Allowed

Icici Bank Limited v. B Mishra

DRAT28 Jun 2022REGULAR APPEAL/11/2019

Case brief

AI extract

What is this about?

Debt Recovery Appellate Tribunal dismissed the appellants' appeal against a lower court order condoning delay to set aside an ex parte decree. The Court set aside the condonation of delay order due to misuse of process, contrary findings, and lack of sufficient cause.

What did the court decide?

The appeal was allowed; the order allowing condonation of delay was set aside; the application for setting aside the ex parte judgment was dismissed as time barred.

Icici Bank Limited versus B Mishra — Banking and Recovery | DRAT (2022)

¶1

Appeal No. 11 &Tender No. 34 of 2019-DRAT-Kolkata

¶2

IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

¶3

(Appeal No.11 of 2019)

¶4

(Arising out of O.A.121 of 2015 in DRT, Cuttack)

¶5

With

¶6

(Diary No. 34 of 2019)

¶7

(Arising out of O.A. 121 of 2015 in DRT, Cuttack)

¶8

THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

¶9

(Appeal No.11 of 2019)

¶10

(Arising out of O.A.121 of 2015 in DRT, Cuttack)

¶11

ICICI Bank Limited , 2^nd Floor, OCCF Building, Unit-III, Police Station – Khravelnagar, Bhubaneswar, District: Khurda, Odisha.

¶12

… Appellant

¶13

-Versus-

¶14

Mr. Bhabatosh Mishra, Son of Sri Kishore Chandra Mishra, Plot No. 730/964, Enola Nivas, Near Utkal Hyundai, Rasulgarh, Bhubaneswar – 751 010;

¶15

Smt. Enola Mishra, Wife of Sri Kishore Chandra Mishra, Plot No. 730/964, Enola Nivas, Near Utkal Hyundai, Rasulgarh, Bhubaneswar – 751 010;

¶16

3 Mr. Manatosh Mishra, Son of Sri Kishore Chandra Mishra, Plot No. 730/964, Enola Nivas, Near Utkal Hyundai, Rasulgarh, Bhubaneswar – 751 010;

¶17

Mr. Ashutosh Mishra, Son of Sri Kishore Chandra Mishra, Plot No. 730/964, Enola Nivas, Near Utkal Hyundai, Rasulgarh, Bhubaneswar – 751 010;

¶18

Essem Constructions Private Limited, Represented by its Managing Director, Sri Ashutosh Mishra, having its registered office at Plot No. 7A, Sector A, Mancheswar Industrial Estate, Bhubaneswar – 751 010.

¶19

… Respondents

¶20

With

¶21

(Diary No. 34 of 2019)

¶22

(Arising out of O.A. 121 of 2015 in DRT, Cuttack)

¶23

ICICI Bank Limited , 2^nd Floor, OCCF Building, Unit-III, Police Station – Khravelnagar, Bhubaneswar, District: Khurda, Odisha.

¶24

… Appellant

¶25

-Versus-

¶26

Mr. Bhabatosh Mishra, Son of Sri Kishore Chandra Mishra, Plot No. 730/964, Enola Nivas, Near Utkal Hyundai, Rasulgarh, Bhubaneswar – 751 010;

¶27

¶28

Appeal No. 11 &Tender No. 34 of 2019-DRAT-Kolkata

¶29

1. Smt. Enola Mishra, Wife of Sri Kishore Chandra Mishra, Plot No. 730/964, Enola Nivas, Near Utkal Hyundai, Rasulgarh, Bhubaneswar – 751 010;

¶30

3 Mr. Manatosh Mishra, Son of Sri Kishore Chandra Mishra, Plot No. 730/964, Enola Nivas, Near Utkal Hyundai, Rasulgarh, Bhubaneswar – 751 010;

¶31

Mr. Ashutosh Mishra, Son of Sri Kishore Chandra Mishra, Plot No. 730/964, Enola Nivas, Near Utkal Hyundai, Rasulgarh, Bhubaneswar – 751 010;

¶32

Essem Constructions Private Limited, Represented by its Managing Director, Sri Ashutosh Mishra, having its registered office at Plot No. 7A, Sector A, Mancheswar Industrial Estate, Bhubaneswar – 751 010.

