Mahendra Singh Adil vs Syndicate Bank And Ors.

Ranjit Singh, J

Since respondent Nos. 2 to 4 have been impleaded as proforma respondents, an application (I.A. No. 281/2015) for deleting the said respondents from the array of the respondents is not called for. The application accordingly is disposed of. The present appeal is directed against an order dated 11.3.2013 passed by the Tribunal below allowing the O.A. filed by the respondent-Bank. The appellant has been held jointly and severally liable for the recovery of Rs. 20,75,604/- with simple interest @ 23.50% p.a. from 10.12.1996 onward. This appeal is now filed, which is delayed by 725 days. The appellant has accordingly filed an application seeking condonation of delay.

Notice on the application seeking condonation of delay as well as on the waiver application was issued. The Bank has filed reply to the application filed by the appellant seeking condonation of delay. The Counsel for the parties are accordingly heard on this application.

In the application seeking condonation of delay it is averred that the Tribunal below had dismissed the application filed by the appellant to withdraw his counter claim which was declaratory in nature, while deciding the O.A. on 11.3.2013. Pleading that the impugned order was coram non-judice, the appellant had preferred a Writ Petition No. 5104/2013 before the Hon'ble Delhi High Court to challenge the vires of Sub-sections (6) and (8) of Section 19 of the RDDBFI Act. It is averred that on 6.9.2013 the High Court dispose of the writ petition with the observation that for obtaining declaration, Civil Court can be approached.

The appellant would claim that on the basis of legal advice received he had filed Suit No. 2682/2013 before the Delhi High Court to seek declaration that nothing was legally recoverable and due from the appellant. The High Court initially was pleased to pass restraint order for recovery of this sum from the appellant. This stay order, however, was vacated on 11.3.2015. Apprehending initiation of recovery proceedings, the appellant filed the present appeal to challenge the R.C. on various grounds. It is accordingly pleaded that the appellant has been pursuing his remedy before various Fora and, thus, by virtue of Section 14 of the Limitation Act, the period spent by him from 11.3.2013 to 11.3.2015, when the stay order was vacated, is required to be excluded and, thereafter, delay, if any, would deserve to be condoned as the same is sufficiently explained as noted above.

The Bank in its reply has seriously opposed the prayer made in the application for condoning the delay. While denying the averment made in the application, the Bank has averred that no specific reason or cogent ground is advanced in the application for seeking condonation of delay. As per the Bank, the delay is wilful and the present appeal is termed to be filed with ulterior motive to delay the recovery of the decretal dues. The delay, as per the Bank, is of period of over two years as the present appeal is filed on 20.4.2015 against the order dated 11.3.2013.

It is averred in the reply filed by the Bank that in the O.A., which was filed in the year 1997, the Tribunal had granted time to the appellant to deposit Court fee on the counter-claim filed by the appellant. The Tribunal had held that if the appellant intended to proceed with the counter-claim, he would have to pay the Court fee on the claim of Rs. 29,84,655/-. Instead of filing Court fee on the amount of counter-claim, the appellant filed an application (LA. No. 156/2013) seeking permission to withdraw counter-claim to file suit stating to be declaratory in nature. The Tribunal did not grant this permission and, instead, dismissed the counterclaim.

On the other hand, the Counsel for the Bank has referred to the orders, which are on record, to show that the appellant has unnecessarily been dragging this case to delay the recovery of the dues of the Bank.

The Counsel for the Bank would also submit that the appellant has made misleading averments in his application. In this regard, he would refer to the order passed by the Hon'ble High Court where the appellant has sought condonation of delay of 5566 days delay in filing the suit. The High Court has noticed that the appellant was the plaintiff before the Tribunal below. The High Court has also taken note of the fact that the Tribunal had not granted him liberty to file counter-claim in an appropriate Court based on the same cause of action. It is observed that this liberty was declined taking into account the background conduct of the plaