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2016 DIGILAW 2416 (ALL)

Manoj Kumar v. Central Bank of India

2016-07-12

V.K.MATHUR

body2016
JUDGMENT : V.K. MATHUR, J. 1. Heard the learned Counsel for the Appellants in the delay condonation application. The present Appeal has been preferred by the Appellants under Section 18(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SRFAESI Act') against the order dated 19th December, passed by the learned DRT, Patna, wherein the Securitization Application No. 162/2011 died by the Appellants was disposed off. 2. The brief facts of the present case are that the Respondent-Bank sanctioned three credit limits for a total sum of Rs. 65.00 lacs in the years 2004 and 2005. In order to secure the said credit facilities the property was mortgaged with the Respondent-Bank. Since the Appellants failed to maintain the regularity, of the loan account therefore, the said accounts were classified as Non-Performing Asset. Thereafter, the Respondent-Bank had issued a demand notice dated 16th March, 2009 under Section 13(2) of the SRFAESI Act demanding a sum of Rs. 70,83,430.76 plus interest. 3. It has been further averred that on 17th October, 2010 the matter was settled in the Lok Adalat organised by the DRT, Patna for a sum of Rs. 72.90 lacs against the total amount of three credit facilities. It was further averred that the Appellants-Borrowers had only deposited Rs. 31.92 lacs with the Respondent-Bank but the remaining balance amount could not be deposited by the Appellants. Therefore, the Respondent-Bank proceeded further by issuing a possession notice dated 22nd January, 2011 under Section 13(4) of the SRFAESI Act to the Appellants. Thereafter, the Respondent-Bank published the E-auction sale notice dated 4th May, 2011 scheduling the auction of the property in question on 7th June, 2011 and accordingly the mortgaged property was auctioned by the Respondent-Bank for a sum of Rs. 1.25 crores to the Respondent No. 5 who is the auction purchaser. 4. The Appellants-Borrowers preferred the securitization application No. 162/2011 before the DRT, Patna challenging the auction proceedings of the Respondent-Bank, which was disposed off by the DRT, Patna vide impugned order dated 19th December, 2013 directing the Respondent-Bank to supply fresh calculation within 7 days from the date of the order to the Appellants and if, Appellants want to retain their property, then the Appellants pay the same within one month from the date of the order, as the auctioned property was still with the Appellants. It was also directed that on failure by the Appellants, the Respondent-Bank shall hand over the possession to the auction purchaser. Being aggrieved from the said impugned order, the Appellants preferred the present Appeal under Section 18 of the SRFAESI Act which is barred by 2 years and 5 months. 5. Heard the learned Counsel for the Appellants in the delay condonation application and perused the record of the case. 6. Learned Counsel for the Appellant has stated that the impugned order was passed on 19th December, 2013 by the DRT, Patna but the present Appeal could not be filed within the period of limitation since the Appellants filed a misc. Application No. 25 of 2014 on 17th January, 2014 before the DRT, Patna to challenge the order dated 19th December, 2013 passed by the learned DRT, Patna in S.A. No. 162/2011 which was decided on 25th March, 2014. 7. It was further submitted that the Appellants preferred a writ petition No. 11982 of 2014 before High Court, Patna challenging the order dated 19th December, 2013 and 25th March, 2014 passed by the Tribunal below which was dismissed on 27th April, 2016 on the ground of alternative remedy under Section 18 of the SRFAESI Act, 2002. 8. It was further submitted by the learned Counsel for the Appellants that the aforesaid writ petition was being looked after by the brother of the Appellants before the Hon'ble High Court, Patna, therefore, the Appellants had no knowledge about the order dated 27th April, 2016 passed by the Hon'ble High Court. It was further stated that the Appellants had come to know about the said order on 25th May, 2016 and after that they applied for certified copy of the said order on 6th June, 2016. It was prayed that the delay occurred in filing the present Appeal be condoned. 9. As per the provisions of the SRFAESI Act, 2002, the Appeal under Section 18 should have been filed within a period of 30 days from the date of the order passed by the Tribunal below under Section 17. The Appeal under Section 18 of the SRFAESI Act has been filed by the Appellants before this Tribunal on 21st June, 2016 which is after a delay of 2 years and 5 months. The Appeal under Section 18 of the SRFAESI Act has been filed by the Appellants before this Tribunal on 21st June, 2016 which is after a delay of 2 years and 5 months. It was also stated by the Appellants in the application that the delay is neither intentional nor wilful but due to not informing by the brother of the Appellants regarding the order dated 27th April, 2016 passed by the Hon'ble High Court, Patna. 