HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE G. BHAVANI PRASAD Writ Petition No.8871 of 2004 Between: Smt. Fathimunnisa Begum w/o. late Shaik Noor Ahmed, Muslim, aged 56 years, residing at Door No.40-20-35, Pragatinagar, Benz Circle, Vijayawada 520 010. … Petitioner And Andhra Bank, Head Office at 5-9-11, Dr.Pattabhi Bhavan, Saifabad, Hyderabad, Andhra Pradesh And one of its Branches at Gandhi Nagar, Vijayawada – 520 003 & two others. … Respondents :: ORDER:: Counsel for the Petitioner: Sri V.S.R. Anjaneyulu Counsel for Respondent No.1 : Sri A. Krishnam Raju Counsel for Respondents No.2 & 3: Sri N. Ram Mohan Rao February 01, 2006 Per G.S. Singhvi, CJ This is a petition for quashing orders dated 11-09-2003 and 24-3-2004 passed by Debts Recovery Tribunal, Visakhapatnam (for short ‘the Tribunal’) and Debts Recovery Appellate Tribunal, Chennai (for short ‘the Appellate Tribunal’) respectively. The facts necessary for deciding the writ petition are as under: i. Respondent No.1, Andhra Bank (for short ‘the Bank’) filed an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short ‘the Act’) for recovery of Rs.14,82,242/- from respondents 2 and 3 and appellant along with interest @ 19% per annum compounded quarterly. In the application, it was averred that for his working capital requirement of business, Sri A. Davidu Reddy, Proprietor of Sri Avani Steel Corporation (respondent No.2) had approached the Bank in August 1999 for a secured overdraft of Rs.10 lakhs. Sri Madugula Krishna Reddy (respondent No.3) gave guarantee and petitioner Smt.Fathimunnisa Begum offered her residential building bearing No.40-20-35 in Prajashakthi Nagar, Labbipet, Vijayawada as security. The petitioner deposited title deed of the residential building with an intention to create equitable mortgage. She confirmed the same vide letter dated 3-9-1999. It was further averred that respondent No.2 had failed to repay the amount despite reminders and registered notices. The application of the Bank was registered as O.A.No.189 of 2002. The petitioner, who was impleaded as one of the non-applicants was served with summon issued by the Tribunal. On 28-6-2002, Sri T. Jagadeeswar Rao, Advocate filed vakalath on behalf of the petitioner. At his request, the case was adjourned on 28-6-2002, 13-8-2002, 26-9-2002 and 7-11-2002 for the purpose of filing written statement, but the written statement was not filed. On 7.12.2002, no one appeared on behalf of the petitioner. Notwithstanding this, the Tribunal adjourned the case to 4.12.2002. On that date also, no one appeared for the petitioner. Therefore, an order for ex parte proceedings was passed and the case was adjourned to 30-1-2003 for the evidence of the Bank. The evidence of the bank was finally taken on 19.2.2003. Thereafter, the case was fixed for arguments. By an order dated 24-2-2003 the Tribunal allowed the application with costs holding that the non-applicants were jointly and severally liable to pay Rs.14,82,242/- with interest @ 19% per annum with quarterly rests from the date of application. The Tribunal also awarded simple interest from the date of order till the date of realization. The non- applicants were allowed three months time to pay the debt and it was ordained that in case of default, the properties mentioned in Schedule-A shall be sold for realization of the amount due to the Bank. ii. After 30 days of passing of the aforementioned order, an application was filed on behalf of the petitioner for setting aside order and decree dated 24-2-2003. The same was registered as M.A.No.27 of 2003. In the affidavit filed by her in support of the application, the petitioner averred that due to old age and bad health condition, she could not come to Visakhapatnam to contact her advocate for giving instructions to prepare written statement. She pleaded that non-filing of written statement was neither willful nor deliberate. It was also pleaded that she had neither offered to give the residential building as security nor deposited the title deed with the Bank. iii. In the counter filed on behalf of the Bank, it was pleaded that the application filed by the petitioner was not maintainable because she had failed to show any cause for non-appearance on 4-12-2002. iv. On a consideration of the pleadings of the parties and record of the case, the Tribunal dismissed the application of the petitioner. Paragraphs 4 and 5 of order dated 11.9.2003, which contain detailed enumeration of facts and the reasons assigned by the Tribunal for not accepting the petitioner’s plea read as under: “4. It must be stated that OA was filed on 2-5-2002. Summons were ordered on 8-5-2002 and posted to 28-6- 2002 on which date one Sri T. Jagadeeshwar Rao filed vakalat for D3- petitioner. Time was given for filing written statement and posted to 13- 8-2002, 26-9-2002, finally to 7-11-2002 and as last chance to 4-12-2002. On 4-12-2002, Sri Jagadeshwar Rao was absent. Written statement was not filed. Therefore, D3 was called absent and set ex parte and posted to 30-1-2003 for applicant’s evidence. From there it was adjourned to 11- 2-2003 and to 19-2-2003. On 19-2-2003, affidavit and documents filed. Ex.A.1 to 13 marked and the matter was heard and orders were passed on 24-2-2003, allowing OA, as all the defendants were ex parte. In spite of giving number of chances for about 6 months, D3 never bothered to file written statement. Her advocate was only taking the time, and not filed written statement. D3 never appeared in the Tribunal. The averment in the affidavit of the petitioner that