ORDER
K.S. Kumaran, Chairperson
1. First respondent-State Bank of Indore (hereinafer referred to as ‘the respondent-Bank’) filed O.A. 648/2000 before the Debts Recovery Tribunal, Delhi (hereinafter referred to as the ‘DRT’) against appellant-Rajeshwar Prasad Painuly (4th defendant in the O.A., and hereinafter referred to as ‘the appellant- defendant’) and three others for the recovery of Rs. 49, 18, 411.69 with interest and costs. The learned Presiding Officer of the DRT passed the ex parte final order dated 4.4.2002 against all the defendants, including the appellant-defendant, directing them to pay the said amount jointly and severally.
2. The appellant-defendant filed a Miscellaneous Application dated 20.5.2002 for setting aside the ex parte final order against him. The said application was dismissed by the learned Presiding Officer of the DRT by his order dated 18.7.2002 observing that the show- cause notice in the O.A. was sent to the appellant-defendant to his last known address available with the respondent-Bank, that it is not stated that the appellant-defendant, after changing his address, had intimated about the same to the respondent-Bank, and that the records of the O.A. show that the appellant 4th defendant was duly served with the show- cause notice in the O.A. Therefore, the learned Presiding Officer of the DRT dismissed the said application in limine.
3. Aggrieved, the appellant-defendant has preferred this appeal, and the respondent-Bank has filed a reply opposing the same.
4. I have heard the Counsels for both the sides, and perused the records.
5. The learned Counsel for the appellant first of all points out from the addresses given in the O.A. itself that the address of the appellant-defendant given therein is the same as that of the 1st defendant-company, namely, F-347, Ilnd Floor, M.B. Road, Lado Sarai, Delhi 110030. He further points out from the order dated 12.12.2000 passed by the DRT that notice was ordered in the O.A. (for 15.3.2001), and that notice in the O.A. was taken only once to the appellant-defendant, but no notice was taken to any other address. He further points out from the records of the DRT that the notice in the O.A. sent to the appellant- defendant had returned unserved with the remark “Left”.
6. The learned Counsel for the appellant-defendant further points out from the order dated 15.3.2001 that the Counsel for the respondent-Bank had made a statement to the effect that notices addressed to the appellant-defendant and the 1st defendant-company had returned with the remark “Addressee Left”, and had even requested that he may be permitted to collect the correct address of the appellant-defendant and the 1st defendant for fresh service. He further points out from that order that the respondent-Bank was given time to provide the correct address, and the matter was adjourned.
7. The learned counsel for the appellant-defendant further points out the order dated 27.8.2001 of the DRT, from which it is seen that the affidavit regarding service along with unserved notices were placed on record, that the Counsel for the respondent-Bank had stated that the correct addresses of the defendants 1 and 2 (mistake for defendants 1 and 2) were not available and, therefore, only the publication can solve the purpose. He further points out from that order that defendants 1 and 2 (mistake for defendants 1 and 4) were ordered to be served by publication.
8. The learned Counsel for the appellant-defendant contends that the respondent-Bank had not taken notice to the proper address of the appellant-defendant, but had taken notice to the premises of the 1st defendant, which can never be the residential address of the appellant-defendant. He also contends that the appellant-defendant never resided at F-347, IInd Floor, M.B. Road, Lado Sarai, Delhi-110030. He also points out that it is the address of the 1 st defendant-company, and that the appellant-defendant is in no way connected with the said company, either as a director or otherwise. The learned Counsel for the appellant also points out the specific averment in paragraph 5.13 of the memorandum of appeal, wherein the appellant-defendant has stated that the respondent-Bank was aware that the appellant is residing at House No. 46, Block-B, Sector 40, Gautam Budh Nagar, Noida and that the respondent-Bank is also aware that the appellant-defendant has no concern with the principal borrower, namely, the 1st defendant-company since he was neither a director nor was he in any way associated with the said company. The learned counsel for the appellant- defendant contends that the respondent-Bank, in its reply to the appeal, has only stated that the contents of paragraph 5.13 in the appeal are wrong and denied, and that the Noida address of the appellant was traced afterwards by the respondent-Bank for the purpose of the recovery proceedings before the Recovery Officer. He further points out that it has not been specifically denied that the appellant-defendant has no concern with the 1st defendant- company.
