1. This appeal impugns the order dated 04.03.2011 passed by the Learned Presiding Officer, DRT Madurai in IA No.299/2010 in IA No.1031/2009 in TA No.57/209.
2. The case of the appellant may be stated as follows:
The appellant is the 8th defendant in TA No.57/2009 filed by the first respondent bank for the recovery of a sum of Rs.33,01,573.31. The said TA was allowed ex-parte on 22.11.2007 by DRT Coimbatore and DRC No.90/2008 came to be issued.
It is stated by the appellant that when he came to know about the exparte decree passed against him he filed IA No.1031/2009 to condone the delay of 251 days in filing the petition to set aside the exparte decree, IA No.1032/2009 to set aside the exparte decree and IA No.1033/2009 for a stay of all proceedings under the DRC till the disposal of the above three IAs.
It is stated in view of the establishment of DRT Madurai the Recovery Proceedings pertaining to the above case stood transferred to DRT Madurai and the Recovery Officer, DRT Madurai also brought the property for sale.
It is stated that this being so the appellant filed W.P. No.711/2009 on the file of the Hon’ble High Court of Madras (Madurai Bench) and the Hon’ble High Court was pleased to dispose the same on 25.3.2009 with a direction issued to the appellant to deposit a sum of Rs.5 lakhs with the Recovery Officer within three days from the date of the order and also was pleased to pass orders staying the confirmation of sale till disposal of the IAs by the DRT.
It is stated that subsequently the IAs were taken up by DRT Madurai and the respondent bank also filed its counter. It is averred that the appellant was in touch with the Advocate in Coimbatore Madurai Madurai
It is stated that the said fact came to the notice of the appellant when he received a notice from the Recovery Officer requiring him to show cause as to why the sale should not be confirmed and the sale certificate issued. It is stated that thereafter the appellant contacted the Advocate at Madurai
It is stated that the Ld. Presiding Officer, DRT Madurai by his order dated 4.3.2011 has dismissed IA No.299/2010 filed for restoration of IA No.1031/2009 which IA was filed for the condonation of the delay of 251 days in filing the IA to set aside the exparte decree. It is stated that the Ld Presiding Officer has dismissed the IA without giving any opportunity to the appellant to contest the case and prayed that the appeal be allowed.
3. The appellant filed the list of dates and events and the same forms part of the record. The appellant relied upon the following judgments in support of his contentions:
(i) Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and Another: 1993 Supp (3) SCC 256.
(ii) Judgment of the Hon’ble Supreme Court dated 2.12.1997 made in Malkiat Singh and Another Vs. Joginder Singh and others.
4. The first respondent filed written objections to the appeal and the written arguments and the same form part of the records. The first respondent relied upon the following judgments in support of its contentions:
(i) Indian Bank Vs. ABS Marine Products (P) Ltd:(2006) 5 SCC 72.
(ii) Mahabir Singh Vs. Subhash and others: (2008) 1 SCC 358.
(iii) Sunil Poddar and Others Vs. Union Bank of India
5. The 2nd respondent filed his written submissions and relied upon the following judgments in support of his contentions:
(i) Subbulakshmi Vs. Punjab and Sind Bank and others: 2010 (5) CTC 786.
(ii) Sankaralingam and Another Vs. V. Rahuraman 2002 (3) CTC 13.
(iii) Union Bank of India Coimbatore
(iv) Sunil Poddar & Ors. Vs. Union Bank of India
(v) Cancer Care Trust Research Foundation Vs. Bank of Barod and Others: III (2007) BC 564.
(vi) Adhimoolam and Others Vs. Indian Bank Chennai and others: (2008) 6 MLJ 1155.
(vii) Subhash Kathuria Vs. Deve Sugars Limited and 02 others: (2009) 4 MLJ 83.
(viii) Janatha Textiles & Others Vs. Tax Recovery Officer and Another: 2009 (2) LW 108.
(ix) Jayan vs. Hong Kong and Shanghai Banking Corporation Ltd.: IV(2009) BC 635.
6. Heard the Ld. Counsel.
7. A reading of the affidavit of the petitioner filed in support of IA No.299/2010 before the Tribunal below reveals that the petitioner has stated in paragraph 5 of the said affidavit that due to business affairs he was out of the State of Tamilnadu from 25.1.2010 to 15.2.2010 and that he had lost his mobile phone and hence his counsel could not contact him and get instructions to get alongwith the enquiry on 5.2.2010 and that therefore his counsel reported “no instructions” on 5.2.2010 and the Tribunal below dismissed all the applications for default on 5.2.2010.
8. The loss of the mobile phone, the inability of the Ld. Counsel for the appellant to contact the appellant on account of the loss of mobile phone of the appellant cannot at any rate be stated as reasons for the Ld. Counsel for the appellant for reporting no instructions as it is common knowledge that a client can always contact the Advocate at any time and from any place in case the Advocate was not in a position to contact his client.
The Ld. Presiding Officer has considered all the events that had taken place right from 27.9.2007 i.e., the date on which the petitioner was initially set ex-parte in the TA and has properly analyzed the same in his order and has also arrived at the correct conclusion that the affidavit filed in support of the appellant’s case does not support the case of the appellant and has correctly dismissed IA-299/2010 and therefore this tribunal is driven to conclude that the order of the Ld. Presiding Officer warrants no interference and accordingly the order of the Ld. Presiding Officer is confirmed.
9. In the result the appeal is dismissed.
IA 409/2011 (Stay): MA is dismissed today. Hence this IA is also dismissed.
This judgement was delivered on 14 th Mar 2012 by the Honble Chair Person of DRAT Chennai
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