The Tribunal dismissed the petition to set aside an ex parte order and judgment. The court found that the bank proved service of the amended application and the hearing date was communicated via the cause list, defeating the plea of non-service.
MA/24/2023 is dismissed on contest against the Respondents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
DEBTS RECOVERY TRIBUNAL 1, KOLKATA
| Order Sheet (continuation) | ||
|---|---|---|
| Case No.MA OA/ |
/24/2023 67/2004 Iqbal Tannery & Anr. vs Punjab National Bank & |
Ors. Office action |
| Date of the Order |
Order with Signature | with date and dated Signature of Parties when necessary |
| 21/03/2024 | Ld. counsel Ms. Aruna Ghosh appears for Misc. applicant. |
|
| Ld. counsel Mr. Onkar Ganguly appears for opposite- party Bank. Matter was heard from the parties on 10/01/2024. |
||
| The Misc. Applicants filed M.A. No. 24 of 2023 is for setting aside the exparte order dated 18/05/2022 and judgement dated 02.08.2022 on the ground that Applicant Bank has carried out amendment of Original Application before the Ld. Registrar on 25/02/2022. Ld. Advocate for the Bank is directed to serve copy of the amended OA and file affidavit of service on the next date and the next date was 04/04/2022. The matter was adjourned to 18/05/2022. On 18/05/2022 the Defendants were not present. It is alleged by the Misc. Applicant that they were not |
1
DEBTS RECOVERY TRIBUNAL 1, KOLKATA
| Order Sheet (continuation) | ||
|---|---|---|
| Case No.MA OA |
/24/2023 /67/2004 Iqbal Tannery & Anr. vs Punjab National Bank & |
Ors. Office action with date and |
| Date of the Order |
Order with Signature | dated Signature of Parties when necessary |
| communicated hearing of date by the Applicant Bank. On that date defendants were declared exparte and reserved for |
||
| judgment. It is alleged by the Misc. Applicant that the judgment was passed without knowledge of the Defendants. The Applicant Bank hurriedly proceeded for hearing without knowledge of the Defendants. |
||
| Ld. Advocate for the O.P./Applicant Bank filed objection to the MA for setting aside the exparte order and judgment Ld. advocate for the Misc. Applicant cited authority of the Hon’ble Calcutta High Court in the matter of West Bengal State Electricity Board vs. Gillooram Gouri Shankar wherein Hon’ble Calcutta High Court at paragraph 32 held that : “This Court condones the delay in making the application for setting aside the ex parte decree and also sets aside the ex parte decree since this Court is of the opinion that |
2
DEBTS RECOVERY TRIBUNAL 1, KOLKATA
| Order Sheet (continuation) | |
|---|---|
| Case No.MA OA |
/24/2023 /67/2004 Iqbal Tannery & Anr. vs Punjab National Bank & Ors. Offi ti |
| Date of the Order |
Order with Signature ce acon with date and dated Signature of Parties when necessary |
| sufficient cause was shown by the Board in not appearing before the suit Court.“ |
|
| Ld. advocate for the Misc. Applicant has relied upon authority of Hon’ble Supreme Court in the matter of Shyam Kumar Gupta v/s Shubham Jain from (2023) 4 SSC 713 wherein Hon’ble Calcutta Supreme Court at paragraph 21 held that : “Apart from the above, where we find that the Trial Court and the High Court had taken too technical and impractical a view of the matter, there is another strong reason for which we are inclined to accept the prayer for setting aside the decree passed ex parte in this case.” Ld. advocate for the Misc. Applicant has also relied upon authority of Hon’ble Bombay High Court in the matter of Sunil Gupta & Ors v/s Asset Reconstruction Company (India) Ltd. & Ors. in 2022 SSC online Bombay 2159 wherein Hon’ble Bombay High Court held that date place for hearing should be |
3
DEBTS RECOVERY TRIBUNAL 1, KOLKATA
| Order Sheet (continuation) | |
|---|---|
| Case No.MA OA |
/24/2023 /67/2004 Iqbal Tannery & Anr. vs Punjab National Bank & Ors. Office action |
| Date of the Order |
Order with Signature with date and dated Signature of Parties when necessary |
| communicated to the parties and failure to communicate the date of hearing Hon’ble Bombay High Court set aside the order. Ld. Advocate for the Respondent Bank has relied upon authority of the Hon’ble Supreme Court in the matter of Sunil Poddar & Ors vs Union Bank Of India, Hon’ble Supreme Court at paragraph 19 held that : “Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in |
