K. Premsagar Rao vs Bank of India

Anil Kumar Srivastava, Chairperson

THE APPELLATE TRIBUNAL :

Admission

I.A. No. 253 of 2024 application under Section 5 of Limitation Act for condonation of delay in filing the Appeal.

Heard the Learned Counsel for the Appellants. Having considered the submission, I found the grounds to be sufficient. Delay is condoned. I.A. No. 253 of 2024 is allowed.

Heard the Learned Counsel for the Appellants and perused the record. Instant Appeal has been preferred against an order dated 05.04.2024 passed by the Learned DRT-2 Hyderabad in I.A. No. 690 of 2024 arising out of O.A. No. 902 of 2018 whereby an application under Section 22(2)(g)(f) of Recovery of Debts and Bankruptcy Act, 1993 r/w Order IX rule 7 of Civil Procedure Code was filed for setting aside the order dated 10.12.2019 passed by the Learned DRT. Learned DRT dismissed the I.A. holding that no tangible ground is made out to set aside the exparte order dated 10.12.2019.

Feeling aggrieved, Appellants herein preferred the Appeal.

An O.A. No. 902 of 2018 was filed by the Bank of India against the Appellants herein along with other Respondents for issuance of a Recovery Certificate for an amount of Rs.88,60,96,750/- on 28.11.2018. Appellant herein who were defendants before the Learned DRT were served but did not file the written statement and sought time to file the same. On 04.07.2019 time was sought to file the written statement which was granted till 08.08.2019 subject to payment of Rs.100/- as cost. Again on 08.08.2019 although costs were paid but written statement was not filed and time was sought which was extended upto 09.09.2019 subject to payment of Rs.150/- as cost. A last chance was also given to the Appellants. Again on 09.09.2019 although costs were paid but written statement was not filed and time was sought to file the same. Time upto 10.10.2019 was granted subject to payment of Rs.150/- as cost with a specific direction that if the written statement is not filed, their right would be forfeited. Even then, the written statement was not filed and again on 05.11.2019 time was sought for filing the written statement by the Appellant herein along with other defendants. Learned DRT extended the time till 10.12.2019 subject to payment of Rs.250/- as cost. Again, a direction was issued that if the written statement is not filed, right to file the W.S. shall stand forfeited. Ultimately, on 10.12.2019 neither the costs were paid nor written statement was filed by the Appellants and other defendants. Even nobody was present on call. Accordingly, Learned DRT fixed the matter for exparte hearing and granted opportunity to the O.A. Applicant to file the evidence fixing on 12.12.2019. Thereafter, in the month of January, 2024, an I.A. No. 690 of 2024 was filed by the Appellant for setting aside the order dated 10.12.2019 on the ground that on 10.12.2019 his Counsel was held up in the Hon’ble High Court. Hence, orders proceeding exparte against the Appellant herein were passed. It is further stated that non appearance on 10.12.2019 was neither wilful nor wanton with bona fide reasons.

Opposition was filed against the application stating that the Appellant were having full knowledge and information of the proceedings. They are moving an application only with an intention to delay the proceedings.

After hearing the Learned Counsel for the parties Learned DRT dismissed the application holding that the Application is filed after four years of passing the order dated 10.12.2019. No reasons are given as to why so much long time was taken for moving the application.

Learned Counsel for the Appellant would submit that the Appellant was bona fidely contesting the proceeding before the DRT. On 10.12.2019 his Counsel was engaged before the Hon’ble High Court and could not appear before the DRT. Accordingly, orders proceeding exparte against the Appellants were passed. Learned Counsel also tried to make a submission regarding pendency of some matters before the Hon’ble NCLT.

It is settled proposition of law that the grounds taken in the Application should be well considered by the Learned DRT. If the Appellants wants to get an order recalled or set aside, he should have to state and show his bona fides and sufficient cause.

As would appear from the record Appellant herein was continuously seeking time to file written statement from 04.07.2019. Further, even last opportunity was granted by the learned DRT for filing the written statement but the written statement was not filed. Sufficient opportunity was given to the Appellant to file the written statement. Conduct of the Appellant in the proceedings itself demonstrates the intention to delay the proceedings by not complying the orders of the DRT. Even last opportunity was twice granted by the Learned DRT but even then the written statement was not filed. It shows that the only purpose of the Appellant was to delay the proceedings on any ground whatsoever it may be. Thereafter, on 10.12.2019 it is stated that his Counsel was engaged before the Hon’ble High Court. Even if for the sake of arguments it is accepted then, on 10.12.2019 the next date was fixed was 12.12.2019. Appellant was well within his knowledge about the date fixed i.e. 10.12.2019. If his Counsel was engaged before the Hon’ble High Court on 10.12.2019 then subsequently, on the same date Appellant or his Counsel should have enquired about the fate of the matter and thereafter could have moved an application for appropriate orders recalling the order dated 10.12.2019. But Appellant did not pursue the matter. In the Application for setting aside the order dated 10.12.2019 in Para 3 the only ground taken is that on 10.12.2019 Appellant’s Counsel was engaged before the Hon’ble High Court. There is no explanation as to why even after 10.12.2019 Appellant could not move an application or put an appearance till January, 2024 when I.A. No. 690 of 2024 is filed before the DRT. This all shows the mala fides on the part of the Appellant. No doubt law prescribes that opportunity of hearing should be granted to a party but when litigant himself is misusing the process of law, he cannot be permitted to misuse the law. Accordingly, I am of the considered view that the Appellants themselves intentionally did not appear before the DRT. Accordingly, I do not find any merit in the Appeal which is dismissed in limini at admission stage.

ORDER

The appeal being Misc. Appeal Dy. No. 418 of 2024 is dismissed in limini at admission stage. Impugned order dated 05.04.2024 passed by Learned DRT-II Hyderabad in I.A. No. 690 of 2024 is confirmed.

No Order as to costs.

File be consigned to Record Room.

Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

Copy of the Judgment/ Final Order be uploaded in the Tribunal’s Website.

Order pronounced by me in the open Court on 18th day of June, 2024.