Dismissed

Anirudhan v. Anila Peter

DRT17 Jul 2024MA/156/2023

Case brief

AI extract

What is this about?

The Tribunal considered a Miscellaneous Application to set aside an ex parte final order in an Original Application. Finding the petitioners aware of proceedings through their former counsel and having failed to act during the interim delay, the Tribunal dismissed the petition.

What did the court decide?

The petition MA No. 156/2023 is dismissed, and the ex parte final order of 13.06.2023 stands unmodified.

Anirudhan versus Anila Peter — Civil Procedure and Limitation | DRT (2024)

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Fair order

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IN THE DEBTS RECOVERY TRIBUNAL-1 AT ERNAKULAM

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DATED THIS 17^th DAY OF JULY, 2024

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PRESENT: Su. WILLYAHM, B.Sc., M.L. [DISTRICT JUDGE - Retd] PRESIDING OFFICER

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MA No. 156/2023

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in OA No.153/2021

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Between

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Suresh Babu P.K. S/o. Kandankutty Pattanchira House Pudunagaram, Palakkad – 678 503

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Remya R. W/o. Suresh Babu P. K. Pattanchira House Pudunagaram, Palakkad – 678 503

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Kandankutty S/o. Ponnu Pattanchira House

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Pudunagaram, Palakkad – 678 503

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Madhavi

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W/o. Kandankutty Pattanchira House Pudunagaram, Palakkad – 678 503

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Anirudhan

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S/o. Ramachandran Perumbadayi Kalam Vadavannur, Palakkad District – 678 505

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---Petitioners/Defendants

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MA 156/2023 in OA 153/2021

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And

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The Federal Bank Limited, Registered office, Aluva, Branch Pudunagaram, Palakkad District – 678 503.

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---Respondent/Applicant bank

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This Miscellaneous application coming on 24.06.2024 for final hearing before me in the presence of Ms. Anila Peter, Advocate for Petitioners/Defendants and Mr. Madhusoodanan, Advocate for Respondent/Defendant and upon hearing the arguments of Counsels for both sides’ and upon perusing the materials on record and having stood over for consideration till this day, this Tribunal delivered the following:

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O R D E R

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MA No.156/2023 in OA No.153/2021 :- This petition has been filed praying to set aside the order dated 13.06.2023 and permit the petitioners to contest the case on merit.

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The counsel appearing for the petitioners submitted that the 1^st petitioner after receipt of the notice from this Tribunal entrusted the case to his earlier counsel Mr. Renjith R. Nair who assured him that he would contest the case on behalf of the 1^st petitioner and that the 1^st petitioner was under the bonafide belief that his counsel would handle the case and inform him whenever his presence was necessary and that he came to know of passing of the exparte order on 03.07.2023 and that his Advocate did not file vakalath executed by the petitioners and also the written statement and that his earlier Advocate cheated him and that the petitioners may be permitted to contest the case on merits and that therefore, exparte final order dated 13.06.2023 may be set aside.

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Per contra, it is submitted by the counsel for the respondent that the petitioners did not appear before this Tribunal on receipt of the summons and that the averment of the 1^st petitioner that he visited the office of Advocate Renjith five times after filing of the OA is false since the affidavit of the 1^st petitioner is silent as to which dates he visited the office of the earlier Advocate and that the averment of the 1^st petitioner with regard to his constant telephonic conversation with his earlier Advocate itself shows that the 1^st petitioner was fully aware of the proceedings of the OA and that the proceeding sheet dated 06.01.2022 of the Registrar Court would show that his earlier Advocate filed vakalath for the 1^st petitioner and that therefore, the averment of the 1^st petitioner that vakalath executed by him was not filed in this Tribunal is also false and that allegation of the 1^st petitioner with regard to the cheating by his earlier Advocate is levelled now only for the purpose of this case and that recovery proceedings are pending before

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Page 2 of 3

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MA 156/2023 in OA 153/2021

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the Recovery Officer of this Tribunal and that the outstanding amount is more than Rs.85 Lakhs and that therefore, the petition is liable to be dismissed with the cost on this respondent.

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It is noticed from the perusal of the proceeding sheets that the 1^st petitioner who is the 1^st defendant in the OA was served with summons sent from this Tribunal and that one Advocate by name Mr. Renjith R. Nair filed vakalath for the 1^st petitioner alone on 12.11.2021. Hence, the contention of the 1^st petitioner that his Advocate did not file vakalath for him is absolutely false. However, the petitioners 2 to 5 who are the defendants 2 to 5 in the OA failed to appear before this Tribunal either in person or through their counsel, though they have been served with summons sent from this Tribunal. Since the written statement of the 1^st petitioner was not filed and written statement of the petitioners 2 to 5 was also not filed, in spite of granting sufficient opportunity, the petitioners were set exparte on 03.10.2022.

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Though the petitioners were set exparte on 03.10.2022, final order was passed only on 13.06.2023 i.e. to say after a lapse of 8 months. But these petitioners failed to take steps to set aside the exparte order passed against them during the aforesaid 8 months period. It appears that the petitioners have approached this Tribunal with this petition only after receipt of the notice of the recovery proceedings from the Recovery Officer of this Tribunal. The allegation of the petitioners that their earlier Advocate cheated them appears to be false. The averment of the 1^st petitioner in his affidavit with regard to his constant telephonic conversation with his earlier Advocate is sufficient to hold that the 1^st petitioner and the other petitioners ought to have been aware of the proceedings of the OA pending before this Tribunal. Hence, this Tribunal is unable to accept the contentions of the petitioners that the 1^st petitioner was under the bonafide belief that his earlier counsel would handle the case and inform him if his presence was felt necessary. There is no bonafide in the averments of the 1^st petitioner for their failure to file the written statement and contest the case. Therefore, this Tribunal does not find any merits and grounds to set aside exparte final order dated 13.06.2023 in the OA.

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Resultantly, this petition MA No. 156/2023 stands dismissed.

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Dictated to Steno, taken down, transcribed, typed by her, corrected and pronounced by me in the Open Court, on this the 17^th day of July, 2024.

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[Su. WILLYAHM] PRESIDING OFFICER

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Page 3 of 3

Anirudhan v. Anila Peter

Case brief

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Anirudhan v. Anila Peter

Case brief

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