WATER EDGE HOSPITALITY PRIVATE LIMITED AND ORS vs STATE BANK OF INDIA on 15 October 2025

**JUDGMENT**

1. 1. The Applicants have filed the present Miscellaneous Application u/s 22(2)(g) of Recovery of Debts & Bankruptcy Act, 1993 to set aside the judgment and order dated 28/09/2022 passed ex-parte by this Tribunal in Original Application No.44 of 2022 and for other incidental relief.

2. 2. The brief facts of the case, as pleaded by the Applicants, may be stated as follows:

1. 2.1 The Respondent-Bank has filed the Original Application No.44 of 2022 against Applicants to

recover a sum of Rs.11,07,47,331.00 with future interest from the date of the said application as well as cost of the said application. It appears from the record and proceedings of the said Original Application No.44 2022 that the Registry of this Tribunal has issued summons and notice dated 17/01/2022 to be served upon the parties through ordinary manner returnable on 25th February 2022. It is specifically mentioned in the said summons and notice dated 17th January 2022 that copy of Memo of Application along with copy of documents and affidavits are annexed. However the fact remains that as stated in summons they are not annexed. On returnable day i.e. 25th February 2022, the Respondent Bank is directed to file service affidavit with respect to service of summons. It is incumbent upon the part of the registry of this Tribunal as per Order 9 Rule 6 of Code of Civil Procedure to direct the Respondent Bank to serve the parties afresh by issuing fresh summons. It also appears from Original Application No.44 of 2022 that Respondent Bank has on 25th February 2022 taken time to comply the said order and said Original Application is adjourned to 19th April 2022, but the said Original Application no.44 of 2022 without any proponent Application, in violation of principles of natural justice, suo moto taken on board on 6th April 2022 and adjourned to 11th May 2022 for further proceeding. It also appears from the record and proceedings of the said Original Application No.44 of 2022 that on 11th May 2022 Advocate of Respondent Bank filed service purshis vide Exhibit A/5 for service of summons notices issued by this Tribunal in the year 2022. The Respondent Bank has

along with the said service affidavit placed on record postal receipt showing posting of summons and notices to parties. It is pertinent to note that paper book contains 206 pages. The Respondent Bank posted summons having weight of 10 grams, while the weight of entire paper book is 125 grams approximately. Admittedly entire paper book along with the said summons and notice is not posted nor served upon the Applicants. It is incumbent upon the part of Respondent Bank to serve entire paper book along with the summons and notice as per Rule 11 of Debts Recovery (Procedure) Rules, 1993, which is mandatory in nature. Thus the alleged service is not a good service in eye of law. It is also shocking that Registry of this Tribunal has not directed Respondent-Bank to file suit claim affidavit, which Respondent-Bank suo moto on 11th May 2022 filed vide Exhibit A/6. It is also shocking that neither Registry of this Tribunal nor this Tribunal has directed Respondent-Bank to produce original documents after the said Original Application is adjourned to 1^st July 2022. It appears that Registry of this Tribunal in violation of statutory provision of RDDB & FI Act and Debts Recovery (Procedure) Rules, 1993 ignoring fact that the said Original Application no.44 of 2022 was already adjourned to 1st July 2022 allowed Respondent- Bank to produce original documents, which were not verified by this Tribunal. However claim affidavit is not served upon the Applicants. It also appears from the record and proceedings of the said Original Application No.44 of 2022 that Respondent Bank has not moved any application with a request to proceed ex parte against Applicants before registry of the this

Tribunal or before this Tribunal, who vide its order dated 2nd August 2022 set Applicants ex parte. However the fact remains that the claim affidavit which is filed on 11th May 2022 was not served upon then Applicants not having opportunity to inspect original documents.

1. 2.2 The Applicants have never received any summons and notice nor have signed any acknowledgment slip issued by registry of this Tribunal. The act of Respondent Bank is without authority and therefore there is no legal and/or valid service in eye of law.

2. 2.3 Thereafter the Respondent Bank has prematurely filed its affidavit in support of suit claim to prove the documents placed on record of Original Application No.44 of 2022 by filing the suit claim affidavit at Exhibit A/6. However, it transpires from the order sheet that no attempt has been made to serve the said suit claim affidavit to the Applicants and/or any debtor. Even original documents were not produced by the Respondent Bank as per RDDB and FI Act as well as rules and/or regulation framed thereunder. This Tribunal on 28th September 2022 passed ex-parte judgment and issued Recovery Certificate as prayed for by the Respondent Bank.