¶33

… Respondents Counsel for the Appellant … Mr. Nemani Srinivas with Mr. Rohit Bhattacharjee, Mr. S. Sen, Counsel for Respondents … Mr. Tuna Sahu

¶34

JUDGMENT : 28^th June, 2022

¶35

THE APPELLATE TRIBUNAL :

¶36

Appeal No. 11 of 2019 and Diary No. 34 of 2019 are arising out of a common judgment, hence both the appeals are taken up together and being decided by a common judgment. 2. Diary No. 34 of 2019 has arisen out of an order dated 9^th January, 2019 passed by Learned DRT Cuttack in M.A. 26 of 2019 arising out of O.A. 121 of 2015 whereby the M.A. was allowed and the delay in filing M.A. 27 of 2019 was condoned on the application filed by Defendants No. 3 to 5 in the O.A. without moving an application for setting aside the ex parte judgment dated 6^th November, 2015 passed in O.A. 121 of 2015, was allowed by the Learned DRT.

¶37

Appeal No. 11 of 2019 was preferred against the judgment and order dated 9^th January, 2019 arising out of O.A. 121 of 2015, M.A. 27 of 2019 whereby the Learned DRT has set aside the ex parte judgment and order dated 6^th November, 2015.

¶38

¶39

Appeal No. 11 &Tender No. 34 of 2019-DRAT-Kolkata Aggrieved with the order, Appellants have preferred the present appeals.

¶40

3. The facts of the matter in short are that the Appellant has filed an Original Application for realization of Rs.1,31,26,507.84p along with interest 25% per annum which was decided ex parte on 6^th November, 2015. Thereafter, Recovery Proceedings were initiated. An application for setting aside the ex parte judgment alongwith the application for condonation of delay was filed. As per the application, M.A. 26 of 2019 it is stated by the Respondents No. 1 to 3 that the Original Application was decided ex parte on 6^th November, 2015, notices were not served upon the Respondents by the Tribunal. It is only on receiving information they contacted their Counsel for appearing on their behalf. But after some days he did not appear and also did not file written statement. Proceedings were directed to proceed ex parte on 18^th August, 2015. When Recovery Proceedings, being R.P. 126 of 2015, were initiated, it came to the knowledge of the Defendants No. 3 to 5 that the case is decreed ex parte against the Defendants.

¶41

4. Then Defendant No. 1 engaged a Counsel for appearing in the Recovery Proceedings and then filed Misc. Application, bearing No. 110 of 2016 for setting aside the ex parte decree which was dismissed on the ground that there was no sufficient ground for condonation of delay. Dismissal of the petition for setting aside the ex parte decree is not a lacuna on the part of Defendant No. 1 rather it was on the part of the Advocate who was conducting the case. It is further stated in the application that after dismissal of the setting aside petition, the Defendant No. 4, who is the mother of the Defendant No. 1, got ill as such, fresh petition could not be filed immediately. Thereafter, Defendants No. 3 to 5 contacted their new Counsel to file the application for setting aside the ex parte judgment. This application is supported by an affidavit of Sri Bhabatosh Mishra for and on behalf of Defendants No. 3 to 5.

