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CASE NO.: Appeal (civil)  86 of 2008

PETITIONER: SUNIL PODDAR & Ors.

RESPONDENT: UNION BANK OF INDIA

DATE OF JUDGMENT: 08/01/2008

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T (Arising out of SLP (c) No. 3935 of 2006)

C.K. Thakker, J.

1.      Leave granted. 2.     The present appeal is directed against  the order dated November 23, 2005 passed by  the High Court of Judicature at Allahabad in  Civil Miscellaneous Writ Petition No. 67297 of  2005.  By the said order, the High Court  dismissed the writ petition filed by the  appellant-writ petitioners and confirmed the  order of Debt Recovery Appellate Tribunal,  Allahabad dated September 13, 2005 which in  turn affirmed the order passed by the Debt  Recovery Tribunal, Jabalpur on December 20,  2001. 3.              To appreciate the controversy raised  in the present appeal, few relevant facts may  be stated.  It is the case of the appellant  that Adhunik Detergent Ltd. (Defendant No. 1  in Suit No. 44A of 1993 instituted by  respondent-Union Bank of India) was  incorporated as Company under the Indian  Companies Act, 1956.  There was another  Company also known as Adhunik Synthetics Ltd.  which was floated by the Directors of Adhunik  Detergent Ltd.  According to the appellants,  initially, Adhunik Detergent Ltd. had      seven Directors, namely, (1) Satyanarayan  Jalan,  (2) Krishna Jalan, (3) Chakrapani  Jalan, (4) K.K. Jalan, (5)Sunil Poddar, (6)  Sushil Kumar Kanodia and (7) Radhey Shyam  Poddar.  Adhunik Detergent Ltd. had taken loan  from the respondent-Bank. The appellants  herein as Directors of Adhunik Detergent Ltd.  at the relevant time became guarantors for  repayment of loan and executed certain  documents in favour of the respondent-Bank. It  is the say of the appellants that there was  division of business among the Directors of  Adhunik Detergent Ltd. and Adhunik Synthetics  Ltd. Consequent upon the division, the  appellants herein, who were Directors 5, 6 and  7 had resigned as Directors from Adhunik  Detergent Ltd. on August 18, 1989 and they got  exclusive control over Adhunik Synthetics Ltd.   From that date onwards, the appellants no more

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remained as Directors of Adhunik Detergent  Ltd. 4.              It was alleged by the respondent-Bank  that since Adhunik Detergent Ltd. did not repay  the loan amount, a civil suit came to be filed  by the Bank in the Court of District Judge,  Raipur, Madhya Pradesh for recovery of Rs.  1,07,17,177.60 p. In the said suit, over and  above the Company, all the Directors were also  joined as defendants.  A prayer was made in the  plaint to hold all the defendants jointly and  severely liable to pay the amount claimed by  the plaintiff-Bank along with interest, costs  and other expenses.  Summonses were issued by  the Court and the defendants appeared.  So far  as the present appellants are concerned, they  were not served with the summonses but when  they came to know about the filing of the suit,  they appeared and filed written statement on  March 9, 1995 contending inter alia that they  had resigned from the Directorship of the  Company (Adhunik Detergent Ltd.) with effect  from August 18, 1989 and the Bank was intimated  about such resignation.  It was, therefore,  contended that they were not responsible for  repayment of loan amount and suit against them  was not maintainable. The appellants,  therefore, prayed that they may be deleted from  the array of parties. On March 14, 1995, the  appellants also filed an application by raising  preliminary objection as to maintainability of  civil suit against them.  It was stated in the  said application that preliminary objections  were raised in the written statement by the  appellants (defendant Nos. 7, 8 and 9) that no  suit against them would lie. It was stated that  the preliminary objection raised by them was  fundamental in nature and went to very root of  the jurisdiction of the Court.  It was,  therefore, prayed that an issue as to  maintainability of suit against defendant Nos.  7 to 9 be framed and decided as preliminary  issue before trying the suit on merits.   Another application was also made in November,  1995 raising a similar objection contending  that the suit was not instituted in accordance  with law.  The plaint which was filed was not  signed by a person authorized to do so and on  that count also, the suit was not tenable.  It  was further stated that suit against defendant  Nos. 7 to 9 was not maintainable.  A prayer was  made to frame two issues under Order XIV, Rule  1 of the Code of Civil Procedure, 1908 (\023Code\024  for short) as preliminary issues and to decide  them as such. 5.              It may, however, be stated that during  the pendency of the suit before the Civil  Court, the Recovery of Debts Due to Banks and  Financial Institutions Act, 1993 (hereinafter  referred to as \023the Act\024) came into force and  in 1998 the suit filed by the respondent-Bank  came to be transferred to the Debt Recovery  Tribunal, Jabalpur (\021DRT\022 for short). The  appellants had no knowledge about the transfer  of the suit to DRT nor summonses were issued

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by DRT to the appellants at the new address.  In the circumstances, nobody appeared before  the DRT and the DRT vide its ex parte judgment  and order dated December 15, 2000 decreed the  suit filed by the plaintiff-Bank holding that  the Bank was entitled to recover 1,07,17,177/-  with interest and cost from the defendant Nos.  1-9 jointly and severely.  The defendants were  also restrained from transferring, alienating  or otherwise dealing with or disposing off the  hypothecated/mortgaged properties without the  prior permission of DRT. 6.              It is asserted by the appellants that  they were not aware of the proceedings before  the DRT and no summonses were served upon  them.  In the circumstances, they could not  remain present before the DRT.  It was on  December 16, 2000 when Mr. G. Karmakar, who  was working for the appellants, happened to  visit the office of M.P. Audyogik Vikas Nigam  Ltd. at Bhopal for some official work that the  officials of the Nigam informed him that a  suit pending in the Civil Court, Raipur was  transferred to DRT, Jabalpur and an ex-parte  decree had been passed against the appellants.  Immediately on December 18, 2000, Mr. Karmakar  went to DRT, Jabalpur for getting requisite  information and came to know that notice was  sent to the appellants at the old address  though new address was available.  An  advertisement was also published in a Hindi  daily.  He also came to know that since nobody  appeared on behalf of the appellants, ex-parte  decree had been passed.  In the circumstances,  the appellants herein made an application  under Section 22(2)(g) of the Act on January  10, 2001 for setting aside an ex-parte order  passed by the DRT.  The DRT, however, on  December 20, 2001 dismissed the application.  The appellants appealed against the order  passed by the DRT, but the Debt Recovery  Appellate Tribunal, Allahabad (\021DRAT\022 for  short) also dismissed the appeal.  A writ  petition filed against the order of DRAT also  met with the same fate.  The High Court  dismissed the writ petition.  All these orders  have been challenged by the appellants in the  present appeal. 7.              Notice was issued by this Court on  March 6, 2006. After hearing the parties,  execution proceedings were stayed and the  matter was ordered to be posted for final  hearing.  That is how the matter has been  placed before us. 8.              We have heard the learned counsel for  the parties.   9.              The learned counsel for the appellants  contended that DRT committed grave error of  law and jurisdiction in proceeding with the  application and deciding it on merits ex-parte  in absence of the appellants.  It was  submitted that no summonses were served upon  the appellants and thus no opportunity of  hearing was afforded to them before passing  the impugned order which is liable to be set

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aside.  The DRT in the circumstances, ought to  have allowed the application for setting aside  ex-parte order.  By not doing so, the DRT had  committed grave error and the said order  deserves to be quashed. It was also submitted  that appellants were not informed about the  transfer of case from Civil Court to DRT and  no summonses were served upon them.  According  to the appellants, they had changed their  address and new address was available with the  Bank.  In spite of that, with mala fide  intention and oblique motive, summonses were  sought to be served upon appellants at an old  address but the appellants were not served  because of change of address.  Summonses were  then published in a Hindi newspaper which had  no \021wide circulation\022.  That action was also  taken with a view to deprive the appellants  from knowing about the proceedings before the  DRT so that they may not be able to appear and  defend themselves and the Bank would be able  to obtain ex parte order. The appellants had  led the evidence in support of their say that  they were not in Mumbai at the relevant time  and they were not subscribers of Hindi  newspaper \023Navbharat Times\024. They had produced  necessary particulars and yet the DRT failed  to consider the said evidence in its proper  perspective and dismissed the application  observing that the appellants must be deemed  to be aware of the proceedings. According to  the DRT, the appellants appeared in Civil  Court, filed written statement but all those  facts were suppressed by them while filing the  application before the DRT for setting aside  ex parte order.  The same mistake has been  repeated by the Appellate Tribunal as also by  the High Court. It was submitted that all  those facts were not relevant in the present  proceedings. On all these grounds, the orders  are liable to set aside by directing the Debt  Recovery Tribunal, Jabalpur to consider the  matter afresh and to decide it in accordance  with law. 10.             The learned counsel for the  respondent-Bank, on the other hand, supported  the order passed by the DRT, confirmed by the  DRAT as well as by the High Court. An  affidavit-in-reply is filed by Senior Manager  (Law) of the respondent-Bank, wherein it was  submitted that the appellants were aware of  the proceedings initiated by the Bank against  them.  In civil suit, the appellants were  joined as defendant Nos. 7-9.  They appeared  before the Court through an advocate and filed  written statement in March, 1995.  They also  raised preliminary objections by filing  applications, requesting the Court to treat  the issues as to maintainability of suit and  liability of the appellants as preliminary  issues.  It was, therefore, clear that they  were served with the summonses and were in  know of the proceedings.  It was thereafter  their duty to take care of their interest,  when the suit was transferred to DRT,

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Jabalpur. It was further stated that summonses  were issued to the appellants at the addresses  at which they were earlier served.  In fact,  according to the respondent-Bank, it was the  same address which was given by the appellants  themselves before both the Tribunals and  before the High Court. But with a view to  deprive the Bank of the legitimate dues and to  delay the proceedings initiated against them,  they did not appear before the DRT. Though it  was not necessary for the Bank to serve the  appellants once again, they made a prayer to  the Bank to get the summonses published in a  newspaper which was done and in \023Navbharat  Times\024, Bombay as well as \023Navbharat Times\024,  Raipur summonses were published.  \023Navbharat  Times\024 is having very wide circulation at both  the places, i.e. Bombay as well as at Raipur.   It was, therefore, not open to the appellants  to contend that they were not subscribing  and/or reading a Hindi newspaper by producing  a bill from a newspaper agent.  Such a bill  can be obtained from any vendor.  No reliance  can be placed on such evidence.  Moreover, an  extremely important fact which weighed with  both the Tribunals as well as with the High  Court was that in an application under Section  22(2)(g) of the Act for setting aside ex parte  order passed by DRT, the appellants have  suppressed material and extremely important  fact that they had appeared before the Civil  Court and had filed written statement.  The  application proceeded on the footing as if the  appellants were never aware of any proceedings  initiated against them by the plaintiff-Bank.   The DRT was, therefore, wholly right in  dismissing the application and the said order  was correctly confirmed by the DRAT and by the  High Court.  No case can be said to have been  made out by the appellants to interfere with  those orders and the appeal deserves to be  dismissed. 11.             Having heard the learned counsel for  the parties, in our opinion, the appellants  have not made out any ground on the basis of  which the order passed by the DRT, confirmed  by the DRAT and by the High Court can be set  aside. From the record, it is clearly  established that the suit was instituted by  the plaintiff-Bank as early as in August,  1993.  The appellants who were defendant Nos.  7 to 9 were aware of the proceedings before  the Civil Court.  They appeared before the  Court, engaged an advocate and filed a written  statement.  They raised preliminary objections  as also objections on merits.  They filed  applications requesting the Court to raise  certain issues and try them as preliminary  issues.  It was, therefore, obligatory on  their part to appear before the DRT, Jabalpur  when the matter was transferred under the Act.   The appellants, however, failed to do so.  We  are not impressed by the argument of the  learned counsel for the appellants that they  were not aware of the proceedings before the

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DRT and summonses could not be said to have  been duly served.  As is clear, summonses were  issued earlier and on the same address,  summonses were sought to be served again after  the case was transferred to DRT. There is  substance in the submission of the learned  counsel for the respondent-Bank that the  appellants had avoided service of summons as  they wanted to delay the proceedings.  We are  also inclined to uphold the argument of  learned counsel for the Bank that in view of  the fact that the appellants were appearing  before the Civil Court, it was not necessary  for the Bank to get summonses published in a  newspaper after the matter was transferred in  accordance with law to the DRT, Jabalpur. But  even that step was taken by the respondent- Bank.  In \023Navbharat Times\024, a Hindi newspaper  having wide circulation in Bombay and Raipur,  summonses were published.  It cannot be argued  successfully that the appellants were not the  subscribers of the said newspaper and were not  reading \021Navbharat Times\022 Hindi Edition. But  even otherwise, such contention is wholly  irrelevant. As to bills said to have been  produced from the newspaper agent, to us, both  the Tribunals were right in observing that  such a bill can be obtained at any time and no  implicit reliance can be placed on that  evidence. It is immaterial whether appellants  were subscribers of the said newspaper and  whether they were reading it. Once a summons  is published in a newspaper having wide  circulation in the locality, it does not lie  in the mouth of the person sought to be served  that he was not aware of such publication as  he was not reading the said newspaper.  That  ground also, therefore, does not impress us  and was rightly rejected by the Tribunals. 12.             While dealing with the contention  raised by the appellants, the DRT observed; \023When summons are published in  newspaper, the Court has to be  cautious that it is published in a  newspaper, circulated and widely read  in an area where the defendant stays.  Navbharat Times is a national  newspaper read not only in Mumbai but  also elsewhere in this country. The  summons were published also in a  newspaper circulated in Raipur from  where the loan was disbursed. As  stated in the main order, the Court is  satisfied that summons were properly  published and summons has been  properly served\024.

13.             But the fundamental objection which  had been raised by the respondent-Bank and  upheld by the Tribunals is legally well- founded.  In the application filed by the  appellants before the DRT, Jabalpur under  Section 22(2)(g) of the Act, there is no  murmur that the applicants were defendants in  the suit instituted in Civil Court; they were

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served and they appeared through an advocate  and also filed a written statement and other  applications requesting the Court to try  certain issues as preliminary issues.  It was  expected of the appellants to disclose all  those facts. Apart from suppression of fact as  to service of summons and appearance of  defendants before the Court, even on legal  ground, it was not obligatory that the  appellants should have been served once again. 14.             In this connection, we may refer to  the provisions of Section 22 of the Act which  lays down procedure to be followed by the  Tribunals. The relevant part of the said  section reads thus; 22.  Procedure   and  powers of the  Tribunal  and  the  Appellate   Tribunal.\027(1) The Tribunal and  the  Appellate Tribunal shall  not  be   bound by the procedure laid down by  the Code of Civil Procedure,  1908  (5  of 1908),  but shall be guided by the  principles of natural justice  and,  subject to the other provisions of  this Act and of any rules, the   Tribunal and the Appellate Tribunal  shall have powers to regulate their   own  procedure  including the places  at which they  shall  have  their   sittings.

(2) The Tribunal and the Appellate  Tribunal shall have, for the  purposes   of  discharging  their functions under  this  Act,  the  same  powers  as are   vested  in a civil court  under the   Code of  Civil  Procedure, 1908 (5 of  1908), while trying a suit, in respect  of  the  following matters, namely:-

(a)     summoning  and enforcing the  attendance of  any  person            and examining him on oath;

(b)     requiring the discovery and  production of documents;

(c)     receiving evidence on affidavits;

(d)     issuing commissions for the  examination of witnesses or  documents;

(e)     reviewing its decisions;

(f)     dismissing an application for  default or deciding it ex parte;

(g)      setting aside any order of dismissal  of any application for default or any  order passed by it ex parte;

(h)      \005\005\005\005\005\005\005\005           15.             Bare reading of the above

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provision makes it clear that the DRT and the  DRAT have, for the purpose of discharging  their functions under the Act, the same powers  as are vested in Civil Court under the Code of  Civil Procedure, 1908.  Clause (g) of sub- section (2) of Section 22, therefore, has to  be read with Rule 13 of Order IX of the Code  which provides for setting aside ex parte  decree passed against a defendant.  Rule 13 of  Order IX as originally enacted in the Code of  1908 read thus; 13. Setting aside decree ex parte  against defendant.\027In any case in  which a decree is passed ex parte  against a defendant, he may apply to  the Court by which the decree was  passed for an order to set it aside;  and if he satisfies the Court that the  summons was not duly served, or that  he was prevented by any sufficient  cause from appearing when the suit was  called on for hearing, the Court shall  make an order setting aside the decree  as against him upon such terms as to  costs, payment into Court or otherwise  as it thinks fit, and shall appoint a  day for proceeding with the suit:

Provided that where the decree is of  such a nature that it cannot be set  aside as against such defendant only  it may be set aside as against all or  any of the other defendants also\024.    

16.             Original Rule 13 of Order IX of the  Code thus provided that when a decree had been  passed ex parte against the defendant who  satisfied the Court that summons was not duly  served upon him, the Court was bound to set  aside the decree.  It was immaterial whether  the defendant had knowledge about the pendency  of suit or whether he was aware as to the date  of hearing and yet did not appear before the  Court. The Law Commission considered that  aspect and the expression \023duly served\024. In  its Twenty-seventh Report, the Commission  stated; 1. Under Order IX, rule 13, if the  court is satisfied either that the  summons has not been served, or that  the defendant was prevented by  sufficient cause from appearing, etc.,  the ex parte decree should be set  aside. The two branches of the rule  are distinctive and the defendant,  whatever his position may be in  respect of one branch, is the court  that he has made good his contention  in respect of the other branch.

2. Now, cases may arise where there  has been a technical breach of the  requirements of \023due service\024, though  the defendant was aware of the  institution of the suit. It may well

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be, that the defendant had knowledge  of the suit in due time before the  date fixed for hearing, and yet,  apparently he would succeed if there  is a technical flaw. This situation  can arise e.g., where the  acknowledgement on the duplicate of  the summons has not been signed. There  may be small defects in relation to  affixation, etc., under Order V, rule  15. At present, the requirements of  the rules regarding service must be  strictly complied with, and actual  knowledge (of the defendant) is  immaterial. (There are not many  decisions which hold that even where  there has not been due service, yet  the decree can be maintained, if the  defendant knew the date of hearing.)

3. Where a literal conformity with the  C.P.C. is wanting, the second part of  column third of article 164, Indian  Limitation Act, 1908 (now article 123,  Limitation Act, 1963) applies. As to  substituted service, see discussion in  under-mentioned decision.

4. The matter was considered  exhaustively by the Civil Justice  Committee, which recommended a  provision that a decree should not be  set aside for mere irregularity. Local  Amendments made by several High Courts  (including Allahabad, Kerala, Madhya  Pradesh, Madras and Orissa) have made  a provision on the subject, though  there are slight variations in the  language adopted by each. Such a  provision appears to be useful one,  and has been adopted on the lines of  the Madras Amendment.

17.             The Commission again considered the  question and in its Fifty-fourth Report,  reiterated; 9.12. Under Order 9, rule 13, if the  court is satisfied either that the  summons has not been served, or that  the defendant was prevented by  sufficient cause from appearing, etc.,  the ex parte decree should be set  aside. The two branches of the rule  are distinctive, and the defendant,  whatever his position may be in  respect of one branch, is entitled to  benefit of the other branch, if he  satisfies the court that he has made  good his contention in respect of the  other branch.

9.13. In the earlier Report, several  points were considered with reference  to this rule, and amendments suggested  on one point,-the broad object being

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to ensure that a decree shall not be  set aside merely on the ground of  irregularity in service, if the  defendant had knowledge of the decree.  After consideration of the points  discussed in the earlier Report, we  have reached the same conclusion.

18.             Accepting the recommendations of the  Law Commission, the rule was amended by the  Code of Civil Procedure (Amendment) Act, 1976.  Rule 13 of Order IX with effect from February  1, 1977 now reads thus; 13. Setting aside decree ex parte  against defendant\027In any case in which  a decree is passed ex parte against a  defendant, he may apply to the Court  by which the decree was passed for an  order to set it aside; and if he  satisfies the Court that the summons  was not duly served, or that he was  prevented by any sufficient cause from  appearing when the suit was called on  for hearing, the Court shall make an  order setting aside the decree as  against him upon such terms as to  costs, payment into Court or otherwise  as it thinks fit, and shall appoint a  day for proceeding with the suit;    Provided that where the decree is of  such a nature that it cannot be set  aside as against such defendant only  it may be set aside as against all or  any of the other defendants also:    Provided further that no Court shall  set aside a decree passed ex parte  merely on the ground that there has  been an irregularity in the service of  summons, if it is satisfied that the  defendant had notice of the date of  hearing and had sufficient time to  appear and answer the plaintiff\022s  claim.    Explanation.-Where there has been an  appeal against a decree passed ex- parte under this rule, and the appeal  has been disposed of on any ground  other than the ground that the  appellant has withdrawn the appeal, no  application shall lie under this rule  for setting aside that ex parte  decree.            (emphasis supplied)            19.             It is, therefore, clear that the legal  position under the amended Code is not whether  the defendant was actually served with the  summons in accordance with the procedure laid  down and in the manner prescribed in Order V  of the Code, but whether (i) he had notice of  the date of hearing of the suit; and (ii)  whether he had sufficient time to appear and  answer the claim of the plaintiff. Once these