3. 2.4 Being aggrieved and dissatisfied with the said ex-parte judgment and order dated 28th September 2022, passed by this Tribunal the Applicants have preferred the present Miscellaneous Application on various grounds.

3. The Respondent Bank has filed its reply to the present Miscellaneous Application vide Exh.R/7 and has denied the statements and averments made by the Applicants in the Application. The Respondent Bank has further contended that the Respondent had already produced on

record postal receipt along with track report vide Exh.A/5 from which it becomes clear that summons was duly served upon all the Applicants on 22/01/2022 and it is an admitted position that the Applicants have not appeared in the matter in spite of service of summons. The Applicants were fully aware about filing of O.A. No.44 of 2022 and this Tribunal had passed judgment on 28/09/2022 in accordance with law and after going through the records of the said O.A. Therefore, the Applicants are now estopped from making any grievance regarding judgment dated 28/09/2022 passed in O.A. No.44 of 2022. In these circumstances, the Respondent Bank has prayed for dismissal of the present Miscellaneous Application.

1. 4. I have heard Ld. Counsels for the rival parties at length. Ld. Counsel for the Applicants has filed his written submissions vide Exh.A/31, whereas Ld. Counsel for the Respondent Bank has filed his written submissions vide Exh.R/32.

2. 5. Ld. Counsel for the Applicants has relied on following judgments in support of his submissions:

- ➤ Nahar Enterprises V/s. Hyderabad Allwyn Ltd. and others, (2007)9 SCC 466

- ➤ Bimla Wati Sharma V/s. State Bank of Patiala, MANU/PH/0027/1992 = AIR 1992 P & H 101

- ➤ Order dated 22/02/2021 passed by Hon'ble DRAT, Mumbai in Misc. Appeal No.5/2021

- ➤ Memon Adambhai Haji Ismail V/s. Bhaiya Ramdas Badiudas and others, AIR 1975 Guj. 54

- ➤ Sunil Gupta & others V/s. ARC (India) Ltd. and others, delivered by Hon'ble Bombay High Court in

Writ Petition No.4885 of 2022, decided on 12/09/2022

1. 6. Ld. Counsel for the Respondent Bank has relied on the following judgments in support of his submissions:

- ➤ Sunil Poddar & Others V/s. Union Bank of India, delivered by Hon'ble Supreme Court of India in Appeal (Civil) No.85 of 2008, decided on 08/01/2008

- ➤ Judgment of DRT-I, Ahmedabad in M.A. No.12 of 2023, decided on 09/09/2024

2. 7. At the outset, Ld. Counsel for the Applicants vehemently argued that the summons of O.A. No.44 of 2022 was not legally served to the Applicants herein. During the pendency of the present M.A., the Applicants have filed Affidavit Exh.A/33 contending that mortgage is alleged to have been created by Alpana S. Tandel, whereas Original Application No.44 of 2022 was filed by the Bank against Alpa S. Tandel. Therefore, the summons was issued in the name of Alpa S. Tandel and not on Alpana Suresh Tandel.

3. 8. The aforesaid argument of Ld. Counsel for the Applicants cannot be accepted as there may be some typographical error while mentioning the name of addressee as Alpa S. Tandel. But the Bank has rightly sent the summons at the correct address available on its records. Therefore, this Tribunal does not find any defect in addressing the summons in the name of Alpa S. Tandel as alleged.

4. 9. The Applicants have further contended in the Affidavit at Exh.A/33 that from 22/01/2022 to 25/01/2022, they were out of Daman and stayed at Diu in Hotel Radhika Beach Resort & Spa. The Applicants have also produced email dated 26/05/2025 along with tax invoice sent by the Beach Resort Authority to them.

1. 10. The Respondent Bank has filed its reply Exh.R/35 against the aforesaid Affidavit filed by the Applicants and contended that no averments are made by the Applicants in the M.A. that the Applicants had gone to Diu from 22/01/2022 to 25/01/2022. Therefore, the Applicants have created and concocted a false story to achieve their willful design. It is further contended that the summons were sent by Registered Post at the same address mentioned in the M.A. and the same are duly served and proof is already on record.