10. The question for consideration is whether the averments disclosed any sufficient cause to condone the delay of 2 years and 5 months in filing the present Appeal. 11. In Ajit Singh Thakur v. State of Gujarat, (1981) 1 S.C.C. 495 , this Court observed : (S.C.C. p. 497, para 6) "6 It is true that a party is entitled to wait until the last day of limitation for filing an Appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the Appeal earlier, the sufficient cause must establish that because of some event or circumstances arising before limitation expired it was not possible to file the Appeal within time. No event or circumstances arising after the expiry of limitation can constitute sufficient cause." 12. The Hon'ble Supreme Court in the Basawaraj v. The Spl. Land Acquisition Officer, A.I.R. 2014 S.C. 746, has held that where a case has been presented in the Court beyond limitation, the Applicant has to explain to the Court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the Court within limitation. No Court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. In case there was no sufficient cause to prevent: a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the Legislature. 13. In case there was no sufficient cause to prevent: a litigant to approach the Court on time condoning the delay without any justification, putting any condition whatsoever amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the Legislature. 13. The Apex Court in case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 S.C.C. 649 , has laid down the principles regarding condonation of delay which are as under - (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact; (vi) The concept of liberal approach has to en-capsule the conception of reasonableness and it cannot be allowed a totally unfettered free play; xxxx (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go up by in the name of liberal approach; xxxx (xvii) The increasing tendency to perceive delay as a non-serious matter and, hence, lackdaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters." 14. The Appellants did not initiate any steps whatsoever before the expiry of the limitation and no circumstances have been placed before this Tribunal that steps were taken to file the present Appeal but it was not possible to file the Appeal within time. 15. In the facts and circumstances of the present case, the Appellants have admitted the knowledge of the impugned order dated 19th December, 2013, but have chosen to file the Appeal under Section 18(1) of the SRFAESI Act before this Tribunal on 21st June, 2016 after a delay of 2 years and 5 months for which no sufficient cause has been given and the delay has not been satisfactorily explained. The filing of writ petition before the Hon'ble High Court without stating any specific date and not informing about the order dated 27th April, 2016 of the Hon'ble High Court by the brother of the Appellants without stating specific details cannot be treated as sufficient cause and justifiable reasons to condone the delay in this matter. The filing of writ petition before the Hon'ble High Court without stating any specific date and not informing about the order dated 27th April, 2016 of the Hon'ble High Court by the brother of the Appellants without stating specific details cannot be treated as sufficient cause and justifiable reasons to condone the delay in this matter. In my considered opinion, the explanation offered by the Appellants for the said delay is completely unsatisfactory. 16. Therefore, in view of the law laid down in Esha Bhattacharjee v. Raghunathpur Nafar Academy (supra), Basawaraj v. The Spl. Land Acquisition Officer (supra), Ajit Singh Thakur v. State of Gujarat (supra) and from the conduct of the Appellants, it cannot be said that the Appellants were prevented by any just cause to present the Appeal before this Tribunal within time or that there was any sufficient cause to file the Appeal after an inordinate delay of 2 years and 5 months. 17. Thus, in present case there ere serious latches and negligence on the part of the Appellants in presenting the Appeal before this Tribunal. The delay in the present case cannot be mechanically condoned since the inordinate delay has not been properly satisfactorily and convincingly explained. 18. Thus, on overall consideration of the facts and circumstances of the case, there is no sufficient cause to condone the inordinate delay of 2 years and 5 months in filing the present Appeal before this Tribunal. Therefore the application for condonation of delay is rejected. 19. Consequently, the present Appeal is also dismissed as barred by time with no order as to costs.