Appeal No. 114 of 2006. Case: P.K. Gupta and Anr. Vs I.C.I.C.I. Bank Ltd. and Anr.. Mumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals)
| Case Number | Appeal No. 114 of 2006 |
| Counsel | For Appellant: Mr. I.A. Nasikwala, Advocate and For Respondents: Mr. Rajesh Nagori, Advocate |
| Judges | S. S. Parkar, J. (Chairperson) |
| Issue | Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Section 31 |
| Judgement Date | July 31, 2008 |
| Court | Mumbai DRAT DRAT (Mumbai Debt Recovery Appellate Tribunals) |
Judgment:
S. S. Parkar, J. (Chairperson)
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The main question in this appeal is whether publication of notice of summons in a newspaper is good service. This appeal has been filed impugning the order dated 24th November, 2005 passed by the Presiding Officer, D.R.T.-III, Mumbai rejecting the application filed by the appellants for setting aside ex-parte decree passed on 6th February, 2004.
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The respondent bank had filed suit for the recovery of debts against the appellant initially in the High Court which was transferred to the D.R.T. after the RDDBFI Act came into effect. Summons were sought to be served on the appellants initially in the High Court but the registered packets are stated to have returned with the postal remarks 'left'. After the transfer of the matter to the D.R.T. notices were sent informing the appellants about the transfer of the matter but again the registered packets returned unserved with remarks 'left'. An ex-parte decree was passed on 6th February, 2004. The appellant learnt about the passing of the ex-parte decree only when the demand notices were served on the appellants on 19th July, 2004 and thereafter, the application was filed on 19th August, 2004 i.e. within a period of 30 days from the date of knowledge of the appellants about passing of the decree.
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The application for setting aside the ex-parte decree was dismissed by the DRT-III, Mumbai on the ground that there was publication of notice in the newspaper on 18th September, 2003. The Presiding Officer is of the view that since the demand notices were received by the appellants on the same address to which the registered packets of summons and notices of transfer were sent the appellants were well aware about passing of the ex-parte judgment.
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According to the Presiding Officer there was delay in filing the application which was intentional and not bona fide and the application for setting aside ex-parte decree was filed with a view to cause delay. From the observations made in para 23 of the impugned order it appears that according to the Presiding Officer there was delay in filing the application on 19th August, 2004 as the ex-parte decree was passed on 6th February, 2004. The Presiding Officer obviously has not considered the provisions of Art. 123 of the Limitation Act, 1963, under which the time limit for filing the application for setting aside ex-parte decree is of 30 days from the date of knowledge of the passing of the decree when there is no...
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