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2009 DIGILAW 507 (KER)

George K. v. VS State Bank Of India

2009-06-18

P.R.RAMACHANDRA MENON

body2009
JUDGMENT P.R.Ramachandra Menon, J. 1. The petitioner is aggrieved of the dismissal of the petition filed by him for condoning the delay in filing the statutory appeal before the DRAT, Chennai, challenging Ext. R1 (a) final order passed by the DRT, Ernakulam in OA 942/99. 2. The case has got a long history. The petitioner availed a loan of Rs.10,00,000/- for construction of a building from the respondent Bank in September, 1996 and the due amount was liable to be repaid by way of 96 equal monthly instalments at the rate of 16,250/-. The terms and conditions in respect of the loan transaction were stipulated under Ext. P3 order sanctioning the loan. As per clause No. 8 of Ext. P3, the first instalment of the repayment was to start only after a period of 18 months. While so, just 11/2 years after the commencement of the repayment, the respondent Bank approached the DRT, Ernakulam by filing OA 942/99 for realisation of the entire outstanding liability, which was stated as Rs.12,87,000/-, despite the fact that, the petitioner had already effected a payment of Rs.6,70,000/- as evident from Ext. P4 statement of accounts issued by the Bank. 3. In response to the averments and allegations raised in Ext. P1 OA filed before the DRT, the petitioner filed written statement challenging the proceedings, particularly making a mention that the OA was only premature, as the amount had never become over due at any point of time. It was also pointed out that the apprehension of the Bank over the due amount was also out of place, particularly when the petitioner was having an 'FD account' in the very same Bank with sufficient amount to his credit. 4. During the pendency of the above proceedings before the DRT, the respondent Bank, on a second thought, decided to appropriate the allegedly due amount from the FD account of the petitioner and accordingly, Ext. P5 dated 26/09/2000 was issued appropriating a sum of Rs.16,75,332/- from the FD account of the petitioner without obtaining any consent from the petitioner. This in turn was subjected to challenge by filing OP No. 28019/2000 and after hearing both the sides, this Court quashed Ext. P5, by judgment dated 05/11/2002. Pursuant to the above verdict, the amount was re-transferred to the FD account of the petitioner. 5. This in turn was subjected to challenge by filing OP No. 28019/2000 and after hearing both the sides, this Court quashed Ext. P5, by judgment dated 05/11/2002. Pursuant to the above verdict, the amount was re-transferred to the FD account of the petitioner. 5. In the meanwhile, since the OA was still pending before the DRT, the petitioner offered to settle the transaction by submitting Ext. P6 dated 26/09/2003. It is the case of the petitioner that the benefits sought for by the petitioner were actually denied because of some 'ill will', hatred and ego of some officers of the Bank. However, as advised by some other prudent officers, the petitioner offered to clear the entire liability by settling the transaction for an amount of Rs.16,75,332/- (which was exactly the amount drawn by the Bank and appropriated earlier from the FD account of the petitioner as per Ext. P5). 6. While so, the OA 942/99 pending before the DRT, Ernakulam was allowed and Ext. R1 (a) order was passed whereby, the Bank was permitted to realise a sum of Rs.12,87,000/- with interest at 13% per annum, along with such other expenses as specified. It is stated by the Bank, that the petitioner, was informed of the outcome of Ext. P6 offer of settlement. The petitioner, instead of challenging Ext. R1 (a) order passed by the DRT, chose to have the matter settled and in such attempt, approached this Court again by filing WP (C) 26459/2005, simultaneously challenging the reply given by the Bank turning down Ext. P6 offer, which is produced as Ext. P13 in the said writ petition. The above writ petition was considered and disposed of by this Court as per Ext. P9 judgment dated 22/11/2006, whereby the prayer of the petitioner to consider his case for the benefits under the 'OTS' was directed to be considered and disposed of. The reference made by the petitioner to Exts. P6. P7 and P8 instances where the Bank had settled similar loans of much higher extent, that too for lower settlement value as projected therein was also taken note of in Ext. P9 judgment. 7. However, the Bank, instead of honouring the Ext. P9 verdict in the right spirit, sent Ext. The reference made by the petitioner to Exts. P6. P7 and P8 instances where the Bank had settled similar loans of much higher extent, that too for lower settlement value as projected therein was also taken note of in Ext. P9 judgment. 7. However, the Bank, instead of honouring the Ext. P9 verdict in the right spirit, sent Ext. P10 reply, turning down the request for the 'OTS' benefit, which made the petitioner to pursue his remedy by way of appeal against the final order passed on merits and accordingly approached the DRAT, Chennai by filing IN 1122/2008. By that time, since there was delay in filing the said appeal, because of the on-going proceedings as referred to above, the petitioner had also filed Ext. P11 application (IA159/2009) to condone the delay, explaining the reasons for the same. It is seen that the respondent Bank, though entered appearance through a counsel, did not file any statement of objections: nor was there any representation, when the matter was taken up for hearing. Despite this, the petition filed by the petitioner for condoning the delay in filing the appeal was turned down by the Appellate Tribunal with cost, as per Ext. P12, which in turn has been subjected to challenge in the present writ petition. 