ORDER
A. Subbulakshmy, J. (Chairperson)
1. Aggrieved against the order passed by the Presiding Officer, DRT, Ernakulam, in OA-336/1999, the appellant has preferred this appeal and while preferring the appeal there is a delay of 438 days. Counsel for the appellant submits that he filed preliminary objection before the DRT, Ernakulam, and order was passed in the preliminary objection and the appellant was waiting for receipt of the order on the preliminary objection and as such the delay has occurred and the delay has to be condoned.
2. Counsel for the respondent Bank submits that on the same day when the Presiding Officer, DRT, dismissed the preliminary objection, order in the Original Application (OA) was passed and no separate order was passed on the preliminary objection and the Counsel for the appellant was also present in the Court when the order was passed and there is no justifiable ground for condoning the inordinate delay of 438 days.
3. On a perusal of the Order it is seen that the objections filed by the defendant No. 9 on the question of jurisdiction was, taken up as a preliminary issue and the objection of D-9 was found unsustainable and so the order was passed in the main OA. The Tribunal did not give any opportunity to both sides to let in evidence. Even the Bank did not file any Proof Affidavit or examine any witness and the Presiding Officer, DRT, has proceeded to pass order without giving opportunity to the Bank also to let in any evidence.
4. Counsel for the appellant further submits that even reply statement was not filed and only preliminary objection was raised with regard to the jurisdiction before the DRT and as the reply statement was not filed and the defendant was denied opportunity of filing the reply statement and the defendant was also denied the opportunity of letting in any evidence, the order passed by the Presiding Officer, DRT, has to be interfered with.
5. When the Presiding Officer, DRT, has found that the preliminary objection raised by the defendant is not sustainable the Presiding Officer, DRT, ought to have given opportunity to the defendants to file their reply statement and after receiving the reply statement the case ought to have been posted for filing proof affidavit of the Bank and the examination of Bank witness. On the day when the preliminary objection was dismissed the Presiding Officer, DRT, hurriedly passed the order without fair trial allowing the OA stating that despite various opportunities granted to the defendants they never raised any contest regarding the suit. The defendant was not given any opportunity to file the reply statement. Counsel for the appellant defendants submits that the defendants filed Writ Petition followed by Writ Appeal before High Court of Kerala against the order passed by the Presiding Officer, DRT, Ernakulam.
6. The Presiding Officer, DRT, after dismissing the preliminary objection did not afford any opportunity to the defendant to file reply statement and on the very same day the Presiding Officer, DRT, passed order in the OA even without receiving proof affidavit and examining the Bank witness. So, I find that the order passed by the Presiding Officer, DRT, is erroneous and only under such circumstances the petition for condonation of delay of 438 days in filing the appeal has to be allowed to meet the ends of justice. Even though the submission made by the Counsel for the appellant with regard to the reason for the delay is not a convincing one and as the order was passed in the main OA without adhering to the provisions by the Presiding Officer, DRT, I find that ends of justice would meet only if the delay is condoned and opportunity given to the appellants to contest the appeal.
7. Counsel for the respondent Bank also fairly concedes that the Bank did not file proof affidavit and the Bank witness was not examined and on the very same day when the preliminary objection was dismissed, the Presiding Officer, DRT, passed order in the main OA. So, even on merits there is something to be gone into and the defendant must be given opportunity to put forth his case. Anyway, the appellants did not care to file the appeal within time. The appellants have filed appeal after a delay of 438 days. The submission made by the Counsel for the appellants that he was waiting for the order passed by the Presiding Officer, DRT, is not an acceptable one because on the very same day order in the main OA was passed. The appellant ought to have taken steps to file the appeal in time after the order was passed by the Tribunal in the main OA. So I feel that the delay can be condoned on payment of part of the decree amount.
8. The petition (IA-1) for condonation of delay is allowed on deposit of Rs. 8,00,000 (Rupees eight lakhs only) towards decree amount within a period of two months from today i.e. by 12.8.2002 failing which the petition shall stand dismissed automatically.
