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2011 DIGILAW 378 (BOM)

Hiralal Bakaram Takwat v. Central Bank of India

2011-03-22

ALLAH RAHAM

body2011
JUDGMENT : ALLAH RAHAM, J. (Chairperson) 1. This appeal impugns the order dated December, 2008 passed by the then learned Presiding Officer, Debts Recovery Tribunal, Nagpur, whereby the appellants' application M.A. No. 31/2008 for condonation of delay was dismissed. It appears that Original Application No. 69/2001 was decided by the Presiding Officer on 22nd February, 2008. The Presiding Officer had also declared that the outstanding is secured by following mortgaged property of the defendant No. 5: Plot No. 7 having total area of 5320 sq. ft. 76 feet North South and 70 Feet East West with house standing thereon, situated at Maouja Lendra, M. No. 368, Thak No. 183, PH No. 30/90, within the limits of Nagpur Municipal Corporation and Nagpur Improvement Trust, Nagpur. LRs of D-3 are at liberty to pay the amount within there months for avoiding sale of the above property. 2. The appellants herein claimed half share in the plot and on the basis of the claim the appellants filed application for review/modification/alteration of the judgment dated 22nd February, 2008 passed by the DRT. This application was filed in April, 2008. Application being M.A. No. 21/2008 was also filed for condonation of delay. 3. The learned Presiding Officer heard learned Counsel for the parties and dismissed M.A. No. 31/2008. 4. Aggrieved against aforesaid order, the appellants have filed this appeal. 5. I have heard the learned Counsel for the parties and have carefully perused the record. 6. Learned Counsel for the parties submit that the impugned order does deal with the reasons for not allowing the application for condonation of delay. On the other hand, the learned Presiding Officer has dealt with the merit of review application. In the end the learned Presiding Officer had dismissed the application for condonation of delay. Though no reasons have been given for dismissal of the same. It appears that the merit of the review application was looked into and the application for condonation of delay was dismissed. The merit of the review application could be looked into only after the condonation of delay application had been allowed. The learned Presiding Officer has, in fact, started with the condonation of delay application and concluded the order with reasons for not allowing the review application. The correct procedure was to deal with the application for condonation of delay and the same should have been disposed of with a reasoned order. The learned Presiding Officer has, in fact, started with the condonation of delay application and concluded the order with reasons for not allowing the review application. The correct procedure was to deal with the application for condonation of delay and the same should have been disposed of with a reasoned order. If the application for condonation of delay was allowed, then the review application could be dealt with on merit. For these reasons the impugned order cannot be sustained. The appeal, therefore, deserved to be allowed and the order under appeal deserves to be set aside. The case will be remanded to the DRT below to dispose of the application for condonation of delay on merit and then to proceed further with the application for modification/review, etc. In view of this, I pass the following order: ORDER Appeal is allowed and the impugned order is hereby set aside. The case is remanded to the DRT, Nagpur with a direction to decide the application for condonation of delay (M.A. No. 31/2008) according to law. If M.A. No. 31/2008 is allowed then to proceed to decide the application for review/modification/alteration according to law. Needless to say that the matter is quite old, the learned Presiding Officer shall expedite hearing of the case and shall conclude it at an early date. Costs of this appeal shall be on the parties. The learned Counsel for the respondent No. 1 Bank states at the bar that the respondent No. 1 Bank is not proceeding against the appellants' share in the property in question nor intend to do so.