8. Learned Counsel for the petitioner submits that, the attitude and approach of the respondent Bank was very much recalcitrant and discriminatory; particularly, in the matter of settling the arrears, enabling the defaulters to clear the outstanding liability. In any view of the matter, the merits of the decision passed by the DRT, Ernakulam having been challenged by filing the statutory appeal before the Appellate Authority, according to the learned counsel, the Appellate Authority ought to have given an opportunity for the petitioner to expose the merits of the case involved. The grievance of the petitioner is that, by passing Ext. P12 order, dismissing the IA to condone the delay, the door of truth was shut for ever; which is sought to be interfered by this Court. 9. Learned Counsel appearing for the respondent Bank submits that the attitude and approach being displayed by the petitioner cannot but be deprecated. It is also brought to the notice of this Court that, the petitioner, while admitting that there was sufficient fund in his FD account, had committed default in effecting the due repayment to the Bank. 9. Learned Counsel appearing for the respondent Bank submits that the attitude and approach being displayed by the petitioner cannot but be deprecated. It is also brought to the notice of this Court that, the petitioner, while admitting that there was sufficient fund in his FD account, had committed default in effecting the due repayment to the Bank. This by itself will show the actual conduct of the party and hence the averments made in the writ petition do not deserve to be considered with any sympathy at all; submits the learned Counsel. It is also pointed out that, the reasoning given by the Appellate Tribunal for dismissing the petition to condone the delay in filling the Appeal is perfectly in accordance with law and is not assailable. 10. Going by the impugned order passed by the Appellate Tribunal (Ext. P12), the only point considered was as to the statutory requirement to have filed the appeal within the prescribed time. It appears that the Appellate Tribunal was more concerned with the extent of delay (1210 days) in filing the appeal. Even though it was brought to the notice of the Appellate Tribunal as to the sequence of events and the various proceedings being pursued between the petitioner and the Bank, including filing of writ petition before this Court, the same has been simply given a 'go-bye', as observed in paragraph 7 of the impugned order, to the effect that the writ petition filed before the High Court of Kerala and the 'OTS' claim submitted by the petitioner could not be a sufficient ground to condone the delay of 1210 days' in filing the appeal and hence interference was declined with a 'Cost' of Rs.5,000/-. 11. It is relevant to note that the Appellate Tribunal itself has noted in paragraph 3 of the Ext. P12 order that, though the respondent Bank appeared through a Counsel, subsequently there was no representation and hence the petitioner alone was heard at the time of passing the order. In other words, the reasons stated for condoning the delay as contained in the Ext. P11 affidavit in support of the concerned IA was never chosen to be rebutted from the part of the respondent Bank at any point of time. This shows that the pleadings in this regard stand un-controverted. In other words, the reasons stated for condoning the delay as contained in the Ext. P11 affidavit in support of the concerned IA was never chosen to be rebutted from the part of the respondent Bank at any point of time. This shows that the pleadings in this regard stand un-controverted. Un-rebutted pleadings are liable to be treated as 'admissions' and admitted fact need not to be proved at all, in view of the mandate under Section 58 of the Indian Evidence Act, as made clear by the Apex Court, vide the decision rendered in Ragavendra Kumar v. Firm Prem Machinery & Co., 2000 (1) SCC 679 . This being the position, it was not at all correct or proper on the part of the Appellate Tribunal to have shut it eyes against the actual facts and figures. More so when, it has been held by the Apex Court in the decision rendered in N. Balakrishnan v. M. Krishnamurthy, 1998 (7) SCC 123 that length of delay is no matter, acceptability of the explanation is the only criterion. In the instant case, the Appellate Tribunal has quite casually observed that pendency of the writ petition before the High Court of Kerala and subsequent direction given to the Bank to consider the OTS proposal submitted by the petitioner can't be considered as a sufficient ground to condone the delay involved. This is nothing but shutting the eyes to make it dark and is against the clear mandate given by the Apex Court; which hence is not liable to be accepted as correct or sustainable. That apart, there is absolutely no rhyme or reason for awarding the cost of Rs.5,000/-, when even according to the Appellate Tribunal, there was no representation for the Bank and further more, when no objection was filed with respect to Ext. P11. 12. In the above facts and circumstances, this Court does not find it proper to sustain Ext. P12 order impugned in this writ petition and hence it is set aside and the IA filed to condone the delay in filing the Appeal is allowed. The petitioner will be permitted to agitate the matter on merits. The petitioner shall produce a copy of this judgment before the Appellate Tribunal and on such an event, the Appeal shall be posted, issuing notice to the respondent Bank for hearing on merits. The writ petition is allowed accordingly. The petitioner will be permitted to agitate the matter on merits. The petitioner shall produce a copy of this judgment before the Appellate Tribunal and on such an event, the Appeal shall be posted, issuing notice to the respondent Bank for hearing on merits. The writ petition is allowed accordingly. No costs.