Dismissed

Social Agency for Women & Rural Development(Saward v. State Bank of India

DRT5 Jul 2024MA/223/2023

Case brief

AI extract

What is this about?

The Tribunal dismissed a petition seeking condonation of a 1671-day delay to set aside an ex-parte order. The court found no valid reasons for the inasistence, citing the petitioners' failure to appear or contact counsel throughout the original application proceedings.

What did the court decide?

The petition MA No. 223/2023 was dismissed; no costs awarded.

Social Agency for Women & Rural Development(Saward… — Execution and Attachment | 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 05^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. 223/2023 in

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OA No. 310/2011

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Between

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C. M. Sadasivan, S/o Krishnan Nair Residing at :

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Thottacherry Edathil P.O.

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Kayalam, Kozhikode – 673 661

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P. Suresh Babu S/o Kunjunni Nair Punnarambath House

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P.O. Cherukulathur, Kozhikode – 673 008

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--- Petitioners/Defendants 2 & 3

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And

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State Bank of India Represented by its Branch Manager Ramantukara Branch

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Social Agency for Women and Rural Development (SAWARD) A Society registered under the Societies Registration Act, Poovattuparambu, Kozhikode – 673 008

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--- Respondents/Applicant & 1^st Defendant

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MA No. 223/2023 in OA 310/2011

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This petition coming on 29.05.2024 for hearing before me in the presence of Mr. Santhosh G. Prabhu, Advocate for the Petitioners/Defendants 2 & 3 and Ms. Uma G. Krishnan, Advocate for 1^st Respondent/Applicant bank and upon hearing arguments of learned counsels for the parties and upon perusing the material records, this Tribunal delivered the following:

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O R D E R

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MA No.223/2023 in OA No.310/2011 :- This petition has been filed praying to condone the delay of 1671 days in filing the petition to set aside the exparte judgment dated 21.01.2019.

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It is submitted by the counsel for the petitioners that when the OA No.310/2011 was filed by the 1^st respondent bank, the petitioners were not the President and the Secretary of the 2^nd Respondent Society/1^st defendant in the OA and that when the petitioners received summons issued by this Tribunal, the petitioners approached the 2^nd respondent herein who agreed to conduct the proceedings on their behalf and that due to Covid-19 Pandemic, the petitioners could not approach the 2^nd respondent and enquire the case and that the petitioners subsequently came to know of passing of interim order of attachment of the property made by the Recovery Officer of this Tribunal in IA No. 583/2023 in DRC 29/2020 in OA 310/2011 on 04.09.2023 and that on enquiry from their counsel, they came to know that the 2^nd respondent did not make any arrangement to defend the case on their behalf and that all the defendants were set exparte on 21.01.2019 and that the petitioners could not defend their case, since they were under the impression that the 2^nd respondent would conduct the case on their behalf and that there is no willful negligence or latches on their part and that there is a delay of 1671 days in filing this petition to set aside exparte final order and that therefore, the above delay in filing the petition to set aside exparte final order may be condoned.

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Per contra, the counsel for the 1^st respondent bank submitted that this petition is not maintainable, since it was filed beyond the period of limitation and that the petitioners ought to have filed this petition when the petitioners were set exparte on 27.01.2019 and that this petition was filed after more than 11 years from the date of passing of exparte order against the petitioners and that the petitioners executed security documents in the capacity of President and Secretary of the 1^st defendant and that no further documents were submitted by them with regard to the change of Managing

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Page 2 of 4

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MA No. 223/2023 in OA 310/2011

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Committee or Executive Committee and that the averments of the petitioners that they approached the 2^nd respondent to conduct the case on their behalf is false and that however, the petitioners were aware of filing of the Original Application since they received summons sent from this Tribunal and that for the past 12 years the petitioners did not take any steps to approach this Tribunal and that they approached this Tribunal only after receiving the notice from the office of the Recovery Officer of this Tribunal and that the conduct of the petitioners would show that they willfully and wantonly avoided to defend their case and that they cannot shift their burden on the 2^nd respondent society and that even after passing of the final order, the petitioners did not take any steps to set aside the final order by approaching the Tribunal at earliest point of time and that therefore, the petition may be dismissed.

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The petitioners themselves admitted in their affidavit that they were served with summons for their appearance before this Tribunal in OA No.310/2011. It is noticed from the perusal of the proceeding sheets that on 21.10.2011 one Advocate N. Sasi entered appearance on behalf of the petitioners and sought for time to file written statement and that on 16.11.2011, 04.01.2012 and 11.01.2012 the counsel for the petitioners appeared before this Tribunal and sought further time for filing Vakalathnama and written statement of the petitioners. When the matter came up for hearing on 26.09.2012, there was no representation for the petitioners. Since Vakalathnama and written statement were not filed, the petitioners were set exparte. Therefore, the averments of the petitioners that they approached the 2^nd respondent herein and that he agreed to conduct the proceedings on their behalf is absolutely false. It is also noticed from the perusal of the records that though the 2^nd respondent who is the 3^rd defendant in the OA had appeared through his counsel, he was subsequently set exparte. The final order was passed on 25.08.2020 allowing the Original Application. it is seen from the averments of the affidavit of the petitioners filed alongwith this petition that they did not bother and care to contact their counsel in order to know the stage of the case. They filed this petition on 19.09.2023 only after they received the notice issued by the Recovery Officer of this Tribunal in DRC proceedings. The conduct of the petitioners in not taking steps either to set aside the exparte order during the pendency of the Original Application or to set aside the exparte final order soon after the disposal of the Original Application would show that they were not keen and sincere in prosecuting their case in defending their case. The petitioners have not satisfactorily explained the delay of each and every date in filing this petition. The delay is not a shorter duration but 1671 days i.e. to say more than 4½ years. This Tribunal finds

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Page 3 of 4

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MA No. 223/2023 in OA 310/2011

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that there are no valid reasons and merits to condone the delay of 1671 days in filing the petition to set aside exparte final order dated 21.01.2019.

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In the result, the petition MA No. 223/2023 stands dismissed. No costs.

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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 05^th day of July, 2024.

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[Su. WILLYAHM] PRESIDING OFFICER

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Social Agency for Women & Rural Development(Saward v. State Bank of India

Case brief

What is this about?

What did the court decide?

Social Agency for Women & Rural Development(Saward v. State Bank of India

Case brief

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What did the court decide?

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