Q. What was the bench assigned for the case State Bank of India vs B. Prasanna Kumar and Ors?

Imtiaz Ali, (Presiding Officer)

State Bank Of India Vs. B. Prasanna Kumar And Ors On 18 July, 2022

State Bank Of India v. B. Prasanna Kumar And Ors

(Debts Recovery Tribunal At Bangalore)

I.A. No. 1762/2021 in O.A. No. 1298/2019 | 18-07-2022

1. The present application has been filed by the counsel for the defendant No. 1 to set aside the ex-parte order dated 25.03.2021 in the above case, in the interest of justice and equity.

2. The defendant No. 1 has sworn to an affidavit in support of the above IA stating that, he was residing at No. 441, 13th Main, M.C. Layout, Vijayanagar, Bengaluru-560040 as a tenant and he has vacated the said premises and shifted to present/new address i.e. No. 984, "Skanda Nilaya" 3rd Floor, 2nd Main, Manuvana, Vijayanagara, Bengaluru-560040 and the same was also intimated to the Applicant Bank. Further, he has submitted that, the summons/notice has been issued to the address shown in the cause title by the Tribunal i.e. to the old/previous address and based on the endorsement of the postal authorities, he has been placed ex-parte in the above case and he has not been residing in the address mentioned in the cause title and he is not aware about the summons issued by the Tribunal to the address shown in the cause title. Further, the reasons for non-appearance before the Tribunal on 25.03.2021 due to the reasons mentioned above and absence before the Tribunal was neither willful, wanton nor negligent but the Tribunal set him ex parte and ordered to proceed with the trial of the case in absence of defendants. Therefore, he has prayed the Tribunal to set aside the ex-parte order dated 25.03.2021 and further prayed to provide complete set of copies of the petition, list of documents with copies of documents to him for filing the written statement/objections etc., and also to take part in the trial otherwise he will be put to irreparable loss. He has further submitted that, if the accompanying application is not allowed, he will be put to great hardship and loss, and on the other hand no hardship or loss will be caused to the Applicant Bank if the application is allowed. Accordingly, he prays for allowing the IA.

3. The Applicant Bank has filed objections contending that, the notice on IA No. 3043.2019 was personally served on the defendant No. 1 on 15.09.2020 and defendant No. 1 has signed and acknowledged the service of notice on IA along with the IA order copy, but he has failed to appear before the Tribunal. Though, the summons was taken by way of Newspaper publication against the defendants No. 1 and 3, the defendant No. 1 has not appeared before the Tribunal. The Applicant further contended that, the defendant No. 1 has filed this application to recall the order dated 25.03.2021, on 28.06.2021 without any application for condonation of delay and at this stage, the defendant No. 1 has come up with the present IA and the IA and the affidavit filed by the defendant No. 1 only to protract the proceedings and to delay the recovery measures. The failure to file necessary application and written statement till today demonstrate that the excuse sought to be given is not bona fide. The Applicant further stated that, in view of the decision of the Apex Court in M/s. Crest Steel and Power Pvt. Ltd., Vs. Punjab National Bank, the defendant No. 1 has lost the right to file any written statement. Hence, it has prayed for dismissal of the application, in the interest of justice and equity.

4. Heard the learned counsel for the Applicant Bank only as none appeared on behalf of the defendant side despite availing sufficient opportunities to argue the matter.

5. The points that would arise for my consideration are:

1) Whether the defendant No. 1 has made out the grounds to recall the ex-parte order dated 25.03.2021 and

2) To what relief, the parties are entitled

6. My answer to the above points are as under:

Point No. 1: In the Negative

Point No. 2: As per final order for the following

REASONS

7. Point No. 1. The contention of the defendant No. 1 is that, the defendant No. 1 was residing at No. 441, 13th Main, M.C. Layout, Vijayanagar, Bengaluru-560040 as a tenant and he has vacated the said premises and shifted to present/new address i.e. No. 984, "Skanda Nilaya" 3rd Floor, 2nd Main, Manuvana, Vijayanagara, Bengaluru-560040 and the same was also intimated to the Applicant Bank. He had further stated that, the summons/notice has been issued to the address shown in the cause title by the Tribunal i.e. to the old/previous address and based on the endorsement of the postal authorities, defendant No. 1 has been placed ex-parte in the above case and defendant No. 1 has not been residing in the address mentioned in the cause title and he was not aware about the summons issued by the Tribunal to the address shown in the cause title. He also stated that, the reasons for non-appearance before the Tribunal on 25.03.2021 by the defendant No. 1 was due to the reasons mentioned above and absence before the Tribunal was neither willful, wanton nor negligent but the Tribunal set him ex-parte and ordered to proceed with the trial of the case in absence of defendants. Therefore, defendant No. 1 has prayed the Tribunal to set aside the ex parte order dated 25.03.2021 and further prayed to provide complete set of copies of the petition, list of documents with copies of documents to him for filing the written statement/objections etc., and also to take part in the trial otherwise he will be put to irreparable loss. He further stated that, if the accompanying application is not allowed, defendant No. 1 would be put to great hardship and loss, and on the other hand, no hardship or loss will be caused to the Applicant Bank if the application is allowed. The learned Counsel for the Applicant Bank would argue that, as per Section-19 of R.D.B. Act, 1993, particularly sub-section-5(i) of section 19, the written statement shall be filed within 30 days and in exceptional cases, the said time can be extended for another 15 days by the Presiding Officer. Further, the learned counsel for the Applicant bank would argue that, for non-appearance of defendant No. 1, summons by way of Newspaper publication has been taken in both English and Kannada Language Newspapers i.e. The New Indian Express and Samyukta Karnataka both dated 26.11.2020 by the Application Bank. In spite of service of summons through publication, the defendant No. 1 has not appeared before the Tribunal nor filed any written statement so far. In the present case, Sri K.R. Nagendra Prasad, the counsel for defendant No. 1 has filed recall application in IA No. 1762/2021 on 24.09.2021 along with Vakalat to recall the ex-parte order dated 25.03.2021 passed against defendant No. 1 to file the written statement and case adjourned to 28.06.2021 for evidence affidavit of the Applicant Bank. Therefore, the 45 days would commence from 26.11.2020 (i.e. summons by way of Newspaper publication has been taken in both English and Kannada Language Newspapers i.e. The New Indian Express and Samyuktha Karnataka by the Applicant Bank) and ends on 11.01.2021 to file the written statement by defendant No. 1. But so far defendant No. 1 has not filed the written statement. Further, IA for recall is filed without written statement and defendant No. 1 failed to file the written statement within the time prescribed by the Tribunal and therefore IA is liable to be dismissed. Accordingly, I answer Point No. 1 in the Negative.

8. Point No. 2: In the result, I proceed to pass the following

ORDER

IA No. 1762/2021 is hereby dismissed.

Call on 18/10/2022 for affidavit evidence of the Applicant.