IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17993 of 2010 M/S RAJ MOTORS, West Bailey Road, Near Saguna More, P.S. Danapur, District- Patna through its proprietor, Rajiv Gupta…. Petitioner Versus 1. UNION OF INDIA through Secretary, Ministry of Finance, Government of India, New Delhi. 2. State Bank of India, Madam Cama Road, Mumbai 400 021 through its Managing Director. 3. Branch Managerr, State Bank of India, Kurji Branch, Patna. 4. Assistant General Manager, Stressed Assets Resolution Centre, State Bank of India, 2nd Floor, Main Branch, West Gandhi Maidan, Patna. 5. Presiding Officer, Debts Recovery Tribunal, Budh Marg, Patna ….. …. Respondents. ----------- For the petitioner: Mr. Manik Vedsen,Advocate Mr. Subhash Chandra Bose, Advocate For S.B.I.: Mrs. Nilu Agrawal, Advocate For D.R.T: Mr. Sarvadev Prasad Singh -------- 2. 15.11.2010 Heard learned counsels for the parties. The petitioner seeks quashing of the order and judgment dated 29.7.2010 passed in O.A. Case No.10 of 2009, by which the application of the Bank was allowed and certificate for Rs.26,32,737.65/- with interest pendente lite and cost of Rs.56,000/- was issued for recovery from the petitioner and for a further direction to respondent No.5, Presiding Officer, Debts Recovery Tribunal, Patna to consider the Miscellaneous petition filed by the petitioner, which has been given Serial No.22 of 2010, for recall of the order dated 28.1.2010 passed by the Presiding Officer for proceeding with the case ex parte. - 2 - The brief facts relevant for the decision of this case are that O.A. Case No.10 of 2009 was filed by the respondent State Bank of India for recovery of the loan amount along with interest from the petitioner. The petitioner appeared after issuance of notice on 9.11.2009 but did not file a written statement till 4.1.2010 on which date it was ordered that if the same was not filed by 28.1.2010, the defendants will be proceeded ex parte. On 28.1.2010 noting the non-filing of the written statement proceedings were ordered ex parte against the defendant petitioner and the case was directed to be fixed on 1.2.2010 for final argument. It was noted that later on the defendant had appeared and requested to grant some more time. Thereafter, an M.A case was filed by the petitioner for recall of the ex parte order on 23.2.2010, as according to the petitioner the certified copy of the order dated 28.10.2010 was not made available earlier. On 17.3.2010, learned counsel for the petitioner pointed out that the Miscellaneous Application for recalling the ex parte order should be first considered. The matter was, thereafter, put up on certain dates but no order was passed on account of the absence of the - 3 - Presiding Officer and ultimately the case was fixed on 11.5.2010 on which date after noting the absence of the defendants and that a petition dated 4.12.2009 has also been filed on behalf of the defendants for issuance of fresh notice to them and requested for time as also the defendants were set ex parte on 28.1.2010, the petition filed on behalf of the defendants was dismissed for no merit. It was also noted in the said order that learned counsel for the petitioner was heard at length and the matter was reserved for orders. The petitioner, thereafter, filed another Miscellaneous Application (Sl.No.67 on 29.6.2010) for recall of the order dated 11.5.2010 but without passing any order in either of the two Miscellaneous Applications, by order dated 29.7.2010 the judgment was pronounced and by another order on the same date a certificate was prepared and signed for sending to the Recovery Officer for its execution. On 30.7.2010, the matter was again taken up with respect to Serial No.67 dated 29.6.2010 in which the Presiding Officer noted that the case was reserved for judgment but due to shifting of the office the judgment could not be pronounced and in the - 4 - meantime the party has filed misc. case before the Tribunal to avail the SBI SME OTS Scheme, 2010 and thereafter disposed of the miscellaneous case with a direction to the Bank to consider the proposal in accordance with law. Learned counsel for the petitioner submits that the entire proceeding before the Debts Recovery Tribunal suffers from lack of application of mind. On one hand the M.A.Case filed against the ex parte order dated 28.1.2010 was directed to be taken up by order dated 17.3.2010 but instead of doing so and passing any order thereon learned counsel for the respondent Bank (Applicant) was heard and the orders were reserved. Even the subsequent Misc. Application bearing Sl.No.67 dated 29.6.2010 was not taken up until the judgment was pronounced on 29.7.2010 and the certificate issued on the same date; whereas when the said matter was taken up on the next day,i.e.,30.7.2010, it was noted that the case is reserved for judgment but due to shifting of the office the judgment could not be pronounced. Even the reference to the prayer made in the miscellaneous case is erroneous stating that it has been filed to avoid the SBI SME OTS - 5 - Scheme,2010, whereas the same was for recall of the order reserving judgment. It is, thus, submitted that everything has been done in a hasty, negligent and unbecoming manner by the Presiding Officer without looking into the records of the case. Thus important valuable right of the petitioner to be heard in the matter has been defeated. Learned counsel for the Bank points out various lapses on the part of the defendant petitioner before the D.R.T. including his failure to appear initially on 28.1.2010 when the order for hearing ex parte was passed and again non- appearance on 11.5.2010. However, learned counsel for the Bank is unable to defend the hearing of the main matter and reserving the order, when on 17.3.2010 the Registry had been directed to place the Misc. Application filed against the ex parte order dated 28.1.2010 on the next date, and hearing of the main matter without first disposing of the said Misc. Application. Learned counsel is also unable to support the subsequent order dated 30.7.2010 in which there is a clear statement that the judgment has not been pronounced due to shifting of the office, although from the order - 6 - sheet it appears that the judgment had been pronounced a day before on 29.7.2010. In the above circumstances, both the orders dated 29.7.2010 and 30.7.2010 passed by the D.R.T., Patna, including the certificate dated 29.7.2010 and the recovery proceeding, are set aside and the matter is remanded to the D.R.T., Patna for considering the Miscellaneous Application filed by the petitioner being Sl.No.22/10 for recall of the order dated 28.1.2010 for proceeding with the case ex parte, and thereafter to proceed further in the matter in accordance with law. Let the entire matter be considered and finally disposed of within a period of four months from the date of receipt/production of a copy of this order. With the aforesaid observations and directions, the writ application is disposed of. VPS ( Ramesh Kumar Datta, J. )