2. 11. On perusal of service purshis filed by Respondent Bank at Exh.A/5 in O.A. No.44 of 2022 along with track reports, it appears that the summons was sent at the same address as mentioned in the M.A. and the same were delivered to Alpa S. Tandel (Applicant No.4 herein). The documents produced by the Applicants along with their Affidavit Exh.A/33 nowhere shows the name of Alpa S. Tandel. Therefore, it is not possible to believe that she was also travelling to Diu, along with other Applicants, during the period from 22/01/2022 to 25/01/2022. Hence, the said Affidavit and documents produced with it appears to be an after-thought on the part of the Applicants as the Applicants had also not made any such averment in the memo of their M.A. The Applicants have also not produced any cogent evidence to disbelieve the remark made by the Postal Authority in the track records that the consignment was delivered to Alpa S. Tandel (addressee), who is a family member, as all the Applicants in this case are two brothers namely Mr. Naresh and Mr. Suresh and their wives i.e. Mrs. Alpa Suresh and Mrs. Nirmala Naresh. Therefore, Mrs. Alpa Suresh was duly authorized to receive summons on behalf of all other Applicants who were Defendants in O.A. No.44 of 2022.

1. 12. In view of the aforesaid facts and documents on record, this Tribunal is of the opinion that summons of O.A. No.44 of 2022 were duly served to the Applicants herein by Registered Post.

2. 13. The other contention of the Applicants is that the Respondent Bank has not filed service affidavit, but has filed service purshis at Exh.A/5, which is contrary to rules. This Tribunal does not find any force in this submission because the Respondent Bank has made sufficient declaration about service of summons before this Tribunal, though by way of purshis and not Affidavit. At the most, it can be said to be a procedural irregularity, which cannot disprove the service of summons to the Applicants.

3. 14. The Applicants have further contended that the paper book contained 206 pages and the Respondent Bank has posted summons having weight of 10 grams only, while the weight of entire paper book is 125 grams approximately. Thus, the alleged service is not a good service in the eyes of law. He drew the attention of this Tribunal to the following observations of **Hon'ble Supreme Court in Nahar Enterprises' case (Supra)**:

*"7. The learned Judge did not address itself the question as to how a defendant, in absence of a copy of the plaint and other documents, would be able to file his written statement. The Court, furthermore, in our opinion, committed a manifest error in so far as it failed to take into consideration that the summons having been served upon the appellant after the date fixed for his appearance, it was obligatory on its part to fix another date for his appearance and filing written statement and direct the plaintiff to take steps for service of fresh summons. This legal position is explicit in view of the provisions of order 9 Rule 6 (1) (C) of CPC which reads:*

*"When summons served but not in due time - if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a*

*future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant."*

*8. The court, therefore, committed an illegality in dismissing the application for setting aside the ex-parte decree. It was a fit case where the Court should have exercised its jurisdiction under order 9 Rule 13 of CPC."*

15. The facts of the aforesaid case before Hon'ble Supreme Court were that summons was served upon the appellant after the date fixed for his appearance and therefore it was held that the Trial Court committed an illegality in dismissing the application for setting aside the ex-parte decree. In the case on hand, it is not the case of the Applicants that the summons was served to them after the date fixed for their appearance. Hence, the aforesaid judgment of Hon'ble Supreme Court in **Nahar Enterprises' case (Supra)** is not helpful to the Applicants.

16. Ld. Counsel for the Applicants further drew the attention of this Tribunal to the following observations of Hon'ble **Punjab & Haryana High Court in PNB V/s. Raj Kumari's case(Supra)**:

*".....The question, therefore, was whether the physical service of summons alone could be deemed as sufficient to compel the defendant to apply for leave and the effect of his failure to do so in the absence of documents being served on him. This court held in Nand Kumar Versus Sheela Devi-MANU/PH/0394/1996: 1996(3) PLR 756 that if summons accompanied by a plaint but without annexures had been made, it cannot be taken as an effective service. The court was holding that in a summary proceeding for recovery of money the purpose of Order 5 Rule 2 CPC was to give opportunity to the defendant to make payment and*

