MRS ZAIBUNNISA A PATEL vs CORPORATION BANK on 29 August 2025

1. 1. Union Bank of India, (erstwhile Corporation Bank), M G Road, Lalbagh, Mangalore, Karnataka – 575003, represented by its Assistant General Manager, R S V Krishna. .... Respondent No.1/applicant bank/certificate holder

2. 2. M/s N S Enterprises, 20-3-251/71, 1^st Floor, Regal Plaza, Mission Street Road, Mangalore, Karnataka – 575001, represented by its Proprietor, Nazeer Shah. .... Respondent No.2/1^st defendant/1^st certificate debtor This Interlocutory Application having been heard on 03.06.2025 in the presence of Advocate Shri Puttaraju for the petitioner/2^nd defendant/2^nd certificate debtor, and Advocates M/s Shivashankar A, Manjula S and Pavitra C for the 1^st respondent/applicant bank/certificate holder, and stood over to this day for consideration, the Tribunal delivered the following:- Typed in legs IA No.469/2020 in UMA Dy No.375/2020 in OA 609/20182**ORDER**

IA 469/2020 has been filed on 12.02.2020 under S.5 of the Limitation Act, 1963 r/w S.24 of the Recovery of Debts and Bankruptcy Act, 1993 (as amended from time to time) – for short 'the Act' - by the petitioner praying to condone the delay of 141 days in filing the aforesaid Unregistered Miscellaneous Application (UMA) Dy No.375/2020. The petitioner is none other than the 2^nd defendant/2^nd certificate debtor in OA 609/2018.

2. The case set out by the petitioner/2^nd defendant/2^nd certificate debtor in IA No.469/2020 through the notary attested affidavit accompanying the IA in brief is as follows:- This petitioner had not received summons in OA 609/2018 nor a free copy of the final order dated 24.08.2019. Therefore, this petitioner had no knowledge about the proceedings before this Tribunal. This petitioner came to know about the final order dated 24.08.2019 only on 13.01.2020 when a demand notice in RC 986/2019 was received.

3. The 1^st respondent/applicant bank/certificate holder filed statement of objection on 04.02.2025 contending as follows:- The application is barred by limitation. The delay has not been adequately explained.

4. Summons sent to the 2^nd respondent/1^st defendant/1^st certificate debtor by registered post on 02.11.2020 was returned un-served with the postal endorsement 'no such person'. However, no steps appear to have been taken by the petitioner/2^nd defendant/2^nd certificate debtor for issue of summons as against the 2^nd respondent by substituted service and, therefore, the service of summons as against it is not complete. Therefore, the IA/UMA as against the 2^nd respondent/1^st defendant/1^st certificate debtor stands dismissed.

5. The only point arises for consideration is as to whether the petitioner/2^nd defendant/2^nd certificate debtor is entitled to the relief prayed for?

Typed by Kupa

6. At the outset, this Tribunal expresses its displeasure over the conduct on either side in prosecuting and defending the case. UMA Dy No.375/2020 was filed on 12.02.2020 along with IA 469/2020 for condonation of delay. Ld counsel for the 1^st respondent/applicant bank/certificate holder entered appearance in the proceedings on 15.12.2020 and undertook to file vakalath. But the said memo was filed only on 25.03.2022. Yet, vakalath was filed only on 17.11.2022. In spite of all these laches, Ld counsel for the 1^st respondent/applicant bank/certificate holder obtained adjournments from 17.11.2022 for filing a statement of objection to IA 469/2020 and eventually the same was filed only on 04.02.2025. Thus, both sides could aid in protracting and prolonging an interlocutory proceeding for the last more than five years.

7. The Point:- The 1^st respondent/applicant bank/certificate holder filed OA 609/2018 on 19.05.2018 under S.19(1) of the Act for recovery of the sum of ₹20,97,633.75 due under over draft account No.OD/01/160004 with interest thereon @11.95% per annum with monthly rests (inclusive of penal interest @2% per annum) from the defendants and by sale of the schedule mortgaged immovable property.

