Jagdeepsingh Khalsa vs Kotak Mahindra Bank Limited on 15 May 2026

JUDGMENT

1. 1. This Review Application has been filed by the Applicants-original defendants seeking review/recall of the ex-parte judgment and order dated 28.05.2015 passed by this Tribunal in OA No:140/2014.

2. 2. The brief contentions of the Applicants are that the opponent-Bank had filed O.A. No.140/2014 under Section 19 of the RDB Act and Financial Institutions Act, 1993 for recovery of Rs.17,66,978.09 together with interest, alleging default in repayment of financial assistance granted for commercial vehicles. It is further stated that according to the Bank, the applicants failed to pay instalments, resulting in the account being classified as NPA.

3. 3. It is further submitted by the Applicants that they were never served with summons/notices issued by this Tribunal in the aforesaid O.A. Moreover, the record reveals that notices sent by RPAD were returned with postal endorsements such as "Door Locked" and "Dead Letter Office." Thereafter, the Bank obtained permission for substituted service through publication in the Gujarati newspaper "Sandesh". Since none appeared on behalf of the defendants, this Tribunal proceeded ex-parte against them vide order dated 20.03.2015 and ultimately allowed the O.A. vide judgment dated 28.05.2015.

4. 4. The Applicants further submitted that they became aware of the proceedings only in June 2015 when they received a copy of the judgment at their workshop premises, which had allegedly remained closed since 12.06.2012. It is further stated that no notices were ever served at their residential address in Adipur, Kutchh.

1. 5. The applicants have further contended that they are Punjabi-speaking persons and do not read Gujarati newspapers and therefore could not have knowledge of the paper publication made in "Sandesh."

2. 6. The applicants have also raised various objections on merits including wrongful classification of the account as NPA in violation of RBI guidelines, illegal charging of penal interest, charging of excessive rate of interest at 14%, and denial of liability towards the amount claimed by the Bank.

3. 7. It is further stated that all three trucks financed by the Bank remained in their possession and operational, and that they had already paid 20 instalments for each truck, totalling to 60 instalments.

4. 8. On these grounds, the Applicants have prayed for review/recall of the judgment dated 28.05.2015 and sought interim stay of execution and implementation of the recovery order.

5. 9. The Opponent (Original Applicant) on the other hand has filed a detailed reply opposing the Review Application preferred by the Applicants/Original Defendants seeking review of the ex-parte judgment dated 28.05.2015 passed in Original Application No. 140/2014 and for stay of further recovery proceedings.

6. 10. The Bank has contended that the Review Application is not maintainable as the defendants were duly served through paper publication in the Gujarati newspaper "Sandesh" dated 27.10.2014, after postal notices

sent by RPAD were returned with endorsements such as "Unclaimed" and "Intimated." Despite sufficient opportunity, the defendants failed to appear before the Tribunal, leading to an ex-parte order dated 20.03.2015 and subsequent judgment. According to the Bank, the defendants deliberately avoided service and cannot now allege non-service of summons.

1. 11. It is further submitted that the Applicants deliberately avoided service and cannot subsequently seek review merely on the ground that they do not read Gujarati newspapers. It is further submitted that no special circumstances as required under Section 22 of the RDB Act were established to justify review of the judgment. Further, the Applicants failed to disclose any substantial or bona fide defence on merits against the Bank's claim or deny execution of loan documents.

2. 12. It is further submitted that the proper remedy available to the Applicants who were aggrieved by the judgment, was to file an appeal under Section 20 of the RDB Act before the Appellate Tribunal rather than seeking review before the same Tribunal. It is further stated that the review application is an abuse of process of law and an attempt to reopen the matter after deliberately remaining absent during proceedings.

3. 13. It is further contended that the review application was filed with mala fide intention solely to delay recovery proceedings and deprive the Bank from enjoying the fruits of the Recovery Certificate. The Bank alleged that the Applicants adopted dilatory tactics and raised false, frivolous, vexatious, and afterthought contentions to frustrate recovery.

14. It is further submitted that permitting such review would amount to conducting a fresh trial, contrary to the object and summary procedure contemplated under the RDB Act. It reiterated that the judgment was passed strictly in accordance with law after proper service and sufficient opportunity.

15. Accordingly, the Bank prayed that the Review Application and request for stay of recovery proceedings be dismissed with exemplary costs.

16. I have heard the Ld. Counsels for both the parties and perused the records. By this RA, the Applicant/Defendant has prayed for setting aside the exparte judgement dated 28-05-2025 passed in OA No: 140/2014. Before proceeding to decide the case on merit, it is necessary to refer the procedural Law which empowers this Tribunal to set aside any order passed by it exparte. In this connection, the **Section 22 Sub Clause 2 Recovery of Debts & Bankruptcy Act** is necessary to be referred which is as under:

**Section 22 - Procedure and Powers of Appellate Tribunal-**

1. 1) \_\_\_\_\_

2. 2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matter namely :-

1. (a) \_\_\_\_\_

2. (b) \_\_\_\_\_

3. (c) \_\_\_\_\_

4. (d) \_\_\_\_\_

(e) \_\_\_\_\_

(f) \_\_\_\_\_

(g) Setting aside any order of dismissal of any application for default or any order passed by it exparte.