on 7-11-2002 she was set ex parte, as written statement was not filed is false. Because from 7-11-2002, it was posted to 4-12-2002 as last chance for filing written statement. She was set ex parte only on 4-12-2002 but not on 7-11-2002. Even after that the matter was adjourned nearly three times for applicant’s evidence. Even before 19- 2-2003 when affidavit and documents filed or at least on that date, no petition has been filed for petitioner to set aside the ex parte order. As per Section 19 (4), summons shall be issued requiring defendant to show cause within 30 days of the service of summons as to why the relief prayed for could not be granted. Sub-section 5 of Section 19 further says that the defendants shall at or before the first hearing or within such time as the Tribunal may permit, present a written statement of his defence. In this case, summons were ordered on 8-5- 2002 and posted to 28-6-2002 on which date vakalat filed for D3. Sufficient time was given to D3 till 4-12-2002 by adjourning the case four times. She was not satisfied with the time given. But, still tried to drag on the proceedings. On 4-12- 2002, no representation has been made for D3 and she and her advocate were absent. Therefore, D3 was called absent and set ex parte. I do not find any valid grounds for setting aside the ex parte decree passed on 24-4-2003. If according to petitioner that she was informed that the case was posted to 7-11-2002 for filing written statement, then what was she doing from 28-6-2002 to 7-11-2002, is not explained satisfactorily. In my opinion, there are no valid, sufficient and tenable grounds for setting aside the ex parte decree. If really she wants to put forward that she did not give any property as security, then she should have taken care for filing written statement even before 4- 12-2002. 5. Originally the present MA.No.27 of 2003 appears to have been filed by Sri T.V.S. Rao on behalf of petitioner, but I do not find any vakalat of Sri Rao. On the other hand, on 17-7-2003, MA.No.53 of 2003 was filed by Sri S.S.Sharma, Advocate requesting for stay of proceedings in RP.No.35 of 2003 till disposal of MA.No.29 of 2003 in OA.No.189 of 2002. This MA.No.29 of 2003 is not filed by petitioner. She filed MA.No.27 of 2003. However, on 21-7-2003, I have granted interim stay on the condition of petitioner depositing Rs.6 lakhs into the Tribunal on or before 27-8-2003 and in default, the petition shall stand dismissed. On 27-8-2003, Sri S.S. Sharma, Advocate stated that his client did not turn up and he does not know whether the conditional order dt.21-7- 2003 was complied or not. As there was nothing to show that the conditional order was complied, the petitioner was called absent. It was self-contained order. Therefore, it was dismissed. Therefore, when there are so many lapses on the part of the petitioner, she does not deserve any leniency from this Tribunal. In OA itself it was mentioned very clearly that the present petitioner has deposited her title deeds in respect of “A” Schedule house property on 30-8-99 and she also confirmed the same by letter dt.3-9-99. Therefore, now at the time when Recovery Certificate being executed to say that she never gave any property as security appears to be not correct. I do not find any bona fides in filing this petition. In fact that she has only given security for the loan obtained by D1 and 2. I do not find any valid grounds for setting aside the ex parte decree.” v. The petitioner challenged the aforementioned order by filing an appeal under Section 20 of the Act. She reiterated the plea that her absence on 7-11-2002 was not deliberate and the Tribunal committed a grave illegality by ordering ex parte proceedings. The Appellate Tribunal, vide its order dated 24-3-2004 dismissed the appeal by making the following observations: “4. On a perusal of the entire records it is clearly seen that sufficient opportunity was given to the appellant. The appellant only did not choose to file the written statement and she was called absent and set ex parte. She appeared through Counsel. She and her Counsel had every knowledge about the posting of the case. So it cannot be stated that she was not at all aware of the proceedings. Further, the borrower the 1st defendant, also filed MA-29/2003 for setting aside the ex parte order. In that MA-29/2003 the appellant sought for interim stay and the PO, DRT, granted interim stay on condition of the 3rd defendant the appellant depositing Rs.6 lakhs into the Tribunal on or before 27-8- 2003 and in default the petition shall stand dismissed. On 27-8-2003, her Counsel stated that the client did not turn up and he does not know whether the conditional order dated 21-7-2003 was complied or not. So, the PO, DRT has stated that there was nothing to show that the conditional order was complied and the petitioner the appellant was called absent. So, even after that opportunity was given the appellant did not chose to comply with the conditional order and the appellant did not file the written statement in time and in fact she was dragging on the matter without filing the written statement in spite of sufficient opportunity given. The PO, DRT rightly dismissed that petition. I see no ground to set aside the ex parte order passed by the PO, DRT, Visakhapatnam.” Sri V.S.R. Anjaneyulu argued that the Tribunal as well as the Appellate Tribunal committed serious illegality by refusing to set aside ex parte order and decree despite the fact that the petitioner had offered cogent explanation for her absence on 7-11-2002. He