ORDER
K.S. Kumaran, J. (Chairman)
1. The appellants herein are the defendants in O.A. 1113/95 before Debts Recovery Tribunal-I, Delhi (hereinafter referred to as DRT). An ex parte final order was passed against the appellants on 21.6.2001. The appellants filed an application to set aside the said ex parte final order, which was dismissed by the learned Presiding Officer of the DRT by his order dated 4.12.2001. Aggrieved, the defendants have come forward with this appeal. A suitable reply has been filed by the respondent-Bank opposing this appeal.
2. Heard Counsels for both the sides and perused the records.
3. The learned Counsel for the appellants contends that the appellants had engaged Mr. Vivek Sharma to defend them in the OA before the DRT, but, on 31.5.2001. Mr. Praveen Sharma appearing for the defendants had stated that the Counsel for the defendants was seeking discharge from the case as the defendants had stopped instructing him, and that he had also sent a letter to the defendants on 17.5.2001. The learned Counsel for the appellants also points out that on 31.5.2001, the learned Presiding Officer of the DRT ordered that Mr. Praveen Sharma be discharged, and as there was none present on behalf of the defendants, the defendants were proceeded ex parte. The learned Counsel for the appellant also contends that subsequently, on 21.6.2001, the learned Presiding Officer of the DRT passed the final orders, which were not communicated to the appellants/defendants at all. According to the learned Counsel for the appellants, one of the appellants, viz., Rajiv Chug contacted the Counsel on 18.7.2001 to enquire about the proceedings, but, he was not given a satisfactory reply and, therefore, the defendants/appellants moved an application by engaging another Counsel Mr. Rajesh Kalra for inspection of the file, which was allowed on 20.7.2001. The learned Counsel for the appellants contends that it was only at that time the Counsel came to know about the orders passed on 31.5.2001 and the final order of 21.6.2001. The learned Counsel for the appellants contends that prior to 31.5.2001 there were no effective hearings before the DRT. According to him, on 4.4.2000 the Advocates were on strike and, therefore, the case was adjourned to 24.8.2000 and on 24.8,2000 the matter was adjourned to 4.1.2001 as the Presiding Officer was busy in other administrative work. He also contends that on 4.1.2001 the matter was adjourned as the Presiding Officer had received orders of transfer. The learned Counsel for the appellants also contends that the appellants had been told to come only when they were required to come.
4. The learned Counsel for the appellants further contends that the notice dated 17.5.2001 allegedly sent by the previous Counsel was not at all received by the appellants, and the said notice appears to have been sent deliberately to a wrong address. The learned Counsel for the appellants contends that the alleged notice is stated to have been sent to No. 260, Phase-IV, Udyog Vihar, Gurgaon and No. 2055, Sector-IV, Urban Estate, Gurgaon, whereas, the appellants are neither owners nor residents of those premises. The learned Counsel or the appellants under these circumstances, contends that there is no proof to show that such a notice was served on the appellants, and in the absence of such proof and in these circumstances, the appellants should have been given an opportunity to defend the case, and the ex parte final order should have been set aside. The learned Counsel for the appellants also relies upon the decision of the Hon’ble Supreme Court in Sushila Narahari v. Nandakumar, (1996) 5 Supreme Court Cases 529, in support of his contention that where the Advocate had derelicted his duty to inform the client by the registered post, if there was non-cooperation from the appellants, the ex parte decree should be set aside.
