ORDER
Miscellaneous Appeal 244/2000 and Miscellaneous Application 137/2002
K.S. Kumaran, J. (Chairperson)
1. Heard learned Counsels for both the sides, and perused the records.
2. This appeal is directed against the impugned order dated 10.7.2000 passed by the learned Presiding Officer of the Debts Recovery Tribunal, Jaipur (hereinafter referred to as ‘the DRT’) declining the request of the appellant (who was 3rd defendant before the DRT in O.A. 45/95) to set aside the ex parte final order passed on 18.6.98.
3. The contention of the appellant/3rd defendant is that he was not served with the summons/notice in the O.A. but he came to know of the proceedings in the O.A. on 15.12.99 when he went to the respondent-Bank and met an official of the Bank, who showed him the copy of the ex parte final order. The learned Counsel for the appellanl/3rd defendant contends that the appellant/3rd defendant had filed the application dated 11.1.2000 i.e., within 30 days from the date of knowledge, before the DRT to set aside the ex parte final order. The learned Counsel for the appellant/3rd defendant also contends that the appellant/ 3rd defendant has specifically pleaded in his application before the DRT that the appellant/ 3rd defendant was not living at House No. 1770/9, Faridabad, which was the address given in the O.A., but he had shifted to Raipur (Madhya Pradesh) somewhere in 1994 itself and, therefore, he had not been served with the notice/summons in the O.A.
4. The learned Counsel for the appellant/3rd defendant contends that the learned Presiding Officer of the DRT, after having sent the notice to the appellant/3rd defendant at the Faridabad address, and on noticing that the envelope containing the notice/summons sent to him had not returned, deemed that the appellant/3rd defendant was served with the notice/summons are set him ex parte on 11.6.96 and ultimately passed the ex parte final order on 18.6.98. The learned Counsel for the appellant/3rd defendant also points out that in support of his contention that the appellant/3rd defendant had shifted to Raipur, he had filed a communication from Haryana Financial Corporation dated 11.8.95 which was sent to the appellant/3rd defendant to his Raipur address. But, the learned Presiding Officer of the DRT in this impugned order observed that this lone document cannot be accepted as a reliable evidence, and that even the original of the said document had not been filed.
5. That is why the appellant/3rd defendant has now filed Miscellaneous Application 137/2002 for taking on record certain documents by way of additional evidence. Notice of this application was given to the 1st respondent – Bank and the 1st respondent-Bank has filed a suitable reply opposing this application. The learned Counsel for the 1st respondent – Bank objected to the reception of these documents on record urging that there was no ground for not producing these documents before the DRT itself inasmuch as these are documents which were in possession of the appellant/3rd defendant, and that no satisfactory reason has been given for not producing them before the DRT itself while the application for setting aside the ex parte final order was being considered by the DRT. But, the learned Counsel for the appellant/3rd defendant relies upon various decisions including the decision of the Hon’ble Supreme Court in State of Rajasthan v. T.N. Sahani and Ors., VIII (2000) SLT 7=JT 2000 (Suppl. 3) SC 90, in support of his contention that this Tribunal can permit the additional evidence to be introduced. The Hon’ble Supreme Court held as follows:
“It may be pointed out that this Court, as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy, AIR 1963 SC 1526, pointed out the scope of unamended provision of Order 41, Rule 27(c) that though there might well be cases where even though the Court found that it was able to pronounce the judgment on the state of the record as it was, and so, it could not require additional evidence to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the Court to consider, at the time of hearing of the appeal on merits, whether the documents which are sought to be filed as additional evidence, need to be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the Court to look into the documents and for that purpose, amended provision of Order 41, Rule 27(b), C.P.C. can be invoked. So the application under Order 41, Rule 27 should have been decided along with the appeal.”
The learned Counsel for the appellant/3rd defendant also relies upon the decision of the Hon’ble Orissa High Court in Chunilal Ojha v. Mul Shankar Ojha and Ors., AIR 1961 Orissa 169, in support of his contention that even if this Tribunal finds that the appellant/ 3rd defendant had not been diligent to the extent as is expected from a very careful litigant, if the interests of justice required that the additional documents should be taken on record, the same should be allowed to be placed on record. The Hon’ble Orissa High Court held as follows:
“There has thus been want of due diligence on the part of the plaintiff in respect of the second and third documents. But I think they came within the scope of “any other substantial cause” referred to in Clause (c) of Rule 27(1) of Order 41, C.P.C. quoted above.”
He also relies upon the decision in Sobhram v. Rajkumar, AIR 1959 Madhya Pradesh 118, wherein it has been held as follows:
“Regarding the expression ‘any other substantial cause,’ it was held that it confers a wide discretion on the Appellate Court to admit additional evidence when the ends of justice require it to be done.”
