2004 PLP 963 (CLD)

Appellant, through the filing of the present appeal, has called in question judgment and decree dated 29‑4‑2003, whereby the learned Banking Court, after dismissing appellant's application for leave to defend the suit, proceeded to pass a decree for the recovery of Rs. 8,67,275, against the appellant.

2. In the first round of litigation, an ex parte decree for the recovery of Rs.10,40,675 was passed against the appellant by the learned Banking Court vide judgment and decree dated 15‑1‑2002, which was set aside by this Court, while allowing appellant's appeal (R.F.A. No.275 of 2002) and the case was remanded to the learned Banking Court for deciding the application for leave to defend the suit, afresh, after hearing the parties vide judgment dated 22‑10‑2002. In the post remand proceedings the learned Banking Court again dismissed the application for leave to defend the suit and consequently passed a decree for the recovery of Rs.8,67,275, favouring the respondent‑Bank, vide judgment and decree dated 29‑4‑2003, which has prompted the appellant to file this appeal.

3. Learned counsel for the appellant, while referring to the certified copy of the order‑sheet of the case, before the learned Banking Court, has contended that despite the directions of this Court to decide the application for leave to defend the suit after hearing the parties, the Banking Court has decided the said application without providing an opportunity of hearing to the appellant. Conversely, the learned counsel for the respondent has supported the impugned judgment.

4. We have called for the record of previously instituted appeal and find that while allowing appellant's appeal following order was passed:‑‑ "Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree dated 15‑1‑2002, is hereby set aside with no order as to costs. Resultantly, the suit for the recovery filed by the respondent‑Bank and the application for leave to defend, instituted by the appellant, shall deem to be pending before the learned Judge Banking Court, who shall at the first instance, decide the aforenoted application for leave to defend the suit after providing sufficient opportunity of hearing to the parties and of course, in accordance with law within a period of two months from the receipt of this order." 4‑A. We have examined the available record and find that the solitary contention raised by the learned counsel for the appellant has some substance. Order sheet does not manifest that the parties were afforded opportunity of hearing on the application for leave to defend the suit, thus, the appellant had definitely been condemned unheard, against whom the suit has been decreed. This action of the learned Banking Court obviously offends and violates the principle of natural justice. It is to be noted that although this Court, while remanding the case, specifically directed the learned Banking Court to, at the first instance, decide the application for leave to defend the suit after providing sufficient opportunity of hearing to the parties, yet the learned Banking Court did not hear the parties and thus, failed to even comply with the said directions. Learned counsel for the respondent despite his best efforts could not contradict the stance taken by the learned counsel for the appellant, which is also evident from the existing record. To our mind this is a sufficient ground for setting aside the impugned judgment and decree.

5. Upshot of the above discussion is that the present appeal is allowed and the impugned judgment and decree dated 29‑4‑2003, is set aside with no order as to costs. Consequently, the suit as well as the application, instituted by the respondent- Bank and the appellant, respectively, shall be deemed to be pending before the learned Judge Banking Court, who, firstly shall decide the application of leave to defend the suit after providing sufficient opportunity of hearing to the parties and of course, in accordance with law. M.A.W./A‑975/L Case remanded.