9. In these circumstances, the learned Counsel for the appellant-defendant contends that, without taking notice to the proper address of the appellant-defendant, but, by taking notice to the premises of the 1st defendant-company, with which the appellant-defendant has no connection either as a director or otherwise, and after the notice had returned with the remark “Left”, the respondent-Bank could not be stated to have laid the proper foundation for seeking service on the appellant-defendant by the mode of substituted service. He also points out that the DRT has not applied its mind to this aspect before ever the respondent-Bank was allowed to make publication of the notice in the newspaper. But, the learned Counsel for the respondent-Bank, on the other hand, contends that the same address . as has been given in the guarantee deed was given in the O.A. The learned Counsel for the respondent-Bank points out that thereafter the appellant-defendant did not give any other address and, therefore, when .the notice in the O.A. sent to this address, had returned with the remark “Left”, the only option left was to take notice by the mode of substituted service.
10. But, in my view, the respondent-Bank had not specifically established that the appellant-defendant could not have been served by any other mode except by way of publication, or that there has been a valid service of the notice by publication of the notice in the newspaper. First of all, the address of the appellant-defendant given in the O.A. is the same address of the 1st defendant-company. As rightly pointed out by the learned Counsel for the appellant-defendant, it could not be the residential address of the appellant-defendant. Further, the specific case of the appellant-defendant is that he is in no way connected with the 1st defendant-company as a director or in any other capacity. Therefore; by taking notice in the O.A. to the appellant-defendant to the address of the 1st defendant-company, it cannot be stated that there has been an earnest attempt to serve the appellant-defendant with the notice in the OA, The purpose of serving a notice in the O.A. is to comply with the principles of natural justice that the person against whom a particular relief is claimed is put on notice also what is the claim made against him, so that, the said person can put forward his reply/defence. The respondent-Bank has not shown by any acceptable material that the appellant-defendant has any connection with the 1st defendant-company. Therefore, when the appellant-defendant has no connection with the 1st defendant-company, and when notice has been taken to him at the address of the 1st defendant-company, it cannot be stated to be an earnest attempt made to serve the appellant-defendant in the OA. Further, the notice addressed to the appellant-defendant has been returned merely with the remark “Left”, The learned Counsel for the appellant-defendant points out the averment in the grounds of appeal that the respondent-Bank was aware of the fact that the appellant is residing at Noida. Of course, this has been denied in the reply, But, in the recovery proceedings, the notices have been taken to this address of the appellant-defendant. Of course, the respondent-Bank contends that this address has been subsequently traced. Even taking that to be true, the respondent-Bank could, have traced this address of the appellant-defendant for service of notice in the O.A., whereas, the order dated 27.8.2001 passed by the DRT shows that the Counsel for the Bank had stated that the address of the defendants 1 and 2 (mistake for defendants 1 and 4) is not available, and had prayed for publication of the notice. If the correct address of the appellant-defendant can be traced for the purpose of the recovery proceedings, then the address could have been traced for the purpose of the recovery proceedings, then the address could have been traced for the purpose of serving the notice in the O.A. The fact that\he Counsel for the respondent-Bank had stated that the correct address is not available only shows that no earnest attempt was made by the respondent- Bank to serve the appellant-defendant with the notice in the O.A. As pointed out already, interests of justice required that the appellant-defendant should have been served in the OA., and should have been afforded an opportunity to put forward his case. In these circumstances, I am of the view that the appellant-defendant has shown sufficient cause for his nonappearance before the DRT, that the ex parte final order passed as against the appellant- defendant should be set aside, and that the appellant-defendant should be given an opportunity to havo the O.A. decide on merits.
11. The specific case of the appellant in the application filed before the DRT for setting aside the exparte final order is that he was neither served with the summons/notice in the O.A. nor with the copy of the final order. He has also stated that the 3rd defendant received the copy of the final order on 21.4.2002, and that he also came to know about the O.A. only at that time. There is no material to show that the appellant-defendant was served with the copy of the final order on any earlier date. Therefore, the application filed by the appellant- defendant on 20.5.2002 to set aside the ex parts final order is certainly in time.
12. Accordingly, the appeal is allowed setting aside the impugned order dated 18.7.2002 passed by the DRT. Consequently, the application filed by the appellant-defendant to set aside the exparte final order dated 4.4.2002 will stand allowed. The ex parte final order passed against the appellant-defendant in the O.A. is set aside.
13. The learned Presiding Officer of the DRT will take the O.A. back to his file as against the appellant-defendant, give opportunity to the appellant-defendant to file written statement, and if necessary, to the respondent-Bank opportunity to file a rejoinder. After giving them opportunity to put forward their case, the learned Presiding Officer shall then decide the O.A. in accordance with law.
14. For this purpose, the appellant-defendant and the respondent-Bank, through their Counsel, are directed to appear before the concerned DRT on 6.10.2004 to receive further directions in this matter.
15. Copy of this order be furnished to the appellant-defendant and the respondent- Bank.