ORDER
K.S. Kumaran, J. (Chairperson)
1. Respondent-The Jammu and Kashmir Bank Ltd. (hereinafter referred to as ‘the Respondent-Bank’) filed O.A. 43/99 before the Debts Recovery Tribunal, Delhi (hereinafter referred to as ‘the DRT”) against the appellants (being defendants 1 to 5; and hereinafter referred to as ‘the appellants-defendants’) for the recovery of Rs. 19,57,068.26 with interest and costs. The learned Presiding Officer of the DRT, by order dated 13.7.2001, accordingly passed the final order. The appellants-defendants then filed an application before the DRT to set aside the said ex parte final order. The learned Presiding Officer of the DRT, while considering this application, observed that the appellant-2nd defendant-Mr. Ariyant Dabas along with the Counsel was present before the DRT on 23.4.99, and it is highly improbable that a lawyer would have appeared before the Court without being instructed by his clients. The learned Presiding Officer of the DRT also observed that the appellants-defendants had not shown that they had informed the Bank about the change of their address or about the closure of the business of the 1st defendant. The learned Presiding Officer also further observed that the contention of the appellants-defendants that the publication was wrongly carried out cannot also be accepted. Therefore the learned Presiding Officer of the DRT, by the impugned order dated 19.9.2002, dismissed the application.
2. Aggrieved, the appellants-defendants have filed this appeal. Even when the appeal came up for admission, the appeal in so far as it related to the 2nd appellant (Mr. Ariyant Dabas) was dismissed as withdrawn with liberty to file a fresh appeal, if so advised. The appeal is, therefore, considered in respect of the appellants 1 and 3 to 5 only. The respondent-Bank has filed a suitable reply opposing the appeal.
3. I have heard the Counsel for both the sides, and perused the records.
4. The learned Counsel for the appellants-defendants contends that on 3.2.99 the DRT directed the issue of summons to the defendants for the hearing on 10.3.99, but on 10.3.99 the DRT directed the service of the notice on defendants by publication in the newspaper ‘Statesman’, which is not proper or valid. The learned Counsel for the appellants-defendants points out the copy of the order dated 10.3.99, which shows that the learned Counsel for the respondent-Bank had filed the affidavit regarding service stating that the notices had been sent to the defendants on 18.2.99. But he had stated that neither the acknowledgement card nor the unserved envelope had returned from the defendants, and had prayed for service on the defendants by the mode of substituted service. The learned Counsel for the appellants-defendants points out that this request of the learned Counsel for the respondent-Bank was accepted by the DRT by ordering substituted service by publication of the notice in the newspaper ‘Statesman’. The learned Counsel for the appellants-defendants contends that when the envelopes containing the summons to the defendants had not even returned unserved, the mere oral request made by the learned Counsel for the respondent-Bank to serve the appellants-defendants by the mode of substituted service ought not to have been accepted.
5. I agree with the learned Counsel for the appellants-defendants. The copy of the order of the DRT, dated 10.3.99, shows that the learned Counsel for the respondent-Bank had filed the affidavit regarding service merely stating that the notices had been sent on 18.2.99, and had stated before the DRT that neither the acknowledgement cards nor the unserved envelopes had returned. From 18.2.99 to 10.3.99 even 30 days had not lapsed. The learned Counsel for the respondent-Bank had not stated before the DRT that defendants were either avoiding, service deliberately, or could not be served by the ordinary mode of service. His mere request for substituted service was accepted by the DRT, and the DRT had also not opined that the defendants could not be served by the ordinary mode of service, or that they were avoiding service. The DRT merely directed the service of the notice by publication in the newspaper. Therefore, it cannot be stated that there has been a valid service by the mode of publication. But, the order of the DRT, dated 23.4.99, shows the presence of Mr. Anand Aggarwal as Counsel for defendants and also the presence of Mr. Ariyant Dabas, the 2nd defendant in person. Since this record of the DRT shows that the 2nd appellant-defendant- * Mr. Ariyant Dabas was present in person, the appeal in so far as it related to the said Ariyant Dabas was withdrawn with liberty to file a separate appeal, and was accordingly dismissed as withdrawn with liberty to the 2nd appellant to file a separate appeal, if so advised.
6. But, the learned Counsel for the respondent-Bank contends that inasmuch as the 2nd appellant-defendant was present before the DRT, but had thereafter not appeared and contested the O.A., the appeal in so far as the 1st appellant-defendant-Dabas Agro Industries is concerned should also fail. He contends that, since, concededly, the 2nd appellant-defendant-Mr. Ariyant Dabas is the proprietor of the 1st appellant-defendant-Dabas Agro Industries, the appearance of the 2nd appellant-defendant-Mr. Ariyant Dabas on 23.4.99 before the DRT should be held to be not only on his own behalf, but also as the proprietor of Dabas Agro Industries.