In Savitaben Ishverlal v. Surat Municipal Corporation, Surat, AIR 1985 Gujarat 174, the Hon’ble High Court of Gujarat held as follows:
“The power to call for additional evidence in the interest of justice is well recognised under Order 41 Rule 27 of the Civil P.C. It is not only to enable the Court to pronounce judgment but also for any substantial cause which may include when Court considers in the interest of justice that something remaining obscured should be filled up so that it can pronounce judgment in a more satisfactory manner though it may be able to pronounce the judgment in the state of record as it is [See K. Venkataramiah v. Seetharama Reddy, AIR 1963 SC 1526].”
By relying upon these decisions, the learned Counsel for the appellant/3rd defendant contends that in the interest of justice, this Tribunal should allow the documents now filed with this Miscellaneous Application 137/2002 to be placed on record as additional evidence.
6. I agree with the learned Counsel for the appellant/3rd defendant in this respect. Of course, the appellant/3rd defendant had produced only one document before the DRT in support of his contention that he was residing at Raipur at the relevant time. But, he had definitely taken the plea that he was residing at Raipur and stated that he was not served with any notice/summons in the O.A. Therefore, when the learned Presiding Officer of the DRT declined to accept this explanation given by the appellant/3rd defendant by observing that he had produced only one document, interests of justice, certainly requires that the additional documents filed by the appellant/3rd defendant to show that he has been residing at Raipur at the relevant time should be taken on record.
7. Accordingly, this Miscellaneous Application 137/2002 stands allowed, and the additional documents filed with this application are taken on record by way of additional evidence. However, in view of the fact that these documents had not been produced before the DRT, and have been produced only before this Tribunal for the first time, even though most of these documents must have been in the possession of the appellant/3rd defendant even at that time, I direct the appellant/3rd defendant to pay the 1st respondent a cost of Rs. 5,000/-.
8. From a perusal of the additional documents produced with Miscellaneous Application 137/2002, it is abundantly clear that the appellant/3rd defendant must have been living at Raipur during the relevant period. Apart from producing the certificate from his employer to the effect that the appellant/3rd defendant was working with them at Raipur from December, 1993 to 15.5.2000, and a letter from his own landlord that he (the appellant/3rd defendant) raised at Raipur from March, 1994 to 31.3.2001, the appellant/3rd defendant has also produced a communication from the Life Insurance Corporation dated 4.10.96 sent to the appellant/3rd defendant to the Raipur address, the telephone bills dated 14.3.2000 and 7.3.2000, the copy of the envelope sent by the Life Insurance Corporation bearing the postal seal dated 3.10.97, the copy of a letter from M/s. Birla Consultancy and Software Services dated 8.5.96 apart from the letter dated 11.8.95 from the Haryana Financial Corporation which all go to show trial the appellant/3rd defendant must have been residing at Raipur when he was set ex parte on 11.6.96 and when the ex parte final order was passed in the year 1998.
9. Of course, the learned Counsel for the 1st respondent-Bank points out that in the letter dated 11.8.95 sent by the Haryana Financial Corporation it has been mentioned that a copy of the letter was marked to the Faridabad address of the appellant/3rd defendant. The learned Counsel for the 1st respondent-Bank also points out the averments in the present appeal itself wherein the appellant/3rd defendant has stated that his family was living in Faridabad. He, therefore, contends that the notice sent to the Faridabad address should have been served upon either the appellant/3rd defendant or any other adult member of his family and, therefore, the learned Presiding Officer of the DRT was right in deeming that the appellant/ 3rd defendant was served. May be the family of the appellant/3rd defendant was living in Faridabad, but the appellant/3rd defendant has been living only at Raipur is evident from the overwhelming documentary evidence produced by the appellant/3rd defendant. There is no material before this Court to show that there was any adult male member in the family of the appellant/3rd defendant who was living Faridabad on whom the notice could have been and was served.
10. In these circumstances, unless and otherwise it is shown that the notice/summons relating to the O. A. was sent to the proper address, namely, the address where the appellant/ 3rd defendant was living, it cannot be deemed that the appellant/3rd defendant was served simply because the envelope had not returned back. Therefore, in these circumstances, I am of the view that the conclusion of the learned Presiding Officer of the DRT that the appellant/ 3rd defendant should be deemed to have been served and, therefore, the ex parte final order passed against the appellant/3rd defendant cannot be set aside, cannot be sustained.
