Smt Sabita Mandal vs STATE BANK OF INDIA on 22 July 2026

**J U D G M E N T**

*M* 22.7.2026

Siliguri

All the above four MA's are arising out of same self TOA/904/2017 (OA No. 1317/2014) and all defendants of the OA case have filed their separate MA's and almost similar point is involved in all the MA's and thus all the aforesaid four MA's are being disposed of simultaneously by one common order.

2. Instant MA's have been filed by the applicants challenging the ex-parte judgment dated 02.05.2023 by this Tribunal in TOA Case No. 904 of 2017 arising out of OA NO. 1317/2014.

3. Case of the MA's applicant is that they had not taken any loan and financial assistance if any were sanctioned by the applicant bank behind the back of the applicants. Their further case is that after filing of the case any summons was not served to them in OA case and they never appeared in this matter before this (contd/...)

Tribunal nor filed any WS and even after passing of the ex-parte order it was never served to them. That issuance of demand notice by the Recovery Officer to pay the recovery amount with interest within 15 days was also not served to them.

1. 4. Along with all the Misc. application M.A. applicants have file separate condonation petition but it is not mentioned in any of the M.As that how they came to know about the passing of the ex-parte order dated 02.05.2023.

2. 5. Opposite part/Applicant Bank of the OA case has filed written objection in all the MAs, that the MA applicant Tapan Mandal had availed the financial assistance from the bank who did not pay the dues amount and as such OA case was filed in which summons were duly served and even in the year 2018 Ld. Advocate Ms. Lipi Mahanayak had appeared and admitted that the defendant no. 1 had received the summons for the remaining four defendants and when the matter was proceeded ex-parte against the defendants Ld. Counsel Mr. D. Bhattacharjee had appeared with vakalatnama on dated 08.02.2021 and had filed one I.A. for recall of the ex-parte hearing order and thus on false, fabricated, manufactured and vexations grounds MA's have been filed which are liable to be dismissed.

3. 6. Heard Ld. Counsels of both the parties on all the four MA's and perused the record.

4. 7. From perusal of the record it transpires that originally the IA was filed by the applicant bank (SBI) against five defendants before DRT-II Kolkata for the recovery of Rs. 42,53,436.44p, along with interest calculated upto 31.10.2014 and as per the OA case defendant No. 1 Tapan Mandal was the original borrower whereas defendant no. 2 to 5 were the mortgagors. After establishment of DRT Siliguri, the instant OA case was transferred to this DRT were it was re-numbered as TOA NO. 904/2017.

1. 8. Record further goes to show that on dated 11.07.2018 Ld. Counsel Ms. Lipi Mahanayak appeared for the defendant no. 1 and undertook to file the vakalatnama. On next date i.e. 11.09.2018 also again Ld. Counsel Ms. Lipi Mahanayak appeared for defendant no. 1 on behalf of Ld. Advocate Mr. M. Shashamal and undertook to file the vakalatnama. On consecutive third date also Ld. Counsel Ms. Lipi Mahanayak appeared on 06.12.2018 for defendant no. 1 and (contd/...)

22.7.2026

Siliguri undertook to file the vakalatnama and orally confirmed the accept of summons by the defendant no. 1. As thereafter no one participated in the hearing for the defendants on next dates and thus vide order dated 16.01.2020 the matter was proceeded ex-parte against the defendants.

1. 9. It further transpires from the record that on dated 08.02.2021, Ld. Advocate Mr. Dibyendu Bhattacharjee filed I.A. NO. 73/2021 with vakalatnama for re-call of the order dated 16.01.2020 whereby an order was passed by this Tribunal to proceed ex-parte. On 16.03.2021 also Ld. Counsel Mr. Bhattacharjee had appeared for the defendants and direction was given to serve the copy of I.A. to the Ld. Counsel of the applicant to which he served to the Ld. Counsel of the applicant on dated 01.09.2022, after more than 18 months. Thereafter Ld. Counsel of the defendant never appeared in this matter to press his I.A. and thus as per the order dated 16.01.2020 final order has been passed ex-parte on dated 02.05.2023.

2. 10. Sub-section (2) of Section 22 of RDB Act prescribes that for certain matter, Tribunal is vested with the jurisdiction of Civil Court and its clause (f) refers to dismissal an application for default or deciding it ex-parte whereas clause (g) refers to setting aside any order of dismissal of any application for default or any order passed by it ex-parte. Thus the aforesaid provision makes it clear that for setting aside any order passed ex-parties this Tribunal shall have the power and jurisdiction of Civil Court. Order IX Rule 13 of the CPC prescribes that any order passed ex-parte can be set aside if the court is satisfied that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall set aside the ex-parte order passed by it.

