Case Note & Summary
The matter before the High Court of Judicature at Bombay arose from writ petitions challenging the judgment of the Debt Recovery Appellate Tribunal dated 12 May 2021, which had dismissed an appeal against an order of the Debt Recovery Tribunal dated 27 April 2011. The DRT had passed an ex-parte decree on 11 December 2009 in Original Application No.927 of 2001 against the petitioners. The petitioners filed a miscellaneous application seeking recall of that ex-parte decree, but the DRT dismissed the application solely on the ground that the petitioners had at some stage appeared through an advocate who had filed a Vakalatnama. The petitioners challenged that dismissal before the DRAT, which affirmed the DRT's order. Hence, the writ petitions were filed. The petitioners contended that they were never served with any summons in the original application. They alleged that the DRT did not enquire whether summons was ever issued or whether it was issued to the correct address before passing the ex-parte decree. They further submitted that the advocate who had entered appearance for them sometime in 2003 had stopped appearing in 2005, and for almost four years thereafter, until the decree was passed, the petitioners had no notice of any hearing dates. Their core legal submission was that mere filing of a Vakalatnama by an advocate cannot amount to waiver or dispense with the requirement of service of the writ of summons, which is essential for the time to file the written statement to commence. The respondents' arguments are not reproduced in the provided excerpt. The court noted that by consent, Writ Petition No.4885 of 2022 was treated as the lead matter, with findings to apply equally to Writ Petition No.4880 of 2022, and that the outcome of Writ Petition (St.) No.11009 of 2021 and Writ Petition (St.) No.11010 of 2021 would depend on the conclusions in this petition. The excerpt ends before the court's final analysis and operative order, so the ultimate decision and ratio decidendi are not available in the provided text.
Headnote
A) Debt Recovery - Ex-Parte Decree and Recall - Service of Summons - Not mentioned (Recovery of Debts Due to Banks and Financial Institutions Act, 1993 not cited in excerpt) - The Debt Recovery Tribunal passed an ex-parte decree dated 11-12-2009 against the petitioners in O.A. No.927 of 2001 without first enquiring whether summons was issued or served at the correct address; the petitioners claimed they were never served with any summons - The recall application was dismissed on 27-04-2011 and the DRAT dismissed the appeal on 12-05-2021, giving rise to the writ petition - The court considered whether the DRT could pass an ex-parte decree without such enquiry and whether the DRAT erred in upholding the dismissal (Paras 2-4). B) Debt Recovery - Appearance by Advocate and Waiver of Summons - Vakalatnama Filing - Not mentioned - The DRT dismissed the recall application solely on the ground that an advocate had filed a Vakalatnama for the petitioners at some stage - Petitioners contended that mere filing of a Vakalatnama by an advocate cannot amount to waiver or dispense with the requirement for service of the writ of summons on defendants, which is essential for the time to file the written statement to commence - The court noted that the advocate had stopped appearing in 2005 and no notice of hearing dates was given for almost four years before the decree (Paras 5-6). C) Writ Jurisdiction - Connected Petitions - Lead Petition Findings - Not mentioned - By consent, Writ Petition No.4885 of 2022 was taken as the lead matter; counsel agreed that findings would equally apply to Writ Petition No.4880 of 2022 and that orders in Writ Petition (St.) No.11009 of 2021 and Writ Petition (St.) No.11010 of 2021 would depend on the conclusions in this petition - If the court allowed this petition, counsel stated that WP 4880 of 2022 would also be allowed and WP(ST) 11009/2021 and WP(ST) 11010/2021 would be dismissed - The court recorded this procedural arrangement (Para 1).
Issue of Consideration
Whether the Debt Recovery Tribunal could pass an ex-parte decree without enquiring into service of summons on the defendants, and whether mere filing of a Vakalatnama by an advocate amounts to waiver of service of summons.
Final Decision
Not mentioned (provided judgment text ends before the final operative order; the court's conclusions on the merits are not included in the excerpt).
Law Points
- A party is entitled to notice of hearing dates
- mere filing of Vakalatnama by an advocate does not amount to waiver of service of writ of summons
- an ex-parte decree cannot be passed without first enquiring whether summons was issued and served at the correct address
- service of summons on correct address is essential for time to file written statement to commence
