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Smt. Naz Begum & Another v. Union Of India & Others - WRIT - C No. 21228 of 2006 [2006] RD-AH 7884 (18 April 2006)


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                                                                                       Court No.38

Civil Misc. Writ Petition No. 21228 of 2006

Smt. Naz Begum and another Vs. Union of India and others

Hon'ble Vineet Saran, J

Original Application No. 151 of 2002 was filed by the respondent-Canara Bank before the Debts Recovery Tribunal, Allahabad for recovery of certain amount of loan taken by the petitioners from the said Bank. The said application was allowed ex-parte vide order dated 17.3.2003 passed by the Debts Recovery Tribunal, Allahabad. The petitioners thereafter filed an application for recall of the order dated 17.3.2003. The said application was rejected by the Debts Recovery, Tribunal on 6.2.2004. Challenging the said order, the petitioners filed an appeal before the Debts Recovery Appellate Tribunal (DRAT). By its order dated 21.2.2006 the Debts Recovery Appellate Tribunal has allowed the appeal and restored the case before the Debts Recovery Tribunal subject to the condition that the petitioners deposit a sum of Rs.10 lacs with the bank within two months.  Aggrieved by the aforesaid direction of the Debts Recovery Appellate Tribunal requiring the petitioners to deposit  a sum of Rs.10 lacs, the petitioner has filed this writ petition.

I have heard Sri Ashok Trivedi, learned counsel appearing for the petitioners as well as Sri H.S.Mishra, learned counsel appearing for the contesting respondent-Bank and have perused the record. With consent of learned counsel for the parties this writ petition is being disposed of finally without calling for a counter affidavit.

It has been noticed in the impugned order that before the appellate authority there were talks of compromise going on between the contesting parties. At one stage the petitioners had offered to pay a sum of Rs.21 lacs towards final settlement of the dispute. The said compromise could not be worked out because the bank was not agreeable to compromise on payment of less than Rs.27 lacs. As such taking into consideration that at least Rs.21 lacs was due to the bank, the tribunal passed the order setting aside exparte judgment and order dated 17.3.2003 on the condition of the petitioners depositing of Rs. 10 lacs.

The submission of learned counsel for the petitioners is that while passing the order under Order 9 Rule 13 C.P.C. the Court can only pass an order rejecting or allowing the application but has no power to impose such condition as has been directed in the present case.

Order 9 Rule 13 C.P.C. reads as under:

"13. Setting aside decree ex parte against defendant. - In 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:

Imposition of costs is one of the term which may be imposed while allowing an application for setting aside the exparte decree. Besides that, the Court has discretion to impose other condition also, which may include direction to the applicant to deposit certain amount. In the case of Jayshree Distri Vs. Jayashree Tyres Products 1989 Allahabad Civil Journal 289, while interpreting the word "otherwise", in the circumstances of that case, it was held that it would be open to the Court to direct furnishing security or make any such order. As such, in my view, from a bare reading of Rule 13, the Court has the power to impose any reasonable condition while setting aside exparte order. In the present case, such condition to deposit Rs.10 lacs is fully justified, the reasons for which have been given by the appellate authority. In my view also, since the petitioners  had at one stage agreed for compromise on payment of Rs.21 lacs to the bank, the same would certainly amount to admission on the part of the petitioners of their liability towards payment of loan.

Learned counsel for the petitioners has contended that in pursuance of an order dated 26.2.2004 passed by this Court in Civil Misc. Writ Petition No. 8215 of 2004, the petitioners have already deposited a sum of Rs.5 lacs. Although the said amount was deposited in pursuance of a recovery certificate which had been issued against the petitioners pursuant to exparte order dated 17.3.3003, but still considering  that an amount of Rs.5 lacs has already been deposited by the petitioners towards the same loan and keeping in view the submission of learned counsel for the petitioners that the petitioners are facing financial crisis, taking a compassionate view, the order dated 21.2.2006 passed by the Debts Recovery Appellate Tribunal (which is impugned in this writ petition) is modified to the extent that instead of Rs.10 lacs, if the petitioners deposit a sum of Rs.5 lacs with the respondent-Bank within a period of six weeks from today, the proceedings before the Debts Recovery Tribunal would stand restored, the order dated 17.3.2003 set aside and the Debts Recovery Tribunal shall decide the matter afresh in accordance with law. In case of default, the order dated 17.3.2003 shall stand revived and be enforced.

Accordingly, this writ petition stands partly allowed to the extent indicated above.

In view of the fact that the Original Application no. 151 of 2004 was filed by the respondent-bank in the year 2000 and the loan was taken by the petitioners several years earlier thereto, it would be expedient in the interest of justice that in case if the amount of Rs. 5 lacs is deposited within time and the Original Application no. 151 of 2004 is thus restored; the case shall be decided by the Debts Recovery Tribunal, in accordance with law, after giving opportunity of hearing to the concerned parties, expeditiously, without granting any unnecessary adjournment to either of the parties.    




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