¶42

¶43

Appeal No. 11 &Tender No. 34 of 2019-DRAT-Kolkata 5. Objection was filed by the Bank stating that the present application is a misuse of process of law. The Defendants were in full knowledge of the Original Application as well as the ex parte decree passed against them. They are taking chances. Firstly, they preferred a Misc. Application, bearing No. 110 of 2016 on behalf of Defendant No. 1, Ashutosh Mishra, on the similar grounds which was dismissed by the Learned DRT vide order dated 6^th November, 2015. M.A. No. 1153 of 2017 was also dismissed on 24^th February, 2018 by the DRT holding that no sufficient ground is made out for condonation of delay in filing the application for setting aside the ex parte judgment and decree. Further another Misc. Application No. 1396 of 2018 was filed on 6^th December, 2018 with the similar grounds wherein affidavit was served by the Defendant No. 1, Ashutosh Mishra, which is still pending. Subsequently, the present application was filed which was allowed by the Learned DRT by the impugned order.

¶44

6. Heard the Learned Counsel for the parties and perused the record. Learned Counsel for Appellant submits that the impugned order is bad in law. It could not be disputed that if sufficient cause is shown, Learned Tribunal can set aside the ex parte judgment and decree but at the same time bona fide and sufficient grounds have to be shown by the Appellants. It is submitted that it is a clear case of misuse of the process of law. Learned Counsel further submits that in the array of parties, residential address of Defendants No. 2, 3, 4 and 5 is same which shows that they are family members who are residing at the same premises. It is further submitted that the impugned order and the finding recorded by the Learned Presiding Officer of the DRT is contradictory with the finding recorded on 24^th February, 2018 in M.A. 1153 of 2017, arising out of O.A. 121 of 2015, wherein application for setting aside the ex parte judgment and decree, filed by Defendant No. 1, was dismissed.

¶45

7. At the very outset it is to be observed that the impugned order dated 9^th January, 2019, passed by Learned DRT in Misc. Application

¶46

¶47

Appeal No. 11 &Tender No. 34 of 2019-DRAT-Kolkata No. 38 of 2019 arising out of O.A. 121 of 2015 allowing the application for condonation of delay, is in contradiction with the order dated 24^th February, 2018 passed by the Learned DRT Cuttack in M.A. 1153 of 2017 arising out of O.A. 121 of 2015. O.A. 121 of 2015 was decided ex parte on 6^th November, 2015. The ground taken by Respondents No. 3 to 5 is that their Learned Counsel, before the DRT, have not prepared the written statement and did not contact Respondents No. 3 to 5, hence proceedings were conducted ex parte. Proceedings shall be conducted ex parte was ordered on 18^th August, 2015.

¶48

8. In AIR 1964 SC 993 Arjun Singh -vs- Mohindra Kumar & Others the Hon’ble Apex Court has held that the Defendant should show sufficient cause of his absence on the date when the proceedings were directed to proceed ex parte. For the subsequent conduct, relevant date would be the date when the Learned trial Court has proceeded ex parte against the Defendants.

¶49

9. In the whole application filed by Respondents No. 3 to 5, the only ground taken is that the Learned Counsel engaged by them did not appear before the DRT and also did not file written statement and the case proceeded ex parte against them. It would be relevant to mention that even the name of the Learned Counsel has not been mentioned in the application. However, in the application for setting aside the judgment moved by the Respondent No. 1, which was dismissed by Learned DRT on 24^th February, 2018, name of Sri S.R. Das appears as the Learned Counsel for the Defendants. It is also not disputed in the application before the DRT that Mr. S.R. Das was not the Counsel for Defendant No. 1 or Defendants No. 3 to 5. When on a similar ground Learned DRT dismissed the application for condonation of delay in M.A. 1153 of 2017 then that order will operate as constructive Res Judicata against other Defendants also. Because in the M.A. 26 of2019 it is nowhere stated that there is any inter se dispute between the Defendants rather its is admitted in para 4 that "when the Defendants came to know about the ex parte judgment,

¶50

¶51

Appeal No. 11 &Tender No. 34 of 2019-DRAT-Kolkata then Defendant No. 1 engaged the Counsel for appearing in the Recovery Proceedings and also filed a Misc. Case bearing No. 110 of 2016 for setting aside the ex party decree and the same petition was dismissed on the ground that there was no sufficient ground.” Thereafter, it is stated that it was not lacuna on the part of the Defendant rather on the part of the Learned Counsel who was conducting the case, who, failed to place sufficient grounds to set aside the ex parte decree. It is further admitted that after dismissal of the application fresh application for condonation of delay is filed by Defendants No. 3 to 5 wherein a ground is taken that in the meantime Defendant no. 4, who is the mother of Defendant No. 1 got ill.” This itself goes to prove that Defendants No. 3 to 5 did have full knowledge of the ex parte decree.

