Misc. Appeal No. 435 of 2014. Case: Intercon Recyclopolis Pvt. Ltd. and Ors. Vs Bank of Baroda and Ors.. High Court of Bombay (India)
| Case Number | Misc. Appeal No. 435 of 2014 |
| Counsel | For Appellant: Ashish Bhagat, Mahima Pahwa and Charu Sharma, Advocates and For Respondents: R.P. Aggarwal and Manisha Aggarwal, Advocates |
| Judges | Ranjit Singh, J. (Chairperson) |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order IX Rule 13 |
| Citation | 2016 (II) BC 25 (DRAT) |
| Judgement Date | March 27, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
Ranjit Singh, J. (Chairperson)
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O.A. filed by the Bank of Baroda was allowed on 24.1.2013 for recovery of a sum of Rs. 12,21,28,879/- with interest and cost. The appellants were issued summons in the O.A. and upon their failure to appear before the Tribunal, they were declared ex parte and final judgment was pronounced on 24.1.2013. Pleading that the appellants did not receive any summons in this case, they filed M.A. No. 81/2013 before the Tribunal below for the recall of the ex parte order passed in the O.A. The Tribunal below has dismissed this M.A. on 14.10.2013 and accordingly the appellants have filed the present appeal to impugn the said order.
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The sole ground advanced by the appellants to pray for recall of the order passed in the O.A. was that they did not receive summons in the case and that the Bank did not take proper steps to serve the summons. The Counsel for the appellants has highlighted this aspect before me as well by pointing out that only a clerk of the Counsel for the Bank had filed an affidavit of service on 26.4.2012, stating that he had visited the addresses of the appellants and other defendants (defendants 1 to 4 in the O.A.) on 22.4.2012 and the persons present there had refused to take the summons. The appellants accordingly would plead that there was no proper service on them and as such they were not aware of the pendency of the O.A. The plea accordingly is that the order proceeding ex parte against the appellants would deserve to be recalled on this ground.
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Counsel would highlight certain portions of the impugned order whereby the Tribunal has presumed service on the ground that the judgment was sent by Registered Post and the same had not returned, leading to as presumption that the appellants had received the copy of the judgment. While rejecting the plea of the appellants that they came to know of the order only on 9.3.2013, the Tribunal below has taken note of the fact that the Bank had filed reply to the S.A. No. 99/12 filed by the appellants enclosing therewith a copy of the O.A. with the reply, which was served on the Counsel for the appellants on 10.10.2012. As observed by the Tribunal, this would show that the appellants had the knowledge of the O.A. at least on 10.10.2012. The Tribunal has held that this would show that the appellants did not take any action to appear and participate in the O.A. for which there is no reasonable explanation.
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It is also observed that the judgment was passed on 24.1.2013, copy of which was despatched to the defendants on 1.2.2013. Since this copy was despatched by Registered Post which had not returned, the Tribunal drew a presumption that the appellants had received the copy of the judgment and so disbelieved the plea of the appellants that they came to know about the O.A. only on 9.3.2013.
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The appellants had filed the application for the recall of the order on 13.5.2013, which was termed as belated and explanation furnished in the I.A. was also found not satisfactory.
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Undoubtedly, the Tribunal below has placed reliance on the affidavit filed by the clerk of the Counsel. The copy of this affidavit has been placed on record. In para 3 of this affidavit, the deponent clerk has stated as under:
3. I say that on behalf of and under instructions from Bank of Baroda, Asset Recovery Management Branch, Parliament Street, New Delhi-110001, visited the respective addresses of defendant Nos. 1 to 4 on 20.4.2012, I further say that at all the addresses the persons present at the respective address refused to take/receive the notice despite being informed of the fact that the notices were issued by this Hon'ble Tribunal in O.A.
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The Counsel for the appellants would submit that there is no indication as to who all were found present at the respective addresses. The affidavit does not make mention about the names of the person who had refused to accept the notices. The deponent thereafter states to have affixed the notices on the wall of the entrance of the said addresses. The deponent filing the affidavit has also stated that he had posted the notices at the addresses of the...
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