The Tribunal allowed an appeal to set aside a DRT order dismissing a Special Appeal in default. The dismissal was due to the appellant's counsel's absence caused by a family bereavement and related rituals, deemed not intentional.
The order of DRT dismissing MA No. 61/2020 is set aside; S.A. No. 128/2019 restored; matter remanded to DRT.
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DEBTS RECOVERY APPELLATE TRIBUNAL, DELHI
Appeal No. 14/2021 Arising out of S.A. No. 128/2019 (DRT, Jaipur)
Ashok Kumar Mehta Vs Bank of Baroda &Anr.
08.12.2022 Hon’ble Mr. Justice Brijesh Sethi
Present: Mr. Atul Nagarajan, Ld. counsel for appellant
Mr. Amit Mahaliyan, Ld. counsel for respondent bank
Mr. Mrinmay Bhattmerwara, Ld. counsel for respondent no.2 (auction purchaser)
This matter has been taken up by me through Video Conferencing.
The present appeal has been filed by the appellant aggrieved by the order dated 26.02.2021 passed by the learned DRT dismissing his MA for recalling the order dated 18.02.2020. Vide order dated 18.02.2020, the S.A. filed by the appellant was dismissed in default as no one had appeared on behalf of the appellant on the said date.
Ld. counsel for the appellant submits that the learned counsel for the appellant, Mr. R.P. Singh, could not appear on 18.02.2022 owing to the death of his real sister’s husband and the application was wrongly dismissed by the learned DRT as Mr.R.P. Singh was the main counsel and the same was clear from the order-sheets dated 01.06.2019, 24.07.2019, 01.08.2019,
Perusal of the order-sheet dated 01.06.2019 reveals that Mr. R.P. Singh, learned counsel, had appeared on behalf of the appellant and arguments were heard on the interim relief in the said case. Thereafter, on 24.07.2019 also Mr.R.P. Singh was the counsel who represented the appellant. On that date, he had prayed for grant of seven days’ time to produce proposed buyer of the subjected property for an amount above the reserved value and also for repaying the remaining outstanding amount. On 01.08.2019 also Mr. R.P. Singh had appeared on behalf of the appellant and had made detailed submissions. The perusal of the record thus reveals that Mr. R.P. Singh was the main counsel. It is not in dispute that the brother-in-law of Mr. R.P. Singh had expired on 11.02.2020. The learned DRT has dismissed the application on the ground that as per the Vakalatnama there were other advocates as well who could appear on behalf of the appellant, and if a lawyer/counsel is unable to appear due some
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domestic reason on a particular date, it is the responsibility of his client who is to be vigilant and should contact his counsel and take care of his case.
Learned counsel for the appellant has drawn the attention of this Tribunal to a newspaper publication regarding ‘Tiye Ki Baithak’ in respect of the brotherin-law of Mr. R.P. Singh and as per the newspaper, the ‘Tiye Ki Bathak’ was scheduled for 13.02.2020. Learned counsel submits that even thereafter rituals and meeting with the people who come for condolence continues for 13 days. He, therefore, submits that the absence of the counsel Mr. R.P. Singh on 18.02.2020, in the above circumstance, was neither deliberate nor intentional.
Keeping in view the fact that the real brother-in-law of the learned counsel Mr. R.P. Singh had expired on 11.02.2020 and the rituals and meeting with the people who come to offer their condolences continues for 13 days thereafter, this Tribunal is of the opinion that the absence of the counsel Mr. R.P. Singh before the learned DRT on 18.02.2020 was neither deliberate nor intentional and the appeal therefore needs to be allowed in the interest of justice.
In view of above, the order dated 26.02.2021 passed by the learned DRT in M.A. No.61/2020 is set aside. Consequently, the aforesaid M.A. is allowed, restoring the S.A. No.128/2019 to its original number and stage. The matter is remanded back to the DRT for further proceedings.
Learned counsel for the auction purchaser states that the auction purchaser has not been impleaded as party in the S.A. proceedings. Let the DRT decide this issue of whether or not the auction purchaser is to be impleaded as a party in accordance with law along with all other relevant issues.
Parties are directed to appear before the learned DRT concerned on 16.01.2021. Since the matter involves a substantial amount of about Rs.2.89 cr., the learned DRT is requested to take up the matter on the said date, and if not possible to take up the same on the said date, then take it up immediately thereafter, and dispose of the same as expeditiously as possible, preferably within a period of three months.
The appeal stands disposed of.
File be consigned to record.
(CHAIRPERSON)
-pk
2 issues framed by the court
Whether an appeal dismissed in default due to counsel's absence caused by bereavement should be set aside in the interest of justice.
Whether the auction purchaser needs to be impleaded in the Special Appeal proceedings.
2 provisions across 2 enactments
Ashok Kumar Mehta
Bank of Baroda
Auction Purchaser
Brijesh Sethi
As recorded by the court registry
5 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