|
| service of summons. If the Court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiffs claim, he cannot put forward a ground of non service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order IX of the Code. Since the said provision applies |
4
DEBTS RECOVERY TRIBUNAL 1, KOLKATA
| Order Sheet (continuation) | ||
|---|---|---|
| Case No.MA OA |
/24/2023 /67/2004 Iqbal Tannery & Anr. vs Punjab National Bank & |
Ors. Offi ti |
| Date of the Order |
Order with Signature | ce acon with date and dated Signature of Parties when necessary |
| to Debt Recovery Tribunals and Appellate Tribunals under the Act in view ofSection 22(2)(g)of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before the DRT, they had no sufficient time to appear and answer the claim of the plaintiff-bank and on that ground, ex parte order deserves to be set aside.” |
||
| Hon’ble Supreme Court ultimately dismissed the Appeal. |
||
| In this case there is an order of Ld. Registrar on 25/02/2022 wherein Applicant Bank was directed to serve amended copy of OA and file affidavit of service and matter was placed before this Bench on 04/04/2022 and thereafter the matter was posted on 18/05/2022, on that date defendants were set exparte and exparte judgment pronounced on 02/08/2022. |
5
DEBTS RECOVERY TRIBUNAL 1, KOLKATA
| Order Sheet (continuation) | ||
|---|---|---|
| Case No.MA OA |
/24/2023 /67/2004 Iqbal Tannery & Anr. vs Punjab National Bank & |
Ors. Offi ti |
| Date of the Order |
Order with Signature | ce acon with date and dated Signature of Parties when necessary |
| On verification of record it appears that the Applicant Bank has served copy of amended OA upon the Defendants by |
||
| Speed Post and the amended copy of OA delivered to the Defendants which is proved from the tracking report. Hence, Defendants have knowledge regarding service of amended OA, though the said fact is not recorded in the order dated 04/04/2022 and 18/05/2022. The date of hearing of OA before the DRT is uploaded in the website and communicated to the parties by cause list which was also uploaded in the website. So |
||
| they have knowledge of the date of hearing. The plea of the | ||
| Applicants that they were not served amended OA is not | ||
| established. The O.P. Bank has proved service of amended OA | ||
| upon the defendants. Therefore, as per the decision of the Hon’ble Supreme Court in the matter of Sunil Poddar & Ors vs Union Bank Of India, the prayer for setting aside the exparte order dated 18/05/2022 and judgement dated 02.08.2022 is liable to be dismissed. |
6
DEBTS RECOVERY TRIBUNAL 1, KOLKATA
| Order Sheet (continuation) | ||
|---|---|---|
| Case No.MA/2 OA/67 Date of the Order |
4/2023 /2004 Iqbal Tannery & Anr. vs Punjab National Bank & Order with Signature |
Ors. Office action with date and dated Signature of Parties when necessary |
| Hence, It is ordered as follows: | ||
| O R D E R | ||
| i) MA/24/2023 arising out of OA/67/2004 is | ||
| dismissed on contest against the |
||
| Respondents. | ||
| ii) Pending IAs is any are also disposed of. |
||
| (Ambuja Mohan Das) Presiding Officer |
7
2 issues framed by the court
Whether an ex parte order and judgment can be set aside when the applicant bank established service of the amended application and knowledge of the hearing date.
Whether clarification of irregularities in service by service of copy established in open court defeats the plea of the applicants.
Colour shows how this judgement treated each authority
West Bengal State Electricity Board vs. Gillooram Gouri ShankarDistinguished¶5
West Bengal State Electricity Board vs. Gillooram Gouri Shankar
Shyam Kumar Gupta v/s Shubham JainDistinguished¶5
(2023) 4 SSC 713
Sunil Gupta & Ors v/s Asset Reconstruction Company (India) Ltd. & Ors.Explained¶5
2022 SSC online Bombay 2159
Sunil Poddar & Ors vs Union Bank Of IndiaApplied¶5
Sunil Poddar & Ors vs Union Bank Of India
Iqbal Tannery & Anr.
Punjab National Bank & Ors.
Ambuja Mohan Das
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
