SRI SWAPAN KANTI SAHA vs STATE BANK OF INDIA on 16 March 2026

Order

Item No.3J lEs.03.2026 Present:- Sri Swapan Kanti Saha Vs State Bank of India Order with Signature Order No.15 None. Applicants Respondents Office action with date and dated signature of parties when necessary. Counsel for the Applicant Counsel for the Respondent Mr. Rajneesh Tripathi, virtually. Judgment is passed in MN10/2024 and a copy of the Judgment is kept on record. Let the judgment be uploaded on website of the Tribunal and the Registry is directed to serve/send copy of this judgment to the parties free of cost. Record be consigned to the record room along with the judgment. ~ (RAKESH~RI) Presiding Officer DRT-Siliguri

• • Presiding Officer Debts Recovery Tribunal Siliguri

IN THE DEBTS RECOVERY TRIBUNAL, SILIGURI MA/10/2024 arising out of TOA/711/2017 COA/784/2010} SRI SWAPAN KANTI SAHA, son of late Sisir Kanti Saha, Village and P.O. Talukertary, District- Jalpaiguri, PIN-735211 ......................... Applicant Vs.

1. STATE BANK OF INDIA, a body corporate constituted under the State Bank of India Act, 1955 having its regional office at Region-3, Siliguri, having its office at Sebak Road, Siliguri 734001 and branch office at State Bank of India, Falakata Branch, Falakata-1297, District-Jalpaiguri.

2. SRI RANAJIT SAHA, son of Radha Raman Saha residing at Village-Madhabpally, P .0. Falakata, District-Jalpaiguri. ....................... Respondents Counsel for the Applicant Mr. Sudip Kr. Das Counsel for the Opposite Party/ Bank Mr. Rajneesh Tripathi PRESIDING OFFICER: RAKESH PATI TIWARI Date of Judgment -16.03.2026

JUDGMENT

1. The instant M.A. has been filed by the applicanUdefendant No.2 in O.A. case for setting aside the judgment passed by this Tribunal vide order dated 29.12.2023 wherein the ~~ O.A. case of the applicant bank has been allowed for an amount of Rs. 10,86,764.00 ' l.., ~· ~o\\'e,~~~'g with interest calculated upto 30.11.2009 and further interest thereon @9.50% p.a. ~ . 6\~"::'.) ·, t\'tP'' • ?tes" 0~e('i. "'\'=> ~ec ·~,~,i' with monthly rests from 01.12.2009 till realization of entire balance along with cost '0ev S" amount.

2. Case of the M.A. applicant in short is that during pendency of the proceeding the petitioner entered his appearance through his Learned Advocate in the instant proceeding but from the copy of the judgment and order sheet dated 29 12.2023, which was received on 15.01.2024, the petitioner came to know that in TOA ex-parte judgment has been passed against the petitioner on 29.12.2023 and the petitioner/defendant No.2 was not represented in the Ld. Tribunal by any Advocate although the defendant No.1 was represented by the Ld. Advocate. The plea of the petitioner is that the petitioner relied upon the statement of the defendant No.1 as the defendant No.1 had taken the (contd/ ... 2)

responsibility of the said case in the Debts Recovery Tribunal for himself as well on behalf of the petitioner by appointing Advocate for conducting the case properly. That the petitioner used to enquire regarding the status of the said proceeding in ORT to the defendant No.1 and the defendant No.1 always used to assure him that the case is being conducted as it should be. The contention of the petitioner is that the statements and allegations as contained in the Original Application have not been dealt with or controverted as the petitioner did not get any opportunity to contest the matter. That after obtaining the certified copy of the Judgment and order dated 29.12.2023 he contacted his Ld. Advocate at Calcutta for taking necessary advice. In the above premises the petitioner prays for setting aside the judgment and order dated 29.12.2023 and to restore TOA/711/2017 in its original file.

3. Opposite party/applicant of the O.A. case filed their written objection stating inter-alia that the defendant No. 2 has filed this MA only on 29.01.2024, almost 14 years later from original case i.e. OA/784/201 O, to cause delay and to intentionally and unnecessarily drag the matter to cover up for his own negligence. The plea of the respondent bank is that the defendant No. 2 did not come before this Hon'ble Tribunal with clean intention. It has been contended by the respondent bank is that it is a transfer matter from DRT-11 Kolkata to DRT-Siliguri and vide order of Ld. Registrar of DRT- Siliguri dated 19.06.2023, the applicant Bank had served the summons upon the defendants and on 24.07.2023 in the order of Ld. Registrar it is clearly mentioned that \ the Counsel for all the defendants had appeared and undertaken to file the Vakalatnama ~ rt-~ , ~- ~,c,e<.. ~.g.n next date and hence, it is absolutely false statement that the defendant No. 2 was not ,~. ~ 0 ·'\\~~ . . 0e.:,,~'~('\~e~. represented by his advocate and moreover, copy of paper-book Is already provided to ~~ <l0c,v . ~<._\ :,,,_e:, ~ s~'~ <0~'<j the Ld. Counsel of the defendants, vide order dated 14.08.2023 passed by this Hon'ble Tribunal and on that day also Ld. Counsel of the defendants had undertaken to file the W.S within 4 weeks. According to the respondent bank the reasons given by the defendant No. 2 in the present application does not constitute as a sufficient cause to set aside the order passed by this Hon'ble Tribunal. Further, Ld. Advocate for the defendant No. 1 has already filed the W.S. as well as WNA, which has already been adjudicated. Moreover, several opportunities were given to the all the defendants, to file their W.S. but the defendant No. 2 did not file the W.S. even after completion of service as well as after appearance of his Advocate. (contd/ ... 3) -