8. The said OA was allowed as prayed for with interest and costs as per the final order dated 24.08.2019. Pursuant thereto, a recovery certificate bearing No.986/2019 was issued on 09.10.2019 to the Recovery Officer for recovery of the certificate debt.

9. The petitioner/2^nd defendant/2^nd certificate debtor on 12.02.2020 filed UMA Dy No.375/2020 to set aside the aforesaid final order as against her and she has come up with this petition to condone the delay of 141 days in filing the same. According to the petitioner/2^nd defendant/2^nd certificate debtor, she had not received summons in OA 609/2018 nor a free copy of the final order dated 24.08.2019 and, therefore, she had no knowledge about the proceedings before this Tribunal and she came to know about the final order dated 24.08.2019 only on 13.01.2020 when a demand notice in RC 986/2019

Typed by Kaja was received. Per contra, according to the 1^st respondent/applicant bank/certificate holder, she was duly served with summons and, therefore, no sufficient reason has been shown by her in the petition to condone the delay.

10. A perusal of the OA records shows that summons in this case was sent to the petitioner/2^nd defendant/2^nd certificate debtor by registered post on 12.06.2018 and she was duly served with summons, as could be inferred from the postal acknowledgement card signed by her for having received the same and produced by the 1^st respondent/applicant bank/certificate holder in the OA proceedings. But she never appeared nor was she represented in the proceedings and thus she was declared ex-parte in the proceedings on 09.08.2019. Resultantly, the impugned final order was passed against her on 24.08.2019.

11. S.24 r/w S.2(b) of the Act says that the provisions of the Limitation Act, 1963, shall, as far as may be, apply to an OA filed under S.19(1) of the Act. Needless to say, the instant application is governed by Art.123 of the Limitation Act, 1963, which reads as follows:- <table border="1"> <thead> <tr> <th>Article</th> <th>Description of suit</th> <th>Period of limitation</th> <th>Time from which period begins to run</th> </tr> </thead> <tbody> <tr> <td>123</td> <td><i>To set aside a decree passed ex-parte or to re-hear an appeal decreed or heard ex-parte.</i></td> <td><i>Thirty days</i></td> <td><i>The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.</i></td> </tr> </tbody> </table>

12. A careful reading of Art.123 of the Limitation Act, 1963 would clearly show that when summons is duly served on defendant, the period of limitation for filing an application for setting aside a decree passed ex-parte will begin to run not from the date of knowledge of the decree but from the date of the decree itself. Irrefragably, the petitioner/2^nd defendant/2^nd certificate debtor was duly served with summons in the OA by registered post sent to her on 12.06.2018. The ex-parte final order was passed against her only on 24.08.2019. Therefore, UMA Dy No.375/2020 ought to have been filed on or Typist's Sign before 23.09.2019. But she filed the above application beyond such period i.e., only on 12.02.2020. Thus, there is a delay of 142 days in filing such application.

13. S.22(2)(g) of the Act r/w O.9 R.13 of the Code of Civil Procedure, 1908 provides for setting aside an ex-parte final order against a defendant, which provides for two reasons, namely (i) summons was not duly served and (ii) sufficient cause preventing the defendant from appearing when the suit was called on for hearing. Undisputedly, the petitioner/2^nd defendant/2^nd certificate debtor was duly served with summons in the OA by registered post sent to her on 12.06.2018. In the above circumstances, her contention to the tune that she was not aware of the proceedings is only an outright lie, which belies her contention. Thus, the reasons shown by the petitioner/2^nd defendant/2^nd certificate debtor are only vague and she raised such contentions for the sake of the application only. She has not shown any sufficient and valid reason for her non-appearance in the proceedings. In the above circumstances, the contention raised by the petitioner/2^nd defendant/2^nd certificate debtor to the effect that she was not aware of the OA proceedings and could be aware of such proceedings only on 13.01.2020 when she received the demand notice in RC 986/2019 cannot be believed even for a moment, which is only an outright lie. She was aware of the OA proceedings but she chose to abstain from the proceedings. If she wilfully abstained from the proceedings it is at her risk and responsibility only. One cannot take advantage of one's own default.