¶52

10. Further, Defendant No. 1 filed an application for setting aside the ex parte judgment and order along with an application for condonation of delay which was dismissed. Thereafter, Defendants No. 3 to 5 moved another application. It clearly shows that Defendants No. 1 and 3 to 5 are in collusion with each other. They have no inter se dispute or clash of interest.

¶53

11. As far as finding of the Learned DRT is concerned, it is very strange to note that in the order dated 24 February, 2018 while dismissing M.A. 1153 of 2017, moved by Defendant No. 1, Learned Presiding Officer held that sufficient cause could not be shown by Defendant No. 1 to condone the delay in filing the Misc. Application while in the impugned order dated 9 January, 2019, passed in M.A. 27 of 2019 filed by Defendants No. 3 to 5, it is held that it would be in the interest of justice to give chance to Defendants to contest. Although no finding is recorded that the ground shown by the Defendants No. 3 to 5 is sufficient to condone the delay or not. Merely giving an opportunity of hearing to Defendants, against whom an ex parte judgment is passed, could not be given as a rule rather there are statutory provisions which have to be complied with by Learned

¶54

¶55

Appeal No. 11 &Tender No. 34 of 2019-DRAT-Kolkata Tribunals. It is settled legal proposition that sufficient ground has to be shown in the case for allowing an application for condonation of delay in moving an application for setting aside the ex parte judgment and order. Learned Tribunal has not recorded even a single ground to prove that sufficient ground was shown rather record shows that it was a case wherein Defendants have used all the options to misuse the process of law. It is not the intention of the Legislature that the Defendants should move the applications in piecemeal for setting aside the ex parte decree when there is no inter se dispute between them. 12. On the basis of the discussion made above, I am of the view that the impugned order could not sustain and is liable to be set aside and both the appeals deserve to be allowed. Since application for condonation of delay is dismissed, the application for setting aside the ex parte judgment and decree is also dismissed.

¶56

O R D E R

¶57

The appeals, obeing Appeal No. 11 of 2019 and Tender No. 34 of 2019, are allowed.

¶58

The impugned order dated 9^th January, 2019, passed in M.A. 26 of 2019, arising out of O.A. 121 of 2015 allowing the application for condonation of delay in filing the application for setting aside the ex parte judgment and order, is hereby set aside.

¶59

Application for setting aside the ex parte judgment and decree is also dismissed being time barred.

¶60

Copy of this judgment be placed in the records of Tender No. 34 of 2019.

¶61

Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

¶62

File be consigned to Record room.

¶63

Order dictated, signed, dated and pronounced in open Court.

¶64

(Anil Kumar Srivastava,J) Chairperson

¶65

¶66

Appeal No. 11 &Tender No. 34 of 2019-DRAT-Kolkata Dated: 28^th June, 2022 18/19/ac

Icici Bank Limited v. B Mishra

Case brief

What is this about?

What did the court decide?

Icici Bank Limited v. B Mishra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

All orders in this case

Similar cases

Punjab National Bank versus M/S Shri Joyti Education And Management Trust World

State Bank of India versus M/s Sri Srinivasa Rice and Flour Mills and Ors.

Cygnus Investment Finance Pvt. Ltd. versus State Bank of India

M/S Mehek Enterprises versus Bank of Baroda

Andhra Bank versus Ms Nacstone Marketing

Asomi versus Axis Bank Ltd.