has drawn the attention of this Tribunal towards provisions of Order 6 Rule 14-A of the CPC and has drawn attention of this Tribunal towards unserved registered post summons/notices received back before the Tribunal with endorsement that the addressee i.e. the appellant was not residing at the address shown. The attention of this Tribunal has also been drawn towards the copy of the application for restoration available on the paper book and the two copies of telephone bills issued in the name of the appellant showing the address of the appellant of Noida for the years 2002 and 1997. On the basis of above materials, it is vehemently argued drawing the attention of this Tribunal towards para 5(C) of the memo of appeal, para 8 of the reply thereof filed by the respondent to argue that the ground for the presumption of the service of summons/notices upon the appellant is not at all justified.
4. Against this the submission from the side of the respondent bank is that the summons/notices were issued to the appellant at the same address which were given in the suit filed before Civil Court, Bhopal and after due service of the summons, appellant himself had appeared there by putting in his appearance filing vakalatnama of his Advocate.
It is also argued that at no point of time appellant agitated before the Civil Court that his address given in the suit was not at all correct. His argument is that if above address was correct for service upon the appellant in the civil suit how that address can be taken to be incorrect after the transfer of the case to the D.R.T., Jabalpur.
His other argument is that the appellant has failed to disclose the name of his friend from whom he came to know about the passing of ex parte judgment and has deliberately failed to file the affidavit of his that friend in support of his case. It is pointed out from the side of the respondent-bank that the appellant's own real brother was the director of the company for which the loan in question was taken and that they are hand in glove with each other with a view to delay the recovery of the amount of the bank.
5. Having considered all above arguments and record this Tribunal is of the opinion that in the instant case the appellant was appearing in the civil suit filed before District Judge, Bhopal and after the transfer of the above civil suit in the year 1999 there is no denial of the fact that the summons/notices were ordered to be issued to the appellant by D.R.T. The restoration was moved by the appellant in the year 2002, but it is surprising to note that he did not take pains to know about the fate of the case till the date of the passing of the ex parte decree.
It is not explained by the appellant as to who was his that friend of Bhopal, to have informed him about the passing of the ex parte judgment and what was the difficulty for the appellant to file an affidavit of his friend, if at all, that friend had actually informed about the ex parte proceedings. It is settled principle of law that sufficient ground for setting aside ex parte judgment is to be established by the person who claims that he had no knowledge of the proceedings which resulted in exparte judgment. In the instant case, the appellant has failed to satisfy this Tribunal that actually he had no knowledge of the proceedings resulting in exparte judgment and that with all bona fides he came with restoration application after having received the information through his particular friend. Moreover, the appellant's own real brother is shown to be the director of the company for which the loan was advanced. Not only this the address which now the appellant claims to be incorrect was never challenged before the Civil Court where the appellant appeared after the issuance of summons and service at same address which was later on alleged by him lo be his incorrect address. If at all the appellant as per his own version was residing at Noida since 1987 why he did not bring it to the notice of the Civil Court where proceedings were pending and he was putting his appearance, much after 1987.
6. In view of the above discussions, evidences and facts brought on the records, this Tribunal is of the opinion that the appellant has failed to bring forth satisfactory ground for setting aside the ex parte judgment and the reason was that he had knowledge of each and every thing regarding proceedings even after the transfer of the case to the Tribunal.
7. From the facts borne out. it is clear that non-disclosure of the name of the friend by the appellant as well as his non-filing of affidavit of that friend coupled with fact that he did turn up in the suit before the Civil Court on the summons which were issued at the address which is in the suit itself, impleadment of company through director who is real brother of the appellant lead to one conclusion that the appellant had sufficient knowledge of the progress of the case and for this reason the Tribunal is of the opinion that in the summary proceedings like present one, there is no violation of principles of natural justice particularly when the appellant himself applied with restoration when the mortgaged property was to be put to auction.
Moreover, from all above facts and circumstances it is established that the appellant himself thought it proper to move restoration application only when the proceedings for recovery were taken up for auction/sale of the property with a view to delay the recovery of the bank dues.