11. Of course, the learned Counsel for the 1st respondent – Bank contends that though the appellant/3rd defendant claims that on 15.12.99 he was summoned by the Bank and was shown the copy of the ex parte final order, there is no material to support the same. He contends that even the name of the official who allegedly showed him the order has not been mentioned. He contends that it is seen from the records of the DRT that the copy of the final order was sent to the appellant/3rd defendant to the same address as mentioned in the notice/ summons and, therefore the appellant/3rd defendant must have been served with the copy of the ex parte final order also. But, I have already pointed out that the appellant/3rd defendant was residing at Raipur and, therefore, by sending the notice/summons to the Faridabad address, it canto be deemed that the appellant/3rd defendant was served merely because the notice sent to him had not been received back. For the same reason, it cannot be said that the appellant/3rd defendant was served with the copy of the final order also. In these circumstances, the explanation given by the appellant/3rd defendant that he had come to know of the ex parte final order from an official of the respondent-Bank, in my view, can be accepted, although, he had not mentioned the name of the official.
12. Once it is seen that the appellant/3rd defendant came to know of the ex parte final order on 15.12.99 only, the application dated 11.1.2000 to set aside the same will be within time. Therefore, it cannot be said that the said application is also delayed or barred by time.
13. Taking into consideration all these aspects, I am of the view that the ex parte final order will have to be set aside and the appellant/3rd defendant will have to be given opportunity of having his case decided on merits. But, taking into consideration the fact that the ex parte final order was passed on 18.6.98 itself and the unnecessary expenses and inconvenience to which the 1st respondent-Bank has been put, I am of the view that the appellant/3rd defendant should be directed to pay a cost of Rs. 30,000/- to the 1st respondent-Bank.
Miscellaneous Application 137/2002
14. As indicated already, this application stands allowed and additional documents filed with this application are taken on record by way of additional evidence. As indicated already, the appellant/3rd defendant shall pay the cost of Rs. 5,000/- to the 1st respondent-Bank.
Appeal 244/2000
15. Appeal is allowed, setting aside the impugned order dated 10.7.2000 dismissing the application of the appellant/3rd defendant to set aside the ex parte final order.
16. The application filed by the appellant/3rd defendant to set aside the ex parte final order will stand allowed, and the ex parte order passed against the appellant/3rd defendant will stand set aside.
17. The appellant/3rd defendant, as indicated above, shall pay the cost of Rs. 30,000/- to the 1st respondent-Bank.
18. The learned Counsel for the appellant/3rd defendant states that now the jurisdiction over the subject-matter of the O.A. vests with the DRT, Chandigarh and, therefore, he states that the matter has to be sent to the Debts Recovery Tribunal, Chandigarh, for further proceedings.
19. Therefore, the Presiding Officer of the DRT, Chandigarh will take the O.A. on his file (if necessary, by assigning a new appropriate O.A. No. also) as against the appellant/ 3rd defendant. He shall give an opportunity to the 3rd defendant to file his written statement and then dispose off the O.A. after giving both sides a reasonable opportunity of producing evidence and of hearing in accordance with law and in the light of the observations contained in this order.
20. For this purpose, the appellant/3rd defendant and the 1st respondent – Bank are directed to appear before the DRT, Chandigarh on 28.11.2003 for taking further directions in this matter from the said DRT, without awaiting any further notice from the said DRT.
21. It is made clear that the appellant/3rd defendant should pay the costs imposed on him well in advance and also file the written statement without any undue delay and cooperate with the DRT for the early disposal of this matter. Parties have assured before me that they will render their assistance and co-operation for the disposal of the case within four months from the date on which they appear before the DRT. Accordingly, the learned Presiding Officer of the DRT, after observing all the formalities and after giving the necessary opportunity to both sides shall dispose off the O.A. within four months from the date on which the parties are directed to appear before him, namely, 28.11.2003.
22. Records of the; DRT which are with this Tribunal be forwarded to the DRT, Chandigarh.
Miscellaneous Application 330/2003
23. Notice to the 1st respondent – Bank only. Mr. M. Dutta states that notice to the other respondents need not be issued as they are formal parties and may be dispensed with. Ordered accordingly. Mr. I.P. Singh takes notice on behalf of the 1st respondent-Bank and seeks time to file reply. Mr. M. Dutta states that he will furnish a copy of this application to Mr. I.P. Singh today itself. Let him do so.
24. However, since I have taken up the appeal itself for hearing, and since I have pronounced the order today itself disposing of the appeal, this application which is for stay of the proceedings before the Recovery Officer, is disposed of as unnecessary.
25. Copy of this order be furnished to the appellant/3rd defendant and the respondents. Copies of this order be also forwarded to the DRT, Chandigarh and DRT, Jaipur and the Recovery Officer concerned.