(h) \_\_\_\_\_

A bare reading of this provision makes it clear that while dealing with any application for setting aside any exparte judgement or order, this Tribunal has got the same power as are vested in Civil Court under the Code of Civil Procedure 1908.

17. In this regard, **Order 9 Rule 13 of Civil Procedure Code** also deserves reference which is as under :- **"13. Setting aside decree exparte against defendants - In any case in which a decree is passed exparte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court 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 make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:**

**[Provided further that no Court shall set aside a decree passed exparte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.]"**

18. On common reading of Section 22 of a Recovery of Debt and Bankruptcy Act, 1993 and Order 9 Rule 13 Civil Procedure Code, it can be concluded that there are only two conditions under which this Tribunal is empowered to set aside an exparte judgement.

- (I) The summons were not duly served.

- (II) The Defendants were prevented by a valid reason from attending Tribunal.

19. Keeping all these legal preposition in mind, while examining the case in hand, it appears that the Applicant/Defendant has prayed for setting aside the exparte judgement passed in OA No: 140/2014 on the ground that the summons sent through RPAD against the Applicant/Defendants were returned with Postal endorsement such as "Door Locked" and "Dead Letter Office" and the summons were held to be sufficiently served on the basis of substituted service through publication of summons in Gujarati newspaper (Sandesh) dated 27-10-2014. It has further been submitted that the Applicant/Defendants are Punjabi speaking people and they do not understand Gujarati language. On these grounds, it has been submitted that the summons cannot be held to be sufficiently served on the Applicant/Defendant and the exparte judgement deserves to be set aside.

20. The other contentions of the Applicant/Defendant pertain to their contention on merit which cannot be touched at this juncture unless any conclusion has been arrived that the summons in this case was not duly served. It is also necessary to be made clear that no further ground showing any sufficient cause due to which the Applicant/Defendant were prevented by a valid reason from attending the Tribunal is assigned in the RA in hand, by the Applicant/Defendant.

21. While examining the contention of the Applicant/Defendants that the summons sent through post was not served on the Applicant/Defendants because of the fact that those summons were sent at the Workshop of the Applicant/Defendant which was closed for so many years but surprisingly a copy of the judgement dated 28-05-2015 passed by this Tribunal in OA No: 140/2014 was received by the Applicant/Defendants on the address of the same workshop in June 2015 i.e. well within limitation period of filing of the application for setting aside the exparte judgement. This contention does not appear to be believable that on one hand, the Workshop premises of the Applicant/Defendants was closed since 12-06-2012 and that is why any correspondence to that Workshop has been returned back with endorsement "Door Locked" but on the other hand, the copy of judgement was very duly and promptly served to the Applicant/Defendants on the same address.

22. It will not be out of place to mention here that it is not the contention of the Applicant/Defendants that it has provided any other address to the Respondent Bank from whom the loan was taken, if it is being claimed that the Applicant/Defendants was not being available at its Workshop address since 12-06-2012 because of the change in the address, is not intimated to the Bank from which the borrower has taken loan, it cannot be expected from the Bank to sent the notice of summons to any other address than what is available in the records of the loan document of the Bank.

23. As far as service through substituted mode i.e. by way of publication in Gujarati Newspaper (Sandesh), it is very validly justified and legally permissible mode of service of summons as provided in the Civil

Procedure Code as well as in the RDB Act and for persons who are in business in Gujarat for some time, the defence that he is not acquainted with Gujarati language, is further a defence for the sake of defence only and not reliable at all. The fact that the summons were published in the Gujarati newspaper on 27-10-2014 is an admitted fact and accordingly, the service of summons through substitute service of publication in this case is flawless and without any discrepancy.

24. In the facts and circumstances as elaborated above, there appears no ground to believe that the summons in OA No: 140/2014 were not duly served on the Applicant/Defendants in that OA case and as it is mentioned above, the Applicant/Defendants have not stated any other ground to show any sufficient cause which has prevented the Applicant/Defendants from attending this Tribunal. Accordingly, there is no valid and justifiable ground to set aside the exparte judgement dated 28-05-2015 passed in OA No: 140/2014.

Accordingly, this RA deserves to be dismissed with no order as to cost.

Let this file be consigned to records.

Pronounced in the Open Tribunal on **15th May, 2026.**

(PANKAJ KUMAR UPADHYAY) PRESIDING OFFICER, DRT-II, AHMEDABAD.

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