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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MOHINDER PAL, A.C. RAO, JJ.
BANK OF BARODA - Petitioner
Versus
PIONEER GLOBEX PRIVATE LIMITED & ORS. - Respondents
R/SPECIAL CIVIL APPLICATION NO. 19017 of 2018
Decided On : 19-12-2018
Constitution of India -Article 226/227 -leaned advocate waives service of notice of rule on behalf of the respondent Nos.1 to 7.. At the request of the learned counsel for the respective parties and in the facts and circumstances of the case, present petition is taken up for final hearing. By way of this petition under Article 226/227 of the Constitution of India, the petitioner. Facts leading to file the present writ petition are as under:- petitioner Bank filed Original Application No.414 of 2017 before the Debts Recovery Tribunal-II, Ahmedabad for recovery of Rs.26,64,58,380.61 along with interest and costs against the respondent Nos.1 to 7 herein. respondent Nos.1 to 7 were duly served with the summons / notice along with the copy of the O.A. No.414 of 2017 and the respondent Nos.1 to 7 appeared through an Advocate and filed undertaking to file and written statement on the next date of hearing. However, though the matter was adjourned, the respondent Nos.1 to 7 neither filed their appearance, nor filed or written statement. Heard learned advocate appearing with learned advocate appearing on behalf of the petitioner Bank and, learned counsel appearing with, learned advocate appearing on behalf of the respondent Nos.1 to 7 at length. learned advocate appearing on behalf of the petitioner Bank has vehemently submitted that this Court vide order issued notice and passed interim order and after passing of the said order, learned counsel appearing on behalf of the respondents mentioned the matter and submitted that that after the interim order passed by the DRAT, the respondents herein had filed a Caveat Application before this Court, however, the matter was not shown in the cause list of the learned advocate for the respondents –Held Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously.In view of the above and for the reasons stated above, present petition is allowed. The impugned order passed by the learned DRAT in Appeal No.33 of 2018 is hereby quashed and set aside. Rule is made absolute. In the facts and circumstances of the case, there shall be no orders as to costs -Petition is Allowed.
A.C. RAO, J.
1. RULE. Mr. Prithu Parimal, leaned advocate waives service of notice of rule on behalf of the respondent Nos.1 to 7.
2. At the request of the learned counsel for the respective parties and in the facts and circumstances of the case, present petition is taken up for final hearing.
3. By way of this petition under Article 226/227 of the Constitution of India, the petitioner has prayed for the following reliefs:-
“[A] To issue a writ of Mandamus or any other suitable writ, order or direction to quash and set aside order dated 04.12.2018 passed by the Hon’ble Debts Recovery Appellate Tribunal, Mumbai (hereinafter referred to as “the DRAT”) in Appeal No.33/2018.
[B] To stay the operation of the impugned order dated 04.12.2018 passed by the Hon’ble Debts Recovery Appellate Tribunal, Mumbai in Appeal No.33 of 2018, pending hearing and final disposal of this Special Civil Application.
[C] To direct the Hon’ble D.R.A.T., Mumbai not to release Rs.12 Crores along with interest as kept in FDR which were deposited by the respondents on 04.05.2018 pending hearing and final disposal of this Special Civil Application.
[D] To direct the Hon’ble D.R.A.T., Mumbai to release Rs.12 Crores along with interest (as kept in FDR) to the Applicant Bank pending hearing and final disposal of this Special Civil Application subject to just and fair terms as may be imposed by the Hon’ble Court.
[E] To grant such other reliefs as this Hon’ble Court may deem fit in the interest of justice and fairness.”
4. Facts leading to file the present writ petition are as under:-
4.1. The petitioner Bank filed Original Application No.414 of 2017 before the Debts Recovery Tribunal-II, Ahmedabad for recovery of Rs.26,64,58,380.61 along with interest and costs against the respondent Nos.1 to 7 herein.
4.2. The respondent Nos.1 to 7 were duly served with the summons / notice along with the copy of the O.A. No.414 of 2017 on 01/06/2017 and the respondent Nos.1 to 7 appeared through an Advocate and filed undertaking on 12/07/2018 to file Vakalatnama and written statement on the next date of hearing. However, though the matter was adjourned on 08/08/2017 and 20/9/2017, the respondent Nos.1 to 7 neither filed their appearance, nor filed Vakalatnama or written statement.
4.3. Thereafter in the month of October, 2018 the respondent Nos.1 to 7 filed Special Civil Application Nos.18311/2017 and 18313/2017 before this Court seeking interim relief restraining the petitioner Bank from taking physical possession of mortgaged property under SARFAESI Act and this Court granted interim relief on condition that the respondents herein shall deposit Rs.2.5 Crores with the petitioner herein Bank on or before 10/10/2017 and the respondents herein – petitioners in the said petitions shall come forward with the schedule of payment of remaining debt on or before the returnable date without fail.
4.4. Thereafter the respondent Nos.1 to 7 herein withdrew both the aforesaid writ petitions and accordingly the same came to be disposed of by this Court as withdrawn vide order dated 17/10/2018.
4.5. Even after disposal of the aforesaid two writ petitions, the respondent Nos.1 to 7 herein never appeared before the Debts Recovery Tribunal, Ahmedabad (“DRT” for short) and after giving sufficient opportunity to the respondent Nos.1 to 7 herein, the DRT passed ex-parte judgement and decree on merits on 22/12/2017 and granted Recovery Certificate of Rs.26,64,58,380.61 and thereafter on 25/1/2018, the petitioner Bank issued demand notice for the dues of Rs.29.08,11,946.57 along with future interest and costs.
4.6. Thereafter the respondents herein filed Miscellaneous Application No.8 of 2018 under section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as “the RDDBFI Act” for short) to quash and set aside ex-parte judgement and decree dated 22/12/2017 as well as the Recovery Certificate, and also to direct the Recovery Officer not to execute t
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