Gaurav Katyal vs Canara Bank & Ors.

The present case was heard and reserved for orders by this Tribunal vide order dated 08.05.2026.

Learned counsel for the appellant submitted that the appellant had handed over the entire property including the machinery as well as the other assets to the respondent-Bank with request to sell the same for satisfying the dues so that the other property mortgaged with the Bank may not be sold and accordingly, the possession was taken and selling of the machinery and other items were also started. It was further contended that in the year 2018, the original application no. 541/2018 was filed by the respondent-bank, in which the appellant appeared on the first date and raised two objections orally. It was also contended that the respondent-Bank is not entitled for any interest from 2016 to 2019 as the entire building with accessories are in the possession of the Bank and if any amount is still due, the appellant is ready to pay the same.

Learned counsel for the appellant further submitted that the respondent-Bank was asked to take instruction, but the counsel for the bank could not obtain the same as the case was being adjourned continuously i.e. 07.09.2018, 03.12.2018 and 07.12.2018. It was further contended that on 25.03.2019, the appellant could not appear due to death of his elder brother.

It was further contended that the ground of dismissing the recall application filed by the appellant is non-appearance of the counsel for the appellant on the earlier dates, is totally against the facts. It was further contended that the reason was given, but no findings have been given by the Tribunal below in the order impugned, therefore, the same is liable to be set aside. The Tribunal below has to consider while passing the order impugned as to why the counsel could not appear, but no reason has been given in the order impugned, therefore, the same is patently illegal and liable to be set aside. It was, therefore, prayed that the order impugned may be set aside and the appeal may be allowed.

Learned counsel for the respondent-Bank submitted that the appellant appeared on the first date and raised two oral objections, as perusal of order dated 04.06.2019 passed by the learned Presiding Officer in M.A. No. 31/2019 clearly reveals that summons were issued for appearance on 30.07.2018, but despite service, none of the defendants appeared on 30.07.2018 since the notice pertaining to defendant nos. 1 to 4, 10 & 11 had returned undelivered to the Tribunal so the Tribunal ordered for publication in respect of defendant nos. 1 to 4, 10 & 11 and 07.09.2018 was fixed for appearance. It was further contended that in the meantime, only defendant no. 2 appeared through counsel on 23.08.2018 and filed vakalatnama, but thereafter the counsel for the defendant no. 2 did not appear on 07.09.2018, 15.10.2018, 03.12.2018, 07.12.2018 and 25.03.2019, hence the Tribunal below had no other option but to decide the case ex-parte vide judgment dated 27.03.2019. It was, therefore, prayed that the appeal filed by the appellant may be dismissed with heavy costs.

Having heard the learned counsels for the parties and considering the material available on record, undisputedly, the respondent no. 2 was granted some financial assistance by the respondent no. 1-Bank through its partners respondents no. 3 to 6, to which the respondent nos. 3 to 9 including the appellant stood as guarantors. Since the borrowers did not adhere to the terms of loan agreement, therefore, the account was classified as NPA on 09.04.2015 and the respondent-Bank filed the present original application against the borrowers including the appellant for recovery of Rs. 61,77,500/- along with pendentelite and future interest in cash credit limit account and Rs. 5,38,65,400/- along with pendentelite and future interest in the Packing Credit Limit Account, which were decreed ex-parte vide judgment dated 27.03.2019. Against the said ex-parte order, the defendants including the appellant filed the M.A. No. 31/2019 before the Tribunal below for recalling the same, which was dismissed vide order impugned. Being aggrieved by the said order, the appellant (defendant no. 7) has filed the present appeal.

It is stated that after filing the O.A. by the Bank, summons were issued to the defendants including the appellant, but despite service, none appeared on behalf of defendants, therefore, they were proceeded ex-parte vide order dated 25.03.2019, as it is evident from paragraph no. 10 of the judgment and decree dated 27.03.2019 passed by the Tribunal below in the O.A. filed by the respondent-bank.

The sole ground taken by the appellant for recalling the ex-parte judgment and decree dated 27.03.2019 is "the respondent-Bank was asked to take instructions". Thereafter, on three dates i.e. 07.09.2018, 03.12.2018 and 07.12.2018, the case was adjourned only on the account of reasons that the Bank's counsel could not obtain instructions. On 25.03.2019, the counsel for the appellant could not appear due to death of his elder brother, hence the defendants were directed to be proceeded ex-parte, but in support of it, the appellant has not filed any order-sheet of the Tribunal below, which may show that the case was being repeatedly adjourned at the behest of the counsel for the Bank. However, the meaning of non-compliance of the direction of the Tribunal below by the Bank is not that neither the appellant nor his counsel would appear and contest the case.

It is to be seen that vide order dated 04.06.2019, the Tribunal below directed to issue the summons for appearance of the defendants on 30.07.2018, but despite service, none of the defendants appeared on the said date, as only notice pertaining to the defendant nos. 1 to 4, 10 & 11 had returned as undelivered, therefore, the Tribunal below has ordered for service of summons through publication in respect of the said defendants only, because the summons in respect of the appellant (defendant no. 7) was not returned, therefore, the service of notice upon him was presumed to have been made. However, the appellant has not pleaded in the present appeal that no summons was issued/served to him. Thus, the finding given by the Tribunal below for non-appearing of the defendants has not been rebutted by the appellant, as the appellant has pleaded the case in his own way. It is settled principle of law that unless and until the finding given by the Tribunal below with regard to the grievance of the appellant is proved that the same is against the facts and law, the same cannot be touched/interfered by the appellate authority, which has not been done by the appellant in the present case. Hence the appeal filed by the appellant is liable to be dismissed.

The present case was reserved for orders on 08.05.2026 and thereafter, the appellant filed an application being I.A. No. 909/2026 with prayer that this court may be pleased to defer the passing of judgment in the present appeal, in reference to which the order dated 08.05.2026 has been passed before deciding the pending amendment application filed in the present appeal to meet the ends of justice.

It appears that an amendment application being I.A. No. 131/2021 was filed before this Tribunal on 24.09.2021. While going through the contents of the said application, it is found that the amendment sought by the appellant is pertaining to the merits of the case, whereas the present appeal has been filed by the appellant only against an order, by which the application for recalling the ex-parte judgment and decree has been rejected, therefore, the relief sought in the amendment application cannot be considered being not maintainable in the present case. Thus, the same is also liable to be rejected and the application for deferring the judgment also.

In view of the discussion as recorded above, there is no infirmity or illegality in the order impugned, hence the same does not call for any interference by this Tribunal. Consequently, the appeal filed by the appellant is dismissed being devoid of merits and the applications as mentioned above also.

A copy of this order be forwarded to the parties concerned as well as the DRT concerned and be also uploaded on the e-drt portal.