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2003 DIGILAW 569 (GUJ)

JAI AMBE ICE FACTORY v. RECOVERY OFFICER

2003-09-22

J.N.PATEL

body2003
J. N. PATEL, J. ( 1 ) RULE. Mr. Raval, learned Counsel for the respondent waives service of rule. With the consent of the parties, the matters are taken up for final hearing today. Since the facts are common and common questions are involved in both the petitions, they are being considered by this common judgement. ( 2 ) THE facts appear to be that the Verval Peoples Cooperative Bank Limited (hereinafter referred to as "the Bank") filed Lavad Suit No. 92/1999 against the petitioners of SCA No. 8488/2003 and the said Bank filed Lavad Suit No. 91/1999 against the petitioners of SCA No. 8490/2003. It is the case of the petitioners that before the learned Nominee they had engaged the lawyer, but for one reason or another, the lawyer of the petitioners could not defend the suit and the learned Nominee consequently, passed ex-parte judgement and award dated 31-3-2000 in both the suits, directing the concerned defendants to pay the amounts with the interest at the rate of 17. 5% plus 2% penal interest and the cost of Rs. 5165/=, in Lavad Suit No. 92/1999. So far as Lavad Suit No. 91/1999 is concerned, the award was passed for the sum of Rs. 8,67,607. 30 with the interest at the rate of 18% plus 2% penal interest and also the cost of Rs. 5,065/=. It is the case of the petitioners herein that the appeals were preferred against the said ex-parte judgement and award of the learned Nominee passed in both the suits. Even before the Gujarat State Coop. Tribunal, the Advocate of the petitioners did not remain present and consequently both the appeals came to be dismissed by the learned Tribunal. The Recovery Officer of the Bank, respondent herein, issued the demand notice and also took further steps in this regard for recovery of the amount as per the award. ( 3 ) MR. VYAS, the learned Counsel appearing on behalf of the petitioners contended, inter alia, that the judgement and award passed by the learned Nominee is an ex-parte award in both the matters and in any case, in the proceedings of the Appeals before the Tribunal, the learned Advocate could not remain present and the ground before the Tribunal is shown as that of sickness and telegram to that effect was sent. However, he submitted that thereafter the restoration application was submitted before the Tribunal and pending such restoration application, the amounts were sought to be recovered and, therefore, these petitions. Mr. Vyas also submitted that for default on the part of the lawyer, the petitioners should not be made to suffer. Mr. Vyas also submitted that there are good defence in both the suits, if the suits are allowed to be tried on merits. ( 4 ) ON behalf of the respondent, Mr. Raval has supported the action of the Recovery Officer and contended that so long as the judgement and award of the learned Nominee and the order of the Tribunal for dismissing the appeals are concerned, the Recovery Officer would be justified in taking action for recovery of the amount in accordance with law. ( 5 ) MR. RAVAL, learned Counsel appearing for the respondent Bank, has stated that so far as petitioners of SCA No. 8488/2003 are concerned, the decretal amount or awarded amount comes to Rs. 11,89,408. 02 as on June, 2003 and so far as the petitioners of SCA No. 8490/2003 are concerned, the awarded amount with interest comes to Rs. 21,42,442. 18 as on June, 2003. ( 6 ) IT may be noted that Mr. Vyas, during the course of arguments, has also submitted that if this Court finds it proper, upon imposition of suitable terms and conditions, that the matter can be ordered to be considered by the learned Nominee for the purpose of retrial of the suits. Mr. Vyas has also shown willingness on the part of the petitioners to deposit 25% of the awarded amount with a view to show bonafide on the part of the petitioners and also a reasonable cost which may be awarded by this Court as a condition for compensating the default committed by the petitioners before the learned Nominee as well as before the Tribunal through their lawyers. ( 7 ) HAVING considered the above, I find that it is an admitted position that the learned Nominee has proceeded ex-parte and it was on account of the default committed by the lawyer of the petitioners in not defending the suits, the learned Nominee had to proceed ex-parte. Such situations have also happened during the proceedings before the Tribunal. Of course, the ground shown is that of sickness of the lawyer and a telegram was sent. Such situations have also happened during the proceedings before the Tribunal. Of course, the ground shown is that of sickness of the lawyer and a telegram was sent. In my view, merely because a telegram is sent by the lawyer would not be a sufficient ground to interfere with the powers exercised by the Tribunal, because if the litigants or the lawyers are seeking adjournments in any of the matters, proper procedure is to move appropriate application either personally or through some authorized representatives at the time when the matter is called out or is taken up for hearing by the Tribunal. Merely because a telegram is sent, it cannot be asserted as a right that the Tribunal should have considered the same, because normally when the proceedings are going on such type of correspondence would not be entertained. In a given case, if it is brought to the notice of the Tribunal that such telegram is there, the Tribunal