14. This Tribunal is required to weigh the explanations offered by the petitioner/2^nd defendant/2^nd certificate debtor and the acceptability of the same. The delay in this case reflects the inactivity and the inaction on the part of the petitioner/2^nd defendant/2^nd certificate debtor. The law does not permit one to sleep and to seek one's relief as and when one desires. The failure on the part of the petitioner/2^nd defendant/2^nd certificate debtor in not showing due diligence in filing the Miscellaneous Application at the right time and the delay taken in filing the same can only be construed, in the absence Typed by Kija of any valid explanation, as gross negligence and lack of bonafides on her part. If exparte final orders are set aside on flimsy grounds like these, there would be no finality to the applications filed before this Tribunal, which would adversely affect the avowed object of the Act. Thus, IA 469/2020 is devoid of any merit and thus is liable to be dismissed.

15. The petitioner/2^nd defendant/2^nd certificate debtor in UMA has submitted that she had got a valid defence on merits in the OA but was deprived of prosecuting the case in accordance with law. But she has no reason as to why she did not file a written statement in the case despite receiving summons, if she had merits of the case. Notwithstanding the above legal position, this Tribunal is inclined to condone the delay of 142 days in filing UMA Dy No.375/2020 and to afford an opportunity to the petitioner/2^nd defendant/2^nd certificate debtor to prove her case and bonafides, but not lightly. In the above facts and circumstances of the case, it may not be inappropriate if the Tribunal directs her to deposit a sum of ₹12 lakhs (Rupees twelve lakhs only) on or before 15.09.2025 by way of DD/RTGS/online transmission before the 1^st respondent/applicant bank/certificate holder. If the petitioner/2^nd defendant/2^nd certificate debtor deposits the aforesaid amount on or before 15.09.2025, the 1^st respondent/applicant bank/certificate holder shall keep such amount in a fixed deposit in the name of the Recovery Officer with auto renewal for six months. The 1^st respondent/applicant bank/certificate holder shall not disburse, close or transact with the same until further orders from this Tribunal.

16. In the result, IA 469/2020 is allowed, subject to the strict compliance of the aforesaid condition, failing which the IA shall stand dismissed for non-compliance. For reporting compliance by either side, adjourned to 18.09.2025. No costs.

*[Dictated to my P.A. transcribed by him, corrected and pronounced by me in the open Tribunal on this the 29^th day of August, 2025]*

[ IMTIAZ ALI ]

Tynan in Kip

IN THE DEBTS RECOVERY TRIBUNAL - 1, KARNATAKA AT BANGALORE

PRESENT: SRI IMTIAZ ALI PRESIDING OFFICER

Dated the 29^th day of August, 2025

**INTERLOCUTORY APPLICATION NO.469 OF 2020**

**IN UNREGISTERED MISCELLANEOUS APPLICATION Dy No.375/2020 IN ORIGINAL APPLICATION NO.609 OF 2018**

Between

Zaibunnisa A Patel, W/o late Janab Abdul Azeez Imam Patel, 1-426, Aziz Manzil, Patel Compound, K C Nagar, Tapady, Mangalore, Dakshina Kannada, Karnataka – 575003. ....Petitioner/ 2^nd defendant/2^nd certificate debtor

And

Union Bank of India, (erstwhile Corporation Bank), M G Road, Lalbagh, Mangalore, Karnataka – 575003, represented by its Assistant General Manager, R S V Krishna and another ..... Respondents/ applicant bank and certificate debtors

**ORDER**

29.8.25