7. I agree with the learned Counsel for the respondent-Bank in this respect. It is not disputed that the 2nd appellant-defendant-Ariyant Dabas is the proprietor of the 1st appellant-defendant-Dabas Agro Industries. Since Mr. Ariyant Dabas was present before the DRT on 23.4.99, it has to be held that he was present not only on his own behalf but also as the proprietor of the 1st appellant-defendant-Dabas Agro Industries. Therefore, the contention of the appellants-defendants 1 and 2 that they were not aware of the proceeding at all cannot be accepted. Therefore, the appeal in so far as the 1st appellant-Dabas Agro Industries is also concerned, has to be dismissed. But, the proprietor of the 1st appellant-defendant-Dabas Agro Industries, namely the appellant-2nd defendant-Mr. Ariyant Dabas has been permitted to withdraw the appeal, with a liberty to file a fresh appeal, if so advised. This is because of the contention of the appellants-defendants that the 2nd appellant-defendant-Mr. Ariyant Dabas was not actually present before the DRT, even though it was so recorded. Therefore, I am of the view that if the 2nd appellant-defendant-Mr. Ariyant Dabas is entitled to and is able to legally establish that he was not present before the DRT on 23.4.99, then it will be not only for his own benefit but will also be for the benefit of the 1st appellant-defendant-Dabas Agro Industries, of which he is stated to be the proprietor. Therefore, in my view, in the interests of justice, the 1st appellant-defendant-Dabas Agro Industries should also be given the liberty to file a separate appeal, if so advised, to contest the impugned order.
8. But, in so far as the appellants-defendants 3 to 5 are concerned, as the learned Counsel for the appellants-defendants rightly contends, there is nothing to show that they had engaged a Counsel to appear on their behalf before the DRT. It is also not the contention of the respondent-Bank that they had been served. In view of what I have already pointed out, there was no valid ground for directing service on the appellants-defendants 3 to 5 by the mode of substituted service, and, therefore, the publication of the notice in the newspaper ‘Statesman’ cannot be stated to be a valid service.
9. This apart, the learned Counsel for the appellants-defendants even points out from the publication made in the newspaper that the address of defendants 3 and 4 has not been correctly given. The learned Counsel for the appellants-defendants contends that the appellants-defendants lived at Door No. 277, First Floor, Deepali Sarswati Vihar, Pitarripura, New Delhi, whereas, the Door number given in the publication is 227. He also points out that even the names of the defendants 1 to 5 have not been given correctly. For example, he points out that the name of the 1st defendant has been mentioned as ‘Dabar Agro Industries’ instead of ‘Dabas Agro Industries.’ Similarly, the name of the 2nd defendant has been mentioned as ‘Ariyan Dabar’ while it has been mentioned in the O.A. as ‘Ariyant Dabas’. He points out that wherever it should have been ‘Dabas,’ it has been mentioned as ‘Dabar’. A perusal of the publication found in the records of the DRT shows that this contention of the learned Counsel for the appellant-defendants is also correct. Therefore, I find that the names of the defendants and the Door number of the residence of defendants 2 to 4 have also not been correctly given. Therefore also it has to be held that the publication is not proper.
10. The learned Counsel for the appellants-defendants contends that even in the O.A. the Door number of the residence of the defendants 2 to 4 bears a correction. It appears that ‘227’ has been corrected with pen as ‘277’. The leaned Counsel for the appellants-defendants points out that the copy of the summons issued for the hearing dated 10.3.99 shows that the Door number of the residence of the 4th defendant-Ashok Kumar Dabas has been given as ’27’. Of course, the learned Counsel for the respondent-Bank contends that for these mistakes, which had appeared in the publication and also in the summons issued for the hearing dated 10,3.99, the respondent-Bank is not responsible, but it is the concerned official of the DRT who is responsible. But, as the learned Counsel for the appellants-defendants rightly contends, whether the mistake is that of the respondent-Bank or of any official of the DRT the appellants-defendants 3 to 5 cannot be made to suffer on account of such mistakes. The contention of the appellants-defendants is that the appellants-defendants 2 to 4, who had earlier lived at Door No. 277, First Floor, Deepali, Sarswati Vihar, Pitampura, New Delhi till April/May 1997, decided to live separately since misunderstanding developed among them. The learned Counsel for the appellants-defendants, therefore, contends that they accordingly started living separately, while the appellant-5th defendant-Kartar Singh Dabas had been living in Flat No. 263, Pocket-II, Sector-23, Rohini, Delhi. Of course, the learned Counsel for the respondent-Bank contends that the appellants had not informed the respondent-Bank about the change of their addresses. But, I have pointed out this factor only to show that the fact that the 2nd appellant-defendant had appeared before the DRT on 23.4.99 will not and cannot in any way show that the appellants-defendants 3 to 5 were also aware of the proceedings before the DRT. In these circumstances, I am of the view that the appeal has to succeed in so far as it relates to the appellants-defendants 3 to 5.
11. Accordingly, the appeal is allowed in so far as it relates to the appellants-defendants 3 to 5. The ex parte final order passed against these appellants-defendants 3 to 5 stands set aside.
12. The learned Presiding Officer of the DRT will take the O.A. back to his file in so far as the appellants-defendants 3 to 5 are concerned, give opportunity to them to file their written statement, give opportunity to both sides to put forward their case, and then shall dispose of the O.A. in accordance with law in so far as these appellants-defendants are concerned.
13. For this purpose, the appellants-defendants 3 to 5 and the respondent-Bank, through their Counsel, are directed to the appear before the DRT on 17.1.2005 for taking further direction in this matter.
14. The appeal in so far as the 2nd appellant-defendant is concerned has already been dismissed as withdrawn with liberty to file a separate appeal.
15. The appeal in so far as the 1st appellant-defendant is concerned is also dismissed. But, the 1st appellant-defendant is also given the liberty to file a separate appeal in accordance with law, if it is so advised.
16. Copy of this order be furnished to both sides, and be also forwarded to the concerned DRT.