*the compliance of Order 5 Rule 2 along with Order 37 Rule 3 CPC was mandatory in so far as it requires documents filed along with the plaint to be served on the defendant. The court ruled that the service of summons without documents was not a valid service and the decree passed despite objection by the petitioner that the documents had not been filed, was not valid and it was liable to be set aside. Without reference even to a summary procedure, the court was holding in yet another case in Ram Kumar Versus Chelu Ram MANU/PH/0334/1986: 1986 (2) PLR 219 that the documents appended with a plaint become part of the pleading and they would require to be served on the defendant."*

1. 17. In the present case, it is alleged by the Applicants that the summons was not accompanied by the paper book and therefore it is not a valid service. However, the weight mentioned by the Postal Authority on the consignment may be faulty. Even assuming for the sake of argument that the paper book was not accompanying the summons sent to the Applicants, the Respondent Bank has duly proved that the summons of O.A. was served to the Applicants by Registered Post. It is a matter of record that the Applicants have never appeared before this Tribunal in spite of service of summons to them. They could have very well raised grievance regarding non-receipt of paper book along with the summons by appearing before this Tribunal on the date fixed for their appearance.

2. 18. It is further contended by the Applicants that the Respondent Bank has prematurely filed its affidavit in support of suit claim to prove the documents placed on record of Original Application No.44 of 2022 by filing the suit claim affidavit at Exhibit A/6. However, as transpiring

from the order sheet, no attempt has been made to serve the said suit claim affidavit to the Applicants. Even original documents were not produced by the Respondent Bank as per RDDB and FI Act as well as rules and/or regulations framed thereunder. This Tribunal on 28th September 2022 passed ex-parte judgment and issued Recovery Certificate as prayed for by the Respondent Bank.

19. As stated hereinabove, when the Applicants have chosen not to appear before this Tribunal in response to the summons on any date, the grievance raised by the Applicants about alleged irregularities in procedural aspects like production of original documents by way of evidence and filing Suit Claim Affidavit, etc. cannot be entertained in view of the following provisions of **Order 9, Rule 13 of CPC:**

***"13. Setting aside decree ex parte against defendant.***

*In any case in which a decree is passed ex parte 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*** that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:

***Provided further that no Court shall set aside a decree passed ex parte 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 plaintiff's claim."***

20. From the above Rule, it becomes clear that a defendant seeking to set aside an *ex parte* decree must establish one of two grounds: (a) that the summons was not duly served, or (b) that they were prevented by "sufficient cause" from appearing. In the present case, it is established by the Respondent Bank that summons of O.A. was served to the Applicants by Registered Post, though it is contended by the Applicants herein that documents in the form of paper-book were not sent to him. Thus, it is clear that in spite of having notice of hearing above O.A. No.44 of 2022, the Applicants have chosen not to appear on the date fixed for hearing to answer the claim of the Respondent Bank herein. As far as the ground that the Applicants were prevented by "sufficient cause" from appearing, is concerned, not a single word is mentioned in entire M.A. in this regard. Meaning thereby, the Applicants have not chosen to raise this ground in their defence.

21. Even otherwise, when the Applicants have not chosen to appear before this Tribunal on the date fixed for their appearance, when it is sufficiently proved that the Applicants were having sufficient knowledge of the date of hearing. In spite of such knowledge, the Applicants absented in the proceedings. In this context, it would be pertinent to refer to the following law laid down by **Hon'ble Supreme Court in Sunil Poddar's case (Supra):**

"19. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in 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 to Debt Recovery Tribunals and Appellate Tribunals under the Act in view of Section 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."

22. Considering the aforesaid facts and circumstances of the case as well as law laid down by Hon'ble Supreme Court, this Tribunal is of the opinion that the Applicants herein have failed to make out any case for setting aside the ex-parte judgment and order dated 28/09/2022 passed by this Tribunal in O.A. No.44/2022. Therefore, the present Miscellaneous Application is devoid of merits and it is required to be dismissed. Hence, I pass the following order:

15**ORDER**

The present Miscellaneous Application is hereby dismissed with no order as to cost.

Let the records of RP No.249/2022, along with a copy of this judgment, returned back to the office of concerned Ld. Recovery Office for further proceedings in accordance with law.

File be consigned to records.

Pronounced in the Open Tribunal on 15^th October, 2025.

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

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