IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 20458 of 2008 Between: M.S. Kumar S/o. M.V.S.K. Mohan R/o. Flat No.202, Road No.5, Near Bank of Maharashtra, KPHB Colony, Hyderabad-500 072. ..... PETITIONER AND 1 Corporation Bank rep. by its Authorized Officer, Zonal Office, 58-9- 88/18/88/2, First Floor, Saffire Complex, Chappel Road, Hyderabad-500 001. 2 M. Venkat Reddy Sri Sahiti Home Appliances, Padala Complex, KPHB Main Road, Hyderabad-500 072 3 The Debts Recovery Tribunal rep. by its Registrar, Triveni Complex, Abids, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ, order or direction more in the nature of writ of Certiorari for the records pertaining to S.A.no.46 of 2005 on the file of the 3rd respondent, to declare the common orders dated 04.04.2008 passed in I.A.No.181/06 in S.A.No.46/05 are erroneous, arbitrary, perverse, illegal and contrary to the settled principles of practices of the Courts and Tribunals that is generally followed and also contrary to the principles of natural justice and provisions of the Constitution of India and consequently set aside the same to restore the S.A.46/05 adn the IAs therein to their original postition as they stood prior to 04.04.2008 and pass Counsel for the Petitioner:MR.T.V.S.PRABHAKARA RAO Counsel for the Respondent No.: MR.SRINIVASA RAO CHAKRALA The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition has been filed seeking Writ of Certiorari to call for the records pertaining to S.A.No. 46 of 2005 on the file of third respondent and to declare the common order dated 4.4.2008 passed in I.A.Nos. 181 of 2006 and 182 of 2006 in S.A.No. 46 of 2005 as erroneous, arbitrary and consequently set aside the same. Brief facts of the case are that the petitioner preferred an appeal in S.A.No.46 of 2005 before the Debts Recovery Tribunal-third respondent herein, seeking declaration of the notification dated 31.1.2005 issued by the Corporation Bank-first respondent herein in ‘Eenadu’ Telugu news paper for sale of his property as illegal and void. He also preferred I.A.No. 211 of 2005 seeking stay of all further proceedings pursuant to the notification. As matter stood thus, it is stated that on 2.6.2005 his advocate was held up in a traffic jam and could not reach the Court in time. By the time his advocate reached, the third respondent was pleased to dismiss the main S.A.No. 46 of 2005 for default and consequently I.A.No. 211 o 2005 was also dismissed on the same day. It is stated that his advocate did not inform this fact to him and he came to know the same when the officials started making arrangements for sale of the property by public auction and on enquiry counsel informed that he filed an application for restoration. However, the tribunal was not inclined to set aside the dismissal order but dismissed the I.As with costs of Rs. 5,000/- on the ground that the counsel who appeared was unable to submit for what purpose the I.As were filed, as his counsel suffered from fever and his junior asked adjournment or to Passover the matter. The learned counsel appearing for the petitioner contended that the Tribunal ought not to have dismissed the matter for default by imposing costs merely because the counsel has not attended the court and that the junior advocate has not prosecuted the matter properly. He also submitted that the Tribunal has committed an error in not restoring the appeal. We find some force in the contention advanced by the learned counsel appearing for the petitioner. Since the matter is dismissed for default, the Tribunal ought to have exercised its jurisdiction to restore the matter after giving an opportunity and ought to have decided the controversy in question on merits, but instead it dismissed the matter for default, which in our view is illegal. In these circumstances, we set aside the order dated 4.4.2008 and the consequential order dated 11.7.2008 passed by the Debts Recovery Tribunal-third respondent herein, subject to the payment of costs of Rs. 5,000/- by the petitioner imposed by the third respondent and the third respondent is directed to dispose of S.A.No. 46 of 2005 on merits, as expeditiously as possible. Accordingly, the Writ Petition is allowed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ VILAS V. AFZULPURKAR,J Dt. 03.06.2009 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD Copies