Canara Bank vs Spl Electrotech Pvt. Ltd. And Ors.

S.N.H. Zaidi, J

Heard parties'. Counsel on application (I.A. No. 861/2012) filed by the appellant for condonation of delay in filing the appeal. As per the office report, the appeal is time-barred by 479 days.

Mr. Saluja submits that the concerned O.A. No. 196/2008 was filed on 5.11.2008 for the recovery of more than Rs. 3 crores wherein the respondents had submitted a proposal for one time settlement (OTS), which was accepted by the Bank on 27.2.2009 and after the deposit of settlement amount in terms of the OTS, the Bank had released the securities to the respondents on 4.3.2009. He further submits that since there was no Presiding Officer in the DRT concerned, therefore, the O.A. remained pending and on 30.11.2010 the Bank filed an application for withdrawal of the O.A., but before that application could be disposed of, a counter claim was filed by the respondents on 27.5.2011 and the learned Tribunal below, vide the order impugned dated 20.7.2011, refused the withdrawal of the O.A. on the ground of pendency of the counter claim for adjudication.

Mr. Saluja also submits that this appeal has been filed against that order on 24.12.2012 as the then Chief Manager of the Bank, who was looking after the O.A. before the Tribunal below, had applied for the voluntary retirement on 6.7.2011, which was allowed and he took retirement on 7.10.2011 and in view of these circumstances, further steps for challenging the order impugned dated 20.7.2011 in appeal could not be taken in time and after the taking over of the new Chief Manager when the matter was critically examined at the appropriate level of the Bank, then the appeal could be filed on 24.12.2012 and in that process a delay of more than a year had occurred. According to him, the delay was bona fide and it was neither deliberate nor intentional. He also contends that the appellant being a Governmental institution, the delay had occasioned due to procedural technicalities. Mr. Saluja has relied upon the judicial authorities in State Bank of India v. Taril Appliances and Equipment, II (2007) BC 515 (DB) : AIR 2006 Calcutta 121, State Bank of India v. Neermali Das & Ors. III (2006) BC 488, Bank of India v. Chotanagpur Graphite Industries, 1 (2007) BC 53 (DRAT, Kolkata), Gurudas Adak v. The State of West Bengal & Ors. CAN 518/2012 decided on 23.2.2012 and M.K. Prasad v. P. Arumugam, V (2001) SLT 487 : AIR 2001 SC 2498.

Mr. Kakra, on the other hand, submits that the order impugned dated 20.7.2011 was made in the presence of Bank's Counsel and Mr. P.C. Bansal, the Manager of the appellant Bank and since on some of the subsequent dates from 6.2.2012 up to 11.12.2012, the Chief Manager of the Bank as well as its Chief Manager (Law) had appeared along with its Counsel in the proceedings before the Tribunal below, therefore, the appellant Bank shall be deemed to have knowledge of the order impugned and it cannot take the plea that it was not aware of it, as such the cause of delay in filing the appeal in time, as alleged by the applicant, cannot be accepted. He also points out that the appellant Bank has already filed its written statement to the counter claim and the evidence of the parties has also been completed and the matter is now listed before the Tribunal below for final arguments.

Considering the submissions of the parties' Counsel and looking to the facts and circumstance of the case, 1 am of the considered view that the appellant Bank has failed to show sufficient cause of delay in filing the appeal within the period of limitation. The alleged ground of delay of voluntary retirement of the concerned Chief Manager cannot be accepted as a sufficient ground of delay as the said officer was relieved in October, 2011 and thereafter the new incumbent had taken over and was pursuing the matter before the Tribunal below from February 2012, whereas the appeal has been filed on 24.12.2012, for which there is no explanation on record as to why the appeal could not be at the earliest. The case law cited by Mr. Saluja being on different facts and circumstances, does not appear to have any application to this case. It is pertinent to note that the Tribunal below has refused the withdrawal of the O.A. on the ground that the counter claim filed by the defendant is pending adjudication. Though the purpose of filing the O.A. was achieved by the deposit of the settlement amount with the Bank in terms of the OTS, but since the counter claim was still to be adjudicated upon, therefore, the withdrawal of the O.A. was rightly refused.

Since the appellant/applicant has failed to show any sufficient cause of delay of 479 days in filing the appeal, hence the delay cannot be condoned and the application being devoid of any merit is liable to be dismissed and is dismissed accordingly. As the appeal has not been filed within the period of limitation, therefore, it cannot be admitted for hearing and is dismissed accordingly.