referred to affidavit dated 25-3-2003 filed by the petitioner in support of her prayer for setting aside ex parte order and decree to show that she could not give instructions to her advocate due to old age and ill-health and argued that without even adverting to this ground, the Tribunal arbitrarily rejected her prayer and that too by taking into consideration a wholly irrelevant factor i.e., non-filing of written statement till 7-11-2002. Sri Anjaneyulu then argued that the decree passed by the Tribunal is liable to be set aside because order dated 24-2-2003 does not contain any discussion on the factual and legal aspect of the Bank’s entitlement to recover the amount from the petitioner. He vehemently submitted that the petitioner had not executed any document for mortgaging her property in favour of the Bank and respondent No.2 had managed to secure overdraft facility in connivance with the Bank Officers by producing forged document. Learned counsel further submitted that the petitioner is in no way related to respondent No.2 and, therefore, there was no occasion for her to mortgage the property at his instance. In support of his arguments, learned counsel relied on the judgments of the Supreme Court in Balraj Taneja v. Sunil Madan, G.P. Srivastava v. R.K.Raizada and of this Court in Aziz Ahmed v. I.A. Patel, Satyanarayana v. Wakf Board, Berger Paints India Ltd., Kolkata v. Syed Vicaruddin, and Yelka Ram Reddy and others v. Kancharla Indira. Sri A. Krishnam Raju supported the orders under challenge and argued that the Tribunal did not commit any illegality by refusing to set aside order and decree dated 24-2-2003. Sri Raju pointed out that even though written statement was not filed on behalf of the petitioner till 7-11-2002 and no one appeared on her behalf on that date, the Tribunal adjourned the case to 4-12-2002, on which date also no one appeared for the petitioner leaving the Tribunal with no option but to proceed ex parte. Learned counsel argued that the failure of the petitioner and her advocate to appear on 7-11-2002 and 4-12-2002 constituted a valid ground for passing an order for ex parte proceedings and the Tribunal did not commit any illegality by doing so. Sri Raju then pointed out that except making a bald statement in para 2 of affidavit dated 25-3- 2003 that due to old age and bad health condition she could not come to Visakhapatnam to contact her advocate for giving necessary instructions to prepare written statement, the petitioner did not produce any evidence to show that she was ailing and, on that account, she could not contact her advocate. Learned counsel emphasized that even before this Court, the petitioner has not produced any document to substantiate her assertion regarding illness and consequential inability to contact the advocate for the purpose of giving instructions. Sri Raju argued that though the Courts have given liberal interpretation to the expression “sufficient cause”, an ex parte decree cannot be set aside merely for asking and the Tribunal did not commit any patent illegality by refusing to entertain the prayer of the petitioner because she did not produce any tangible evidence to justify her absence. To meet the argument of Sri Anjaneyulu that the order and decree passed by the Tribunal is bereft of reasons and does not show application of mind to the material brought on record, Sri Raju pointed out that the Tribunal not only referred to the factual background of the Bank’s claim, but also referred to the evidence produced by it in the form of affidavit and documents to show that the borrower had failed to pay the debt and submitted that the order and decree dated 11.9.2003 cannot be held as vitiated due to non-application of mind. Learned counsel then pointed out that the petitioner had not only deposited the title deed with an intention to create equitable mortgage, but confirmed the same vide letter dated 3-9-1999 and argued that the order and decree passed by the Tribunal cannot be held as vitiated on the ground that the same is based on forged document. We have given serious thought to the respective arguments and carefully scanned the record. The first question which arises for determination is whether order dated 11-9- 2003 passed by the Tribunal refusing to set aside the ex parte order and decree is vitiated by any jurisdictional infirmity or error of law apparent on the face of the record. A brief recapitulation of the facts would show that the Bank had filed application under Section 19 of the Act for recovery of Rs.14,82,242/- by alleging that respondent No.2 had failed to repay the amount due from him. The petitioner was impleaded as party because she had mortgaged her property as security for repayment of loan and confirmed this transaction vide her letter dated 3.9.1999. Notice of the application filed by the Bank was duly served on the petitioner, the borrower and the guarantor, but neither of them filed written statement. Sri T. Jagadeeswara Rao, advocate filed vakalath on behalf of the petitioner on 28-6- 2002. Thereafter, the case was adjourned to 13-8-2002, 26-9-2002 and 7-11-2002 for the purpose of filing written statement, but the needful was not done. On 7.11.2002, neither the petitioner nor her advocate appeared before the Tribunal. Notwithstanding this, the case was adjourned to 4.12.2002. Even then the petitioner neither filed the written statement nor appeared in person or through her advocate. Therefore, the Tribunal passed an order for ex parte proceedings and adjourned the case to 30-1-2003 for the evidence of the Bank. The Tribunal granted two more adjournments to the Bank to adduce evidence. On 19-2-2003, representative of the Bank produced evidence in the form of affidavit and documents marked as Exs.A.1 to 13. After considering the uncontroverted averments contained in the application and the evidence produced by it, the Tribunal decreed the application of the Bank. The petitioner applied for restoration by asserting that on account of old age and bad health, she could not instruct her advocate. The Tribunal did not accept her plea and dismissed the application by observing that she has failed to show sufficient cause. The Appellate Tribunal confirmed that order. In our opinion, it is extremely difficult, if not impossible to believe that at the age of 58 years, the petitioner could be treated as old, but, even if that be so, in the absence of any detail regarding her illness and supportive evidence in the form of medical certificate, the Tribunal was fully justified in declining her prayer for setting aside ex parte decree. The fact that the petitioner and her advocate did not even bother to find out the status of the case on and after 7-11-2002 goes a long way to show that the explanation given by the petitioner for non-appearance on 7-11-2002 and, thereafter, was far from satisfactory. In the course of hearing, we repeatedly asked Sri Anjaneyulu, learned counsel for the petitioner to produce evidence to substantiate his client’s plea regarding illness which prevented her from contacting advocate for the purpose of filing written statement, but he could not draw our attention to any such document. He could not even give description of the ailment, though he half-heartedly stated that she was suffering from heart problem. If the petitioner had been suffering from a serious ailment like heart problem, she would have given the particulars of illness in the affidavit filed in support of the application for setting aside ex parte decree and produced medical certificate. However, the fact of the matter is that she neither gave the particulars of her illness nor any evidence was produced to substantiate the same. Therefore, the view taken by the Tribunal that the petitioner has failed to show sufficient cause for her non-appearance on 7-11-2002 and 4-12-2002 cannot be termed as patently erroneous and we do not find any justification to interfere with order dated 11-9-2003, more so because, even before this Court, no material has been produced to substantiate the assertion contained in the affidavit of the petitioner dated 25-3-2003 and no iota of explanation has been given as to why she and her advocate did not appear before the Tribunal till the passing of the decree. The petitioner’s challenge to the order of the Appellate Tribunal is wholly misconceived. The Appellate Tribunal examined the entire record and held that the petitioner had failed to avail the opportunity given to her to file written statement. The Appellate Tribunal noted that the petitioner had appeared through an advocate and knew about the proceedings of the case, but no effort was made to file written statement for five months and no one appeared on her behalf on 7-11-2002 and thereafter. In the opinion of the Appellate Tribunal, the explanation given by the petitioner for her failure to appear on 7-11-2002 was not at all satisfactory and we do not find any valid reason to disagree with it. We may now advert to the judgments on which reliance has been placed by learned counsel for the petitioner. In G.P.Srivastava v. R.K. Raizada2 (supra), the Supreme Court considered the question whether the negligence of the defendant earlier to the date on which order for ex parte proceedings was passed can be taken into consideration for deciding an application filed under Order 9 Rule 13 and answered the same in negative. The facts of that case were that the suit filed against the appellant for ejectment and damages was decreed ex parte on 10-3-1983. He filed application dated 7-4-1983 for setting aside the ex parte judgment and decree. The same was dismissed on 14-5-1985. Revision filed against that order was dismissed by the High Court on 23-9-1999 by observing that the appellant had failed to establish any just or sufficient cause for his non-appearance on the date fixed when the ex parte proceedings were initiated against him. Their Lordships’ of the Supreme Court noticed that the appellant who was working as Assistant Engineer in the Irrigation Department had to remain at the site in the interest of public and due to illness he could not come back to Lucknow till 11-2-1983 which prevented him from appearing in the trial court on 10-3-1983. On the particular day, young nephew of the counsel for the appellant met with an accident and died and, on that account, the counsel also could not appear before the Court. In support of his plea of illness, the appellant produced medical certificate, but the same was discarded by the trial court with the observation that it had been obtained from a private doctor and not from a government doctor. The High Court also did not accept the plea of the appellant and dismissed the revision petition by noticing his previous conduct. While reversing the order of the High Court, the Supreme Court observed as under: “Under Order 9 Rule 13 CPC an ex parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex parte decree. The words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits.” Their Lordships of the Supreme Court observed that non-appearance of the appellant was due to the