may consider the matter for adjournment. However, it is not necessary that merely because the telegram is sent to the Registrar of the Tribunal, the Tribunal would be required to exercise its judicial power upon such correspondence or such telegram in the matter of exercising jurisdiction in the pending appeal. Be as it may, I am not required to examine such aspect further in detail, but suffice it to say that it is on account of the default committed by the lawyer in not remaining present at the relevant point of time, the Tribunal had to dismiss the appeal of the petitioners. The restoration application is made, but merely because such restoration application is filed, it cannot be said that the Recovery Officer would not be justified in proceedings with the recovery of the amount, unless the stay order is granted by the Tribunal in such restoration application or such procedure known to law. ( 8 ) IN the matter of entertaining the prayers for setting aside of the ex-parte judgement and award or judgement and decree, the approach of the Court would be to see that the defaulting party is not put to the premium and in any case, the other side should not be made to suffer on account of the default committed by the petitioner. More over, if the matters of entertaining challenge to the ex-parte judgement and award are leniently viewed, it would result into encouraging the dilatory tactics on the part of the litigants, by first allowing the ex-parte judgement or decree or award to be passed and then to challenge the same before appropriate Court and consequently it would also result into allowing the defaulting party to take undue benefits of their own default. Therefore, I find that even if there is a good defence to be considered by the learned Nominee at the stage of trial, the petitioners should be put to the condition of depositing at least 25% of the decretal or awarded amount, if the suits are to be retried on merits and the petitioners should also pay the cost for compensating the other side for the cost of the litigation as well as the inconvenience caused for default committed by either petitioners or their lawyers. As Mr. Vyas, during the course of hearing, has also agreed for compliance of such condition on the part of the petitioners, including for the payment of the cost, it is not necessary to examine such aspect in detail at this stage. ( 9 ) IN view of the aforesaid observations and discussions, I find that the following directions shall meet with the ends of justice:9. 1) Both the petitioners shall deposit 25% of the awarded amount as on June 2003 i. e. Rs. 11,89,408. 02 in SCA No. 8488/2003 and so far as petitioners of SCA No. 8490/2003 such awarded amount would come to Rs. 21,42,442. 18. The petitioners of SCA No. 8488/2003 shall deposit with the Bank 25% of such awarded amount within a period of one month from today, minus the amount of Rs. 50,000/= which is already deposited by the petitioners pending the petition. The petitioners of SCA No. 8490/2003 shall deposit 25% of such awarded amount with the Bank within a period of two months, but the payment shall be made in two equal instalments of 12. 5% each of the awarded amount minus the amount of Rs. 50,000/= in all which is already deposited by the petitioners pending the petition. 9. 2) The petitioners of both the petitions shall pay the amount of Rs. 5% each of the awarded amount minus the amount of Rs. 50,000/= in all which is already deposited by the petitioners pending the petition. 9. 2) The petitioners of both the petitions shall pay the amount of Rs. 10,000/= in each petitions separately as the cost of the litigations before the learned Nominee, before the Tribunal as well of this Court and such amount of cost shall be paid by the concerned petitioners to the respondent Bank within a period of one month from today. 9. 3) After the aforesaid amount of 25% as well as the aforesaid amount of costs is duly deposited and paid, as the case may be, by the concerned petitioners, it would be open to the concerned petitioners to move the learned Nominee for retrial of the suits. If such application is made, the learned Nominee shall retry the suits after giving opportunity to both the sides and shall decide the suits afresh as early as possible, preferably within a period of six months from the date of such representation by the concerned petitioners. Under such situation the ex-parte judgement and the award passed by the learned Nominee in the concerned suit and its confirmation shall not remain in operation and shall stand quashed. IT is clarified that the learned Nominee shall decide the suits independently on the basis of material available before him, without being, in any manner, influenced by any of the observations made by this Court in this judgement. 9. 4) It is further clarified that if the petitioners fail to deposit or pay the amount of 25% of the awarded amount with cost as indicated earlier within the stipulated time limit, the learned Nominee shall not be required to retry the suits and the ex-parte judgement and award as well as its confirmation shall operate in accordance with law and it would be open to the Bank to take necessary steps for recovery of the amount in accordance with law. 9. 5) Until the amount, as directed, is deposited within aforesaid stipulated period the status-quo as prevailing shall be maintained. ( 10 ) BOTH these petitions are allowed in terms of the aforesaid observations and directions. Rule made absolute to the aforesaid extent. .