5. The learned Counsel for the respondent, on the other hand, contends that the suit was filed on 27.12.1995 and the pleadings were completed on 8.10.1996. She points out that the appellants filed an application for amendment of Written Statement on 13.5.1997 which was dismissed on 19.2.1998, and that the Bank’s evidence was completed. She also contends that date was fixed for the evidence of the defence when the defendant-appellants filed another application for amendment of the Written Statement, which was also dismissed in the year 2000. She, therefore, contends that the intention of the appellants is only to drag on the proceedings as much as possible. She also contends that the appellants have not taken any action against the previous Counsel for having sent the notice to a wrong address, and there is also nothing to show that the notice was not served. Therefore, she contends that there are no grounds to interfere with the orders of the DRT. The learned Counsel for the respondents also relies upon the decision of the Hon’ble Supreme Court in Salil Dutta v. T.M. and M. C. Private Ltd., (1993) 2 Supreme Court Cases 185, wherein it was held that the improper advice given by the Advocate cannot be a sufficient cause for the non-appearance of the defendant. She also relies upon the decision in Gloria Chemicals v. R.K. Cables, AIR 1998 Delhi 213, in support of her contention that the negligence of the Counsel by itself is not a sufficient cause. The learned Counsel for the respondent also relies upon the decision in Muni Lal v. Gopichand and Sons, 1977 Revenue Law Reporter 58, in support of her contention that the defendants are not absolved from their responsibility to appear before the Court simply because they had engaged a Counsel.
6. But, in my view these decisions are distinguishable and do not apply to the facts of the present case. Because, in this case, prior to 31.5.2001 there were three hearings (4.4.2000, 24.8.2000 and 4.1.2001) only spread over a period of one year. The Presiding Officer had also been transferred as is seen from the order dated 4.1.2001. Therefore, it is probable that the defendants were asked to come as and when required, since there were no effective hearings.
7. Though it is stated that the previous Counsel had sent notice on 17.5.2001, there is no material to show that the same was served upon the appellants/defendants. This alleged notice was sent to two addresses. But, the contention of the appellants is that they are neither the owners nor residents of those two premises. This fact is not disputed by the learned Counsel for the respondent. Further, the Counsel for the appellant also contends that with regard to these properties certain interim orders were passed by the DRT but they were vacated once it was shown that these properties did not belong to the appellants. A reference to this aspect has also been made in paragraphs (I) and (J) of the memorandum of appeal. Therefore, it is seen that there is no material to show that the notice allegedly sent by the erstwhile Counsel for the defendants/appellants was served upon them. It is also seen that there was no effective hearing before 31.5.2001, as pointed out by the learned Counsel for the appellants, about which I have referred to already. Therefore, it is quite probable that the defendants/appellants were required to come as and when their presence was required. When a Counsel appearing for the parties reports no instructions and had taken discharge in the circumstances of the case like this, interests of justice require that the defendants/appellants should have been given an opportunity to defend their case. Of course, the defendants are not expected to sit and relax at their home, and are bound to enquire about the fate of their case but, I have already pointed out that prior to 31.5.2001, i.e. between 4.4.2000 and 4.1.2001, there was no effective hearing due to the strike of lawyers, the Presiding Officer having been engaged otherwise, and the Presiding Officer having been transferred. This probablises the contention of the appellants that they were asked to come as and when required. In these circumstances, when there was no material to show that the notice allegedly sent by the erstwhile lawyer was served upon the appellants/defendants, that too when the notice had not been addressed to the correct address of the defendants, the non-appearance of the defendants can be said to be due to sufficient cause.
8. Of course, the learned Counsel for the respondent-Bank points out that the appellants/ defendants previously filed two applications for amendment of Written Statement and contends that their past conduct shows their intention to drag on the proceedings as much as possible. But in the circumstances pointed out, this can be a ground for compensating the respondent by directing the appellants to pay them certain amount as costs. Interests of justice require that the appellants should be given an opportunity to defend their case.
9. In these circumstances, the appeal deserves to be allowed and is, accordingly, allowed. The order of the Debts Recovery Tribunal-I, Delhi dated 4.12.2001 dismissing the Miscellaneous Application 39/2001 for setting aside the ex parte final order is set aside. The said application will stand allowed setting aside the ex parte final order dated 21.6.2001. But, the appellants are directed to pay Rs. 5,000/- as costs to the respondent-Bank.
Copy of this order be furnished to both sides and also be forwarded to the concerned DRT.