The Judgment was delivered by : HON'BLE JUSTICE R. S. TRIFATHI (CHAIRPERSON)

1. This recall/review application has been preferred under Sec. 22 (2) (g) of the read with D.R.T. (Procedure) Rules for setting aside the ex-parte judgment dated 13th September, 2005 passed by this Tribunal in Appeal No. 110 of 2002.

2. According to the applicants the appeal No. 110 of 2002 was pending before this Tribunal but unfortunately the counsel for the applicants failed to turn up before this Tribunal in the above appeal. Consequently this Appellate Tribunal decided the appeal ex-parte on 13th September, 2005 hence this application for recall/review has been moved.

3. It is pleaded on behalf of the applicants that the counsel for the applicants had to come from Jabalpur and the appellant were under bonafide belief that its counsel was representing it in above appeal before this Tribunal as that counsel had raised certain legal point before this Tribunal on 29th April, 2002 but later on the counsel for the applicant failed to appear. Consequently the appeal was decided ex-parte on 13th September, 2005, hence according to the applicants, the applicants should not be allowed to suffer in account of any fault on the part of their counsel.

4. The above application for recall has been opposed from the side of the respondent bank by filing an objection challenging the contentions raised from the side of the applicants. According to the respondent bank there is no good ground for the present application moved for recall/review, hence it should be rejected outrightly. The bank has pleaded that, firstly, the application for recall/review is not maintainable. Secondly, there is no good ground for considering the question of recall/review as prayed by the applicant.

5. Having afforded opportunities to the counsel for the applicants and learned counsel for the opposite party bank this Tribunal has gone through the record. The argument from the side of the applicants is that the applicants could not get any information about the ex-parte proceeding of the appeal and the applicants are under the impression that the counsel Sir V.K. Srivastava instructed by it was representing it before this Tribunal in the appeal particularly when he had raised certain legal points in this appeal on 29th April, 2002. Learned counsel for the applicant has also argued that the applicants could not know as to why Sri V.K. Srivastava failed to turn up in the above appeal and applicants could know about ex-parte decision of the appeal only when the copy of the ex-parte judgment was received by the applicant. Against this, submission from the side of the opposite party is that the averment from the side of the opposite party in its reply remained un-controverted as no rejoinder has been filed on behalf of the applicants. It is also argued from the side of the opposite party bank that respondent No. 5, Mr T.S. Bawal has not been impleaded as the party therefore, an application for recall/review is not maintainable. According to counsel for the opposite party bank Sri Bawal respondent had also preferred a review petition and in absence of any cogent ground for recall/ review the application moved on behalf of the applicant cannot be allowed.

6. Having heard counsels of both the parties and having considered the record of the application for recall/ review there is absolutely no justified ground for non-appearance of Sri V.K. Srivastava, Advocate representing the applicants on several dates although from the order sheet itself, it is clear that on 13th September, 2004 there was an adjournment application from the side of the respondent on the ground that their lawyer was not in a position to attend the Court and on that application this Tribunal had fixed 24th November, 2004 for hearing of injunction matter. On 24th November, 2004 there was none on behalf of the applicants/respondents. The applicants/respondents continued to absent till 16th August, 2005 when the judgment was reserved after conclusion of the argument of the opposite party bank. It is surprising that since 13th September, 2004 till 16th August, 2005 i.e. for a period of about one year the applicants did not take any care of the progress/position of the above appeal No. 110 of 2002. In the application of recall the words "for reasons not know to the appellants the counsel absented himself and the case proceeded ex-parte against the applicants" themselves go to show that despite service of the copy of the ex-parte judgment the applicatns have not been able to explain as to why its counsel failed to turn up. Even today, the appellants did not think it proper to know from their counsel the reason for his absence. Therefore in absence of any cogent ground for absence, the question of considering the recall/review application does not arise particularly when in reply the opposite party bank has challenged the averments of the applicants but those averments have not been controverted by filing rejoinder.

7. The result of all above discussions is that this application for recall/ review has no force and accordingly it is rejected.

ORDER

8. The application for review/ recall is hereby rejected. No order as to costs. Copy of the order be supplied to the parties at the earliest.