Ld. Counsels of both the parties have already been heard. Perused the record including the record of TOA case No. 711/2017 arising out of O.A. case No.784/2010.

5. The sole M.A. applicant was the defendant No.2 in the O.A. case and his case is that he had not entrusted any advocate to appear in his behalf in this matter before this Tribunal and he was regularly enquiring from the defendant No.1 about the progress of the case who assured him that the case would be conducted as it should be.

6. From perusal of the record it transpires that Ld. Counsel Mrs. Lipi Mahanayak had appeared on behalf of both the defendants on dated 24.07.2023 in the O.A. case and had undertaken to file the vakalatnama and on the next date i.e. 14.08.2023 also similar submission was made but she never filed any vakalatnama or the written statement rather, Ld. Counsel Mr. Ankur Agarwal filed vakalatnama only for the defendant No.1 and later on filed the written statement. Sub-section (2) of section 22 prescribes the • circumstances for which the provisions of the Code of Civil Procedure would be applicable and its clause (g) is for setting aside any order of dismissal of any application for default or any order passed ex-parte and thus for setting aside the ex-parte order provisions of Code of Civil Procedure is applicable.

7. Relevant provision under the Code of Civil Procedure for setting aside the ex-parte decree is Order IX Rule 13 which prescribes that where the petitioner satisfies that the \ summons was not duly served, or that he was prevented by any sufficient cause from \lJv; ~ appearing when the suit was called on for hearing, the court shall make an order setting I '\P \ ,~ ~ ~"'~ o\''~-~~de the decree against him. In the instant matter both the abovementioned pleas have es'~ Ne'1. "\ ~e(J~-.f'~\, not been specifically pleaded. But from perusal of para No.5 of M.A. it transpires that the ~\~ ':)\\'-:, ve petitioner has accepted that summons was served to him. Moreover, from perusal of the service report filed by the applicant in the original O.A. case it transpires that apart from registry receipt track report has also been filed and it transpires that consignment No. EW297044271 IN was sent to the defendant No.2 Swapan Kanti Saha and from the track report it transpires that on dated 12.07.2023 the defendant had refused to accept the summons and later on it was returned to the sender. a. In case of N. Parameswaran Unni v. G. Kannan, [(2017) 5 sec 737] the Hon'ble Supreme Court has held that when a notice is sent by registered post and is returned (contd/ ... 4)

with postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station" , due service has to be presumed.

9. In the instant matter also the defendant refused the receipt of summons and as such it was returned to the sender and thus it is a case of proper service of summons to the M.A. applicant.

10. M.A. applicant has indirectly taken a plea in the M.A. why he did not appear and filed any written statement in the matter and his plea is that he was regularly enquiring from the defendant No.1 who had assured that the case would be conducted as it should be but this plea is not tenable because after getting summons, he must have taken care of the matter by properly engaging one counsel or personally appearing in the matter. M.A. applicant can blame no other but to himself who did not take any interest in the matter after receipt of summons and the reason given by the M.A. applicant does not come under the purview of sufficient cause of non-appearance.

11. It is pertinent to mention that instant O.A. case was originally filed by the applicant bank in the year 2010 and after establishment of the Debts Recovery Tribunal-Siliguri it was transferred to this Tribunal where it was re-numberd as TOA/711/2017 and lastly it has been disposed of by this Tribunal on 29.03.2023 and the case has been allowed for Rs. 10.86,764.00.

12. It is pertinent to mention that for the expeditious adjudication and recovery of debts due to banks and financial institutions, ROB Act was enacted in the year 1993 and as per section 19(24) from the date of receipt of the application case is to be disposed of within 180 days and the instant case has been disposed of after 13 years of its presentation but the M.A. applicant is trying to conduct de novo proceeding so that the recovery proceeding may be prolonged further.

13. In this view of the matter, M.A. filed by the applicant/defendant No.2 of O.A. case is hereby dismissed.

14. Let copy of this order be send/served to both the parties free of cost.

15. File be consigned to the record room after uploading the order on the website of the -- . , . Tribunal. ~-aJ~/ f,,t:v T ~~,. (RAKESH P A'TI TIWARI) ,& , 3 • ?-D r;b Presiding Officer DRT-Siliguri Presiding Officer Debts Recovery Tribunal Siliguri