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Judgment
S.N.H. Zaidi, J
The instant application has been filed by the appellant seeking condonation of delay in filing the accompanying appeal. No formal reply to the application has been filed by the respondents.
The appeal has been filed on 24.12.2012 against the order of DRT-II, Delhi passed in S.A. No. 36/2009 on 19.10.2012. According to the office report, the appeal is time-barred by 36 days whereas, according to the applicant, the delay is of 34 days only.
Ms. Sushmita Banerjee, appearing for the appellant/applicant, submitted that the appellant did not know about the passing of order impugned on 19.10.2012 and when it came to know about the same on 22.10.2012 it immediately asked its Counsel for providing the certified copy thereof but despite regularly pursuing him only a scanned copy of the order was made available to the appellant on 5.11.2012. She further submitted that the appellant again asked its Counsel for the certified copy of the order; which could ultimately be obtained on 27.11.2012. According to her, thereafter a new Counsel was engaged, who had drafted the appeal on 6.12.2012 and after the signature on the appeal memo it was given to the Counsel on 17.12.2012 and the appeal was filed on 24.12.2012. She also contended that in this process a delay of 34 days had occasioned which was neither deliberate nor intentional.
Ms. Banerjee pointed out that a Division Bench of the High Court of Punjab and Haryana in Surender Mahajan v. Debts Recovery appellate Tribunal & Ors., MANU/PH/0209/2013 has held that the provisions of Sections 4 to 24 of the Limitation Act are applicable to an appeal preferred against the order of the DRT under Section 18 of the SARFAESI Act and as such this Tribunal has power under Section 5 of the Limitation Act to condone the delay in filing the appeal.
Mr. Kunal Tandon, appearing along with Mr. Jaspreet Singh Kapoor for the respondents, however, opposed the application and pointed out that the perusal of the record would show that on 19.10.2012 the parties were first heard on M.A. No. 174/2009. which was filed by the S.A. applicants/respondents for the restoration of S.A. No. 36/2009 and after the disposal of said M.A. and restoration of the S.A. the parties were heard on the S.A. on the same day in the presence of Ms. Mahamaya Chaudhary, the Authorized Officer of the appellant/applicant and the order impugned was made on that very date. He contended that it is, therefore, incorrect to say that the applicant did not know about the passing of order impugned on 19.12.2012. He further contended that no cause has been shown that on getting the information of the order impugned on 22.10.2012 why no effort was made by the appellant/applicant to obtain its free copy and the certified copy of the order filed along with the appeal memo would show that it was delivered on 31.10.2012 and in view of this it could not be believed that the certified copy of the order was obtained on 27.11.2012, as alleged, and as such the appellant has failed to sufficiently explain the delay from 31.10.2012 to 27.11.2012.
I have considered the submissions of the parties Counsel and perused the record. This Tribunal is bound by the proposition of law laid down by the Hon'ble Punjab & Haryana High Court in the case of Surender Mahajan (supra) and it is accordingly held that Section 5 of the Limitation Act applies to an appeal filed under Section 18 of the SARFAESI Act and it can be resorted to for condoning the delay, but it is to be seen whether or not the cause of delay shown is sufficient for condoning the same as it depends upon the facts and circumstances of each case.
Having considered the facts and circumstances of this case, I am of the view that since the appellant's Counsel and its Authorized Officer were present on 19.10.2012 when the S.A. was heard and the order impugned was made, therefore, it cannot be accepted that the appellant did not know of that order on that date and came to know about it on 22.10.2012. Moreover, certified copy of the order impugned accompanying the appeal memo shows that it was received on 31.10.2012 and as such it is again not acceptable that the certified copy of the order was obtained by the appellant on 27.11.2012. I am also of the view that if, according to the appellant/applicant, appeal was drafted by its Counsel on 6.12.2012 then it should have been filed immediately after complying with the requirement of its signing and verification without any further loss of time as the limitation period of 30 days from 31.10.2012, the date on which the copy of order was received, had already been expired. The appellant/applicant has not shown any reason as to why its authorized signatory took 11 days in signing and verifying the appeal memo at Delhi itself as the same could have been done in a day or two. It is also pertinent to note that, according to the appellant/applicant, a scanned copy of the order impugned was sent by its earlier Counsel on 5.11.2012 and since the period of limitation was available on that date and if the appellant was aggrieved with that order, it could have taken necessary steps for filing the appeal within the period of limitation, but no reason has been shown for not filing the appeal within that period.
In view of the aforesaid I am of the considered view that the appellant/applicant has miserably failed to show any sufficient cause of delay in filing the appeal and as such the delay cannot be condoned and the application, being devoid of force, is liable to be dismissed. The application is accordingly dismissed. Since the appeal has been filed beyond the period of limitation, therefore, the same is dismissed accordingly.
Copy of this order be furnished to the parties as per law.