The Tribunal dismissed an application seeking to set aside an ex parte order, holding that since the respondent failed to appear despite notice and opportunity, the order was heard on merits and not passed ex parte.
The application seeking to set aside the order dated 21.6.2024 was dismissed.
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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON
Misc. Application Diary No. 724 of 2024 (Arising out of Misc. Appeal No. 16 of 2024 in O.A. 912 of 2016 at DRT, Visakhapatnam)
| Order No. 14 | ||
|---|---|---|
| 13.11.2024 | Lazarus Hospitals P & 6 Others -Vs- |
rivate Limited … Appellant |
| M/s. Pridhv |
i Asset |
|
| Reconstruction& | Securitization | |
| Company Limited | ||
| … | Respondents |
Mr. Sreyash Basu Dasgupta, Learned Counsel for the Appellant
THE APPELLATE TRIBUNAL :
For Admission
This application is for setting aside the ex parte order dated 21st June, 2024 passed by this Tribunal allowing Misc. Appeal No. 16 of 2024.
Heard the Learned Counsel for Applicant at the stage of admission and perused the record.
As will appear from the records,
Misc. Appeal No. 16 of 2024 was listed for hearing on 21.6.2024. On the date fixed, Learned Counsel for Appellant was present but despite service none appeared for the Respondents. It is further recorded in the judgment that on 19.4.2024 one Ms. Swarnali Dutta appeared for Respondents No. 1, 2 and 3 and she undertook to file Vakalatnama but neither any Vakalatnama was filed nor the Respondents were present or represented on the date of hearing of the appeal. Consequently, since sufficient opportunity was
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accorded to the Respondents for hearing but they did not avail the same, appeal was heard on merits and was allowed by judgment and order dated 21.6.2024.
Learned Counsel for Applicant submits that he has filed this application under Section 22 (g) of the Recovery of Debts And Bankruptcy Act, 1993 which provides that Appellate Tribunal have the powers to set aside any order of dismissal or any application for recall or any order passed by it ex parte. As far as applicability of this provision is concerned, it was not an order which was passed ex parte rather full opportunity was granted to the Respondents to contest the same but they chose not to appear and contest the appeal. It cannot be left to the sweet will and pleasure of the party either to appear or not to appear and thereafter move an application for recalling of the judgment. When the judgment was delivered on merits, after considering the records, Applicant now cannot say that this was an ex parte judgment or opportunity of hearing was not given to them.
In such circumstances, I do not find the application to be maintainable and is accordingly dismissed.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
File be consigned to Record room.
Order dictated and pronounced in open Court.
(Anil Kumar Srivastava,J) Chairperson
Dated: 13th November, 2024
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01/ac
1 issue framed by the court
Whether an application under Section 22(g) of the RDB Act is maintainable to set aside an order that was heard on merits after the respondent failed to appear despite due notice.
Lazarus Hospitals P& 6 Others
M/s. Pridhvi Asset Reconstruction & Securitization Company Limited
Anil Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
