Manjulaben vs KOTAK MAHINDRA BANK LIMITED on 29 July 2026

**JUDGMENT**

1. 1. The present Miscellaneous Application has been filed by the Applicants under **Section 22(2)(g) of the Recovery of Debts and Bankruptcy Act, 1993**, seeking setting aside of the ex parte judgment and order dated **07/05/2022** passed by this Tribunal in **Original Application No. 1107 of 2019**, along with consequential reliefs.

2. 2. The case of the Applicants, in brief, is that the summons in the original application were allegedly not duly served upon them. It is their contention that although summons were stated to have been sent by RPAD on 07/11/2019 and later published in "*Gujarat Samachar*" on 26/12/2019, they did not receive actual notice of the proceedings and therefore could not appear before this Tribunal.

3. 3. It is further contended that when the Respondent Bank filed its pursuiss dated 13/08/2021 seeking to proceed ex parte against the Applicants and to take the affidavit in support of the claim on record, the Tribunal ought to have issued a fresh notice before proceeding ex parte, particularly in view of the prevailing COVID-19 situation.

According to the Applicants, they remained unaware of the proceedings, the ex parte order, and the final judgment dated 07/05/2022. They state that they came to know of the recovery proceedings only upon service of the demand notice dated 07/07/2022 in Recovery Proceedings No. 90 of 2022, whereupon they applied for certified copies and thereafter filed the present application.

1. 4. The Respondent Bank has filed its reply at Exh. R/6 and has strongly opposed the application. It is contended that the Applicants were duly served, including by way of paper publication, and that the address mentioned in the present application is the same as that in the Original Application. It is submitted that the Applicants deliberately abstained from appearing despite sufficient opportunity, and that the present application is, in substance, an attempt to reopen a concluded matter and delay recovery proceedings. The Respondent Bank has further contended that the application is misconceived and amounts to an impermissible attempt at review under the guise of a miscellaneous application.

**Point for Determination**

The principal question arising for determination is whether the Applicants have made out a case for setting

aside the ex parte judgment and order dated 07/05/2022 in O.A. No. 1107 of 2019 on the grounds of:

- a. non-service or improper service of summons; or

- b. sufficient cause preventing their appearance before this Tribunal.

**Discussion and Findings**

- 5. I have considered the pleadings, the record, and the rival submissions. I have also perused the material placed on record with respect to service of summons and the subsequent proceedings.

- 6. The record indicates that summons in the original application were issued and service was also attempted through **paper publication**. In view of the service report and the proceedings recorded in the original application, this Tribunal had proceeded on the basis that the Applicants had been duly served. The Applicants, on the other hand, merely assert that they did not personally come across the newspaper publication. Such a plea, by itself, does not displace the official record of service, particularly when substituted service has been effected in accordance with law.

- 7. Under **Section 22(2)(g) of the Recovery of Debts and Bankruptcy Act, 1993**, the Tribunal is guided by the principles of natural justice and, for the purpose of

setting aside an ex parte decree/order, the principles underlying **Order IX Rule 13 of the Code of Civil Procedure, 1908** are attracted. The defendant seeking such relief must establish either that the summons were not duly served or that he was prevented by sufficient cause from appearing when the matter was called on for hearing.

1. 8. In the present case, the Applicants have failed to substantiate any legally sustainable ground to demonstrate that the summons were not duly served. More importantly, once the record reflects service by substituted mode and the Applicants remained absent for a considerable period, the bald plea of non-knowledge, unsupported by cogent material, cannot be accepted.

2. 9. Equally, the application does not disclose any specific and convincing "sufficient cause" explaining the continuous absence of the Applicants from the proceedings before this Tribunal. A mere general statement that they were unaware of the case is not enough to invoke the extraordinary relief of setting aside an ex parte judgment, especially when the service record indicates otherwise.

3. 10. The grievance of the Applicants regarding alleged irregularities in procedure, including matters relating to filing of affidavit in support of claim, production of documents, or other steps taken by the Respondent Bank

in the original proceedings, cannot by themselves constitute grounds for setting aside an ex parte decree unless the Applicants first establish that they were unlawfully prevented from participating in the proceedings. Procedural objections of this nature are not sufficient to undo a final adjudication in the absence of proof of non-service or sufficient cause.

1. 11. The law on the subject has been authoritatively laid down by the Hon'ble Supreme Court in **Sunil Poddar & Others v. Union Bank of India, AIR 2008 SC 1006** where it was held that for the purpose of setting aside an ex parte decree/order, the relevant consideration is whether the defendant had notice of the date of hearing and sufficient time to appear and answer the claim. Once these conditions are satisfied, mere irregularity in service is not enough to set aside the ex parte decree.

2. 12. Applying the aforesaid principles to the facts of the present case, this Tribunal finds that the Applicants have failed to establish either of the statutory grounds required for grant of relief. The application appears to have been filed only after initiation of recovery proceedings, and no convincing explanation has been offered for the long silence and absence during the pendency of the original application.

3. 13. This Tribunal is, therefore, of the considered opinion that the Applicants have not made out any case for

interference with the ex parte judgment and order dated 07/05/2022 passed in O.A. No. 1107 of 2019.

**ORDER**

- • In view of the foregoing discussion, the Miscellaneous Application is **dismissed**. There shall be **no order as to costs**.

- • The record of **R.P. No. 90 of 2022**, along with a copy of this judgment, be returned to the office of the concerned Recovery Officer for further proceedings in accordance with law.

- • File be consigned to the record room.

**Pronounced in open Tribunal on 29th July, 2026.**

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

\*ykb\*