Case: M/s Jersey Developers (P) Limited & Ors Vs. Canara Bank

M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.04.2021 passed by the High Court of Judicature at Madras in Civil Revision Petition No.4427 of 2015 by which the High Court has dismissed the said revision application preferred by the appellants herein in which the appellants challenged the order passed by the learned Trial Court dismissing the petition to set aside the ex--parte decree, the appellants herein – original defendants have preferred the present appeal. 2. The appellant no.1 is the company who availed the loan facility from the respondent – Bank and appellant nos. 2 and 3 are the Directors who are staying along with their family in United States of America (USA) for last 40 years. The respondent - Bank instituted suit being OS No.3749 of 2003 before the learned Trial Court for recovery of the amount. The summons of the suit and the notices were sent to the address at Chennai which remained closed as the appellants herein original defendants are staying in USA. The summons and the notices were returned unclaimed. Therefore, the Court below ordered substituted service by newspaper publication. Thereafter the suit proceeded ex-parte and an ex--parte decree came to be passed vide judgment and decree dated 12.02.2004. The Bank subsequently approached the Debts Recovery Tribunal for issuance of the recovery certificate. The DRT, Chennai issued a notice dated 07.06.2013 in the name of the appellants calling upon them to pay a sum of Rs.47,21,320.53. The said notice was also sent to the address at Chennai which property according to the appellants was already sold in the year 2002. According to the appellants when appellant no.2 visited India in the year 2014, he become aware of the recovery certificate on 29.03.2014 and the ex--parte decree. The appellants hereinoriginal defendants therefore filed the application before the learned Trial Court to set aside the ex--parte judgment and decree dated 12.02.2004. The said application came to be dismissed by the learned Trial Court. The revision application against the order passed by the learned Trial Court dismissing the application to set aside the ex--parte judgment and decree has also been dismissed by the High Court by the impugned judgment and order. 2.1 At the time of hearing of the present appeal it was stated at the Bar that pursuant to the order passed by the High Court, the petitioners have already deposited 50% of the decretal amount. This Court passed an order dated 26.11.2021 that on deposit of the balance 50% of the decretal amount with the Registry of this Court, notice shall be issued. It is reported that by now the petitioners have deposited the entire decretal amount (50% with the High Court and 50% with the Registry of this Court). 3. Having heard learned counsel for the respective parties and considering the fact that summons/notices issued by the learned Trial Court were returned unclaimed as the same were sent at the address at Chennai and the house was closed as the appellants herein original defendants were staying in USA and thereafter the said house was sold and so as to give one additional opportunity to the defendants to defend the suit and as by now entire decretal amount is deposited by the appellants to show their bonafides and therefore the amount alleged to have been due and payable to the Bank is secured, we are of the opinion that if the appellants are given one additional opportunity to defend the suit it will be in the fitness of things and meet the ends of justice.

Decision:
1[ds]It is reported that by now the petitioners have deposited the entire decretal amount (50% with the High Court and 50% with the Registry of this Court).3. Having heard learned counsel for the respective parties and considering the fact that summons/notices issued by the learned Trial Court were returned unclaimed as the same were sent at the address at Chennai and the house was closed as the appellants herein original defendants were staying in USA and thereafter the said house was sold and so as to give one additional opportunity to the defendants to defend the suit and as by now entire decretal amount is deposited by the appellants to show their bonafides and therefore the amount alleged to have been due and payable to the Bank is secured, we are of the opinion that if the appellants are given one additional opportunity to defend the suit it will be in the fitness of things and meet the ends of justice.