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two conditions are satisfied, an ex parte  decree cannot be set aside even if it is  established that there was irregularity in  service of summons. If the Court is convinced  that the defendant had otherwise knowledge of  the proceedings and he could have appeared and  answered the plaintiff\022s claim, he cannot put  forward a ground of non service of summons for  setting aside ex parte decree passed against  him by invoking Rule 13 of Order IX of the  Code.  Since the said provision applies to  Debt Recovery Tribunals and Appellate  Tribunals under the Act in view of Section  22(2)(g) of the Act, both the Tribunals were  right in observing that the ground raised by  the appellants could not be upheld. It is not  even contended by the appellants that though  they had knowledge of the proceedings before  the DRT, they had no sufficient time to appear  and answer the claim of the plaintiff-bank and  on that ground, ex parte order deserves to be  set aside. 20.             In our opinion, the Tribunals were  also right in commenting on the conduct of the  appellants/defendants that they were appearing  before Civil Court through an advocate, had  filed written statement as also applications  requesting the Court to treat and try certain  issues as preliminary issues. All those facts  were material facts. It was, therefore,  incumbent upon the appellants to disclose such  facts in an application under Section 22(2)(g)  of the Act when they requested the DRT to set  aside ex parte order passed against them.  The  appellants deliberately and intentionally  concealed those facts. There was no whisper in  the said application indicating that before  the Civil Court they were present and were  also represented by an advocate.  An  impression was sought to be created by the  defendants/appellants as if for the first time  they came to know in December, 2000 that an ex  parte order had been passed against them and  immediately thereafter they had approached the  DRT. The Debt Recovery Tribunal, Jabalpur,  therefore, in our opinion was right in  dismissing the said application.  In an appeal  against the said order, the DRAT observed that  the appellants had \021willfully suppressed the  fact that they were not in the know of the  proceedings when the same was proceeding in  the Civil Court\022. The DRAT correctly stated  that even if it is taken to be true that the  appellants did not receive notice from the  DRT, it was their duty to make necessary  inquiry in the proceedings when the case had  been transferred to the DRT. The Appellate  Tribunal rightly concluded; \023In the present case, the appellants  very artistically have suppressed the  fact of their filing of written  statement in the case while it was  proceeding in the Civil Court and were  being represented by their lawyer till  the date of its transfer to the

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Tribunal at Jabalpur\024.

21.             The High Court, in our judgment, was  equally right in dismissing the petition  confirming the finding of the DRAT that the  appellant had \021artistically\022 suppressed  material fact and no interference was called  for. 22.             Finally, we are exercising  discretionary and equitable jurisdiction under  Article 136 of the Constitution.  From the  facts and circumstances of the case in their  entirety, we do not feel that there is  miscarriage of justice. On the contrary, we  are convinced that the appellants had not come  forward with clean hands.  They wanted to  delay the proceedings. Though they were aware  of the proceedings pending against them, had  appeared before the Civil Court, but then did  not care to inquire into the matter. Even  after ex-parte order was passed, in an  application for setting aside the order, they  had not candidly disclosed all the facts that  they were aware of such proceedings and were  represented by a counsel. In the light of all  these facts and keeping in view the provisions  of Section 22 (2)(g) of the Act read with Rule  13 of Order IX of the Code, if the Debt  Recovery Tribunal dismissed the application  and the said order was confirmed by the Debt  Recovery Appellate Tribunal and by the High  Court, it cannot be held that those orders  were wrong and ex parte order should be  quashed. The prayer of the appellants,  therefore, has no substance and cannot be  accepted. 23.             For the foregoing reasons, the appeal  deserves to be dismissed and is accordingly  dismissed with costs.