The Tribunal dismissed an appeal challenging an order refusing to condone a 24-day delay in filing an application to set aside an ex-parte judgment. The court held the appellant failed to satisfy Order 9 Rule 13 CPC regarding sufficient cause for non-appearance.
The appeal was dismissed and no order as to costs was made.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr. Justice Ashok Menon, Chairperson
Misc. Appeal No. 186/2013
Between Shri. Sunil S/o Panmal Zabak … Appellant/s V/s. Bank of Maharashtra & 3 Ors. …Respondent/s
Mr. Puneet Gogad along with Mr. Vishal Sawant, i/ Mr. Narendra L. Karamchandani, Advocate for Appellant.
Ms. Hema Desai, i/b M/s. Singhi & Co., Advocate for Respondent No.1.
-: Order dated: 13/07/2022:-
1
guarantors to the aforesaid transactions. The Ld. P.O., D.R.T., Nagpur, passed an ex-parte decree on 26.08.2010 and it is specifically noted that Respondent Nos.1 and 2, as well as the 4th Defendant, were served with Summons by R.P.A.D. which is evident from Exh 8 to 10 in Annexure-1 Judgment. Annexure-2 here pertaining acknowledgement signed by the Appellant. The 3rd Defendant could not be served and hence, substituted service was affected against him. An ex-parte decree was passed relying on the evidence that was tendered by way of Affidavit by the Branch Manager of the Applicant Bank.
2
certified copy of the ex-parte judgment against the Appellant was applied for on 02.03.2012 and the copy was obtained on 16.03.2012. Thereafter he was bed-ridden due to typhoid and was advised to rest. He met his counsel on 30.03.2012 and was instructed to file an application for setting aside the ex-parte judgment which was ultimately filed on 02.04.2012. It is alleged that there is only a delay of 24 days in filing the application. According to the Appellant, the period of limitation begins to run from the date of knowledge of the ex-parte judgment on getting the notice in the R.P. as stated above.
3
Defendants ex-parte and, therefore, it was an erroneous act. The Ld. P.O. was however not enthused by the submissions made, and observed that there are no good reasons for setting aside the exparte order after condoning the delay of 24 days and in consequence M.A. No. 25/2012 was dismissed. The Appellant is aggrieved, and hence in Appeal.
4
disallowing the application to condone the delay in filing an application to set aside the ex-parte judgment.
5
that it was passed ex-parte was declined to be registered since the application was filed beyond the period of 30 days of the order of the Tribunal and hence found to be barred by limitation.
6
that the Summons was not duly served and, therefore, he is entitled to that benefit of the first part of Rule 13 to Order 9 C.P.C. His averment that he is entitled to file an application within 30 days of knowledge of the Judgment, is not acceptable. Under the circumstances, I am of the opinion that there are no reasons to interfere with the impugned order of the Ld. P.O. to not condone the delay and set aside the ex-parte judgment. It is also pertinent to note that other Defendants, mainly the principal borrower, did not appear to contest the matter and have suffered the ex-parte judgment. The property of the 1st Defendant was mortgaged and the Bank is proceeding against the secured assets belonging to the 1st Defendant.
Sd/Chairperson
dpj-11
7
3 issues framed by the court
Whether the delay in filing an application to set aside an ex-parte decree can be condoned under Article 123 of the Limitation Act.
Whether the appellant demonstrated sufficient cause under Order 9 Rule 13 of CPC for non-appearance in the original application.
Whether the reasons given by the appellant for the delay were sufficient to justify condonation of delay.
Colour shows how this judgement treated each authority
Nandu D. Chhabria Vs. State Bank of India & Ors.Referred¶23
Nandu D. Chhabria Vs. State Bank of India & Ors. MANU/MH/2195/2011
4 provisions across 3 enactments
Shri. Sunil S/o Panmal Zabak
Bank of Maharashtra
M/s. Divya Industries
Shri. Narendra L. Karamchandani
Ashok Menon
As recorded by the court registry
3 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
