Dismissed

Karur Vysya Bank v. Nimisha Menon

DRT14 Jul 2022MA/171/2022

Case brief

AI extract

What is this about?

Debts Recovery Tribunal dismissed a petition seeking restoration of the original application, holding that it is illegal under Andhra Pradesh High Court precedents to file an affidavit supporting the petition solely by the applicant's advocate rather than the party.

What the court decided

AI extract

Karur Vysya Bank versus Nimisha Menon — Civil Procedure and Limitation | DRT (2022)

¶1

Fair Order

¶2

IN THE DEBTS RECOVERY TRIBUNAL - 1 AT ERNAKULAM

¶3

DATED THIS 14^th DAY OF SEPTEMBER, 2022

¶4

PRESENT: Su. WILLYAHM, B.Sc., M.L.

¶5

[DISTRICT JUDGE - Retd] PRESIDING OFFICER

¶6

M.A No. 171 of 2022

¶7

¶8

O.A No. 27 of 2021

¶9

Between

¶10

The Karur Vysya Bank Ltd. Represented by its Manager, Vellan Street, Sulthanpet, Palakkad, Pin-687801.

¶11

--- Petitioner/Applicant

¶12

And

¶13

Mrs. Nimisha Menon, 12/582 Vismayam Near Sreekrishna Temple, Vadakkethara, Palakkad, Pin -678008.

¶14

A. Arun Kumar, Itteampurath House, KRA 24, Karshaka Nagar, Panamukku Nedupuzha P.O., Thrissur – 680007.

¶15

--- Respondents/Defendants

¶16

This petition coming on 01.08.2022 for hearing before me in the presence of Mr. P.S. George, Advocate for the Petitioner/Applicant and upon hearing arguments of learned counsel for the petitioner/applicant and upon perusing the material records, this Tribunal delivered the following:

¶17

MA No.171/2022 in OA 27/2021

¶18

¶19

O R D E R

¶20

M.A No. 171/2022 in OA No.27/2021 :- This petition has been filed praying to restore O.A. No.27/2021 to file.

¶21

The counsel for the petitioner bank submitted that since he was not well due to Dengue related ailments, he had deputed his clerk Mr.Jayachandran, to be present before this Tribunal in order to make arrangement for representation on his behalf on 21.07.2022 through some other counsel and that due to traffic block, his clerk reached this Tribunal only after the case was called and that O.A. was dismissed for default due to non-appearance of counsel and for not taking steps to serve summons on the defendants and that counsel for the petitioner bank was able to get the address of the defendants very recently in order to send summons to the defendants after necessary orders from this Tribunal and that there was no willful default or omission on his part and that therefore this petition may be allowed for restoration of the O.A to file.

¶22

The above Original Application, O.A. No.27/2021 has been filed by the petitioner bank against the respondents for recovery of outstanding loan due and to bring the movable properties for sale, in case of default to repay the loan due. The petitioner bank was directed by this Tribunal on 21.01.2021 to serve summons to the respondents. It was being adjourned to various dates for service of summons to the respondents; since no step was taken by the petitioner bank, this Tribunal was constrained to pass an order of dismissal of O.A for want of compliance on 21.07.2022. Hence this petition has been filed to restore the O.A. to file.

¶23

The petitioner bank has failed to file the affidavit and petition to get the aforesaid relief. The counsel, who is appearing for the petitioner bank has filed this petition along with affidavit. In ( 2003 KHC 3161) Pasupuleti Subba Rao v. Nandavarapu Anjaneyulu, the Honourable High Court of Andhra Pradesh held that the practice of Advocate filing his affidavit in a petition filed under Order 9 Rule 9 CPC is totally wrong and illegal. Similarly in ( 2006 KHC 1447) Premier Chemical Industries vs. Member Convenor (M&HC) , the Honourable High Court of Andhra Pradesh has held that every petition and every miscellaneous application filed in support of writ petition or miscellaneous application has to be accompanied by an affidavit filed by petitioner or on behalf of petitioner and that an Advocate appearing for a party is not entitled to file affidavit on behalf of the party and that Advocate given vakalath can only appear in Court as per Order 3 Rule 4 of CPC and that he has no power or authority to file or sign before court except by way of third party affidavit in proof of allegation made by a party. In the light of the above decisions of the Honourable High Court of Andhra Pradesh, this Tribunal is of the view that the above laid dictum can also be made applicable to the present case on hand.

¶24

Page 2 of 2

¶25

MA No.171/2022 in OA 27/2021

¶26

¶27

In view of the foregoing reasons, this petition, M.A. No.171/2022 stands dismissed.

¶28

Dictated to Steno, taken down, transcribed, typed by him, corrected and pronounced by me in the Open Court, this the 14^th September, 2022.

¶29

[Su. WILLYAHM] PRESIDING OFFICER

¶30

Mj/-

¶31

Page 3 of 2

Karur Vysya Bank v. Nimisha Menon

Case brief

What is this about?

What the court decided

Karur Vysya Bank v. Nimisha Menon

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ms Shivraj Enterprises versus Dakshin Bihar Gramin Bank

Axis Bank versus Vinod Kumar

Bank of Baroda versus M/S Vardhaman Traders

Manhar N Kakkad versus Canara Bank and Ors.

Mr Ayodhya Prasad Jaikaran Dubey versus Bank of India

Indian Overseas Bank versus M/s Shanakar Flour Mill and Others