3. 12. In the instant matter plea of the MA applicants is that any summons was not served to them. In the original OA case service report of summons served through hand and by post has been filed by the Bank annexing the postal receipt and service of summons through post is presumed to be served if properly addressed and prepaid (Section 27 of the general Clauses Act) but even if same is not accepted due to non- filing of track report then also there is proof of proper service because hand delivery was effected through Tapan Mandal who had received the summons for (contd/...)

22.7.2023

Siliguri himself and other four defendants also on dated 25.04.2018. It is pertinent to mention that explanation of Rule 13(2) of Debts Recovery Tribunal Regulation 2024 prescribes that service includes service effected on any adult member of the family of the defendant/respondent who is residing with him. All the defendants appear to be the members of same family and defendants no. 1 & 4 are the own brothers and defendant no. 2 is the mother of principal borrower Tapan Mandal, defendant no. 1. Defendant no. 5 is the wife of defendant no. 4. This plea has not been taken by the defendants that they are not the members of same family and not residing with defendant no. 1 and defendant no. 1 specifically has not denied that he had not put his signature over the hand delivery receipts.

13. Now let us see this matter from one another angle as on several dates Ld. Counsel Ms. Lipi Mahanayak had appeared before the Tribunal for defendant no. 1 and undertook to file the vakalatnama to which she never filed. Further when the matter was proceeded ex-parte against the defendants vide order dated 16.01.2020. Ld. Counsel Mr. D. Bhattacharjee appeared with vakalatanama of the defendant no. 1 Mr. Tapan Mandal and filed I.A. No. 73 of 2021 to recall the order which he later on did not press.

14. Question arises that why without any instruction 3-4 dates any Ld. Counsel will appear in any matter for a particular defendant and even if for the sake of argument it is accepted then what would be the answer of the defendant No.1 on his signature putforth at vakalatnama which has been filed by Ld. Counsel Mr. D. Bhattacharjee alongwith I.A. No. 73/2021 and if the Ld. Counsel Mr. D. Bhattacharjee's vakalatanma is also fabricated then who had appeared before the Notary for sworn-in an affidavit on 6^th February 2021, which bears the signature of Tapan Mandal, Ld. Counsel Mr. D. Bhattacharjee and Notary Kaushik Goswami. It appears that it is a perfect case of filing false affidavit while filing the instant Misc. application by Tapan Mandal (Misc. Case No. 3/2023) but this Tribunal refrains to file any criminal case against Tapan Mandal.

15. From the sequence of events mentioned hereinabove, it is crystal clear that proper service of summon was effected upon the defendants but even then they did not file (contd/...)

*Ms.* 22.7.2023

Siliguri their WS and when the matter was already disposed of by passing ex-parte order they are trying to reopen the matter so that it may be lingered for another considerable period as per their wish. In this case Misc. Applicants have not appeared before this Tribunal with clean hands and the settled law is that the party who does not come with clean hands is not entitled to get any relief and very cleverly it has not been disclosed in the condonation of delay petition that when they came to know about the passing of ex-parte order and thus these MAs and condonation petition are not maintainable.

1. 16. By filing Misc. Applications on frivolous grounds the applicants consumed precious time of this Tribunal.

2. 17. In case of **Dr. Budhikota Subbarao vs K. Parasuram (AIR 1996 SC 2687)** Hon'ble Supreme Court criticized the practice of frivolous petitions and held that no litigant has a right to unlimited drought on the court time and public money in order to get his affairs settled in the manner as he wishes and the easy access to justice should not be misused as a license to file misconceived or frivolous petitions.

3. 18. In case of **Rajappa Hanamantha Ranoji vs Mahadev Channabasappa {(2002) 6 SCC20}** the Hon'ble Supreme Court has held as below:

*"It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including imposing of exemplary costs."*

1. 19. In case of **National textile Corporation vs Kunmj Beharilal {AIR 2010 (DCC) 199}** Hon'ble Delhi High Court has held that frivolous litigation clogs the wheels of justice making it difficult for courts to provide easy and speedy justice to the genuine litigants. Hon'ble High Court further held that a strong message is required to be sent to those litigants (whether Government or Private) who are in the habit of challenging each and every order of the trial court even if the same is based on (contd/...)

*Am* 22/7/2018

Siliguri sound reasoning and also to those litigants who go on filing frivolous applications one after another.

1. 20. In this view of the matter all the four Misc. Application are hereby **dismissed** with exemplary cost of Rs. 25,000/- (Rupees Twenty five Thousand Only) against each of the four applicant in favour of the Bank which has to be realized by the Ld. Recovery officer along with the R.C. amount.

2. 21. Let a copy of this order be sent/served to both the parties free of cost and also one copy to Ld. Recovery Officer.

3. 22. Let the record be consigned to the record room after uploading the order on the website of the Tribunal.

*Rakesh Pati Tiwari* **(RAKESH PATI TIWARI)** 22.7.2016 **Presiding Officer** **DRT, Siliguri**

Siliguri