Unico Leasing Ltd. and Others vs UCO Bank

Sanjay Kishan Kaul, J.—The Respondent-bank granted loan facility to Petitioner No. 1. Late Sh. R.L. Jain (represented through LRs (a), (b) and (c) as Petitioner No. 2), Petitioner No. 3 and Petitioner No. 4 are stated to be erstwhile directors of Petitioner No. 1 who stood guarantee for the loan. The loan was in the form of a cash credit limit of Rs. 70 lacs granted in August, 1989. The limit was enjoyed by Petitioner No. 1 but the amount was not being paid. The debt was acknowledged from time to time. On 30.09.1992 the debt was acknowledged at Rs. 1,02,57,164 vide its acknowledgement of debt dated 14.01.1993. The OA was ultimately filed before the Debt Recovery Tribunal in 1997.

In terms of order dated 05.09.1997 summons and notices were directed to be issued to the Respondent in the OA. It was specifically directed "it shall be the duty of the applicant bank to get the Defendants served by registered post and ordinary post. A copy of this order, OA and documents be also sent alongwith summons and notice."

It is not disputed by the Petitioners that the summons and notices have been sent at the recorded address of the parties with the Respondent-bank. These summons and notices were however received back unserved with the noting "left" "house locked for a long time" "addresses see left without any forwarding address". Thereafter notice by publication took place and the Petitioners were proceeded ex-parte.

The Petitioners filed an application under Order 9 Rule 7 of the Code of Civil Procedure, 1908 (in short "CPC") for setting aside ex-parte order dated 18.02.1998 and in the alternative an application under Order 9 Rule 13 of the CPC to set aside the judgment/decree dated 23.03.1998. This application is dated 28.08.1998. The Petitioners stated in the application that they came to know about the pending adjudication being listed for 23.09.1998 on 22.09.1998 from the office of the bank, and thus appeared through counsel before the Tribunal on 23.09.1998. Nothing is stated as to how and why the Petitioners were suddenly informed about the recovery proceedings. It is further stated that the Petitioners were not served with the summons/notices in any manner. Other than this, nothing material has been set out in the application.

The application filed by the Petitioners was dismissed by the DRT by an order dated 06.07.2001 and this order has been confirmed by the DRAT vide order dated 06.08.2010.

We have heard learned Counsel for the parties at length. On the last date of hearing itself we had pointed out to learned Counsel for the Petitioners that in view of the undisputed acknowledgement as on 30.09.1992 referred to aforesaid, whether the Petitioner was willing to deposit at least that amount in Court. Learned Counsel for the Petitioners has obtained instructions and states that the Petitioners are not willing and are not able to deposit any further amount than some miniscule amount already deposited towards a proposed settlement. This being a sum of Rs. 15 lacs deposited in February, 2004. We may note that according to learned Counsel for the Respondent-bank, that amount was deposited in respect of another loan account relating to another sister concern of Petitioner No. 1; though the Petitioner''s claim that the same was for both the loan accounts.

In our considered view, the only issue which has to be examined is whether any defect can be found in the procedure for service of notice on the Petitioners as the Petitioners claim to have been deprived of their right to defence in those proceedings.

We find that it is not disputed that the addresses given are correct. There is no other recorded address of the Petitioners with the Respondent-bank. The summons have been returned back of which the envelopes and the AD Cards are available.

In respect of these envelopes and AD cards there is a dual challenge made by learned Counsel for the Petitioners. The first is that these envelops had been sent by the counsel for the Respondent-bank and not through the Registry. The second is that the envelopes could not have enclosed the complete set as was required to be done.

We find no merit in the aforesaid plea. The order directing summons to be issued itself provided that the Respondent-bank to take the necessary steps to serve the Petitioners herein at their own responsibility. It is in pursuance thereto that the registered AD cards and the summons were sent to the Petitioners which were received back with the postal reports as indicated hereinabove. The second grievance also does not have any merit since the Petitioners would have raised an issue about non-receipt of complete set if the same had been delivered. The fact is that the envelopes had been returned back undelivered. If the Petitioners shut down their business or have changed their addresses it was their bounden duty to inform the Respondent-bank as to the address at which they could be contacted so that the necessary notices of pleadings would have been sent at those addresses. This is not done by the Petitioners.

Since no other address was available with the Respondent-bank, the next step was only to take out service through publication. The publication has been done and consequently, the Petitioners were proceeded ex-parte after service through publication. We find no fault in this procedure.

We may record that there are two concurrent findings of DRT and DRAT below in respect of the service of the Petitioners. This Court does not sit as a court of second appeal but has a duty to see that there is no illegality or perversity in the order. Since the facts set out in the impugned order were somewhat unclear we considered it appropriate to call for the record to cull out the relevant facts for actual determination of the controversy. We may also notice that in so far as the LRs of late Sh R L Jain are concerned, they have been sued only to the extent that they are inheritors of the estate of Late Sh R L Jain. There is no personal liability attached to them.

No grounds are made out to interfere in the impugned judgment. The writ petition is dismissed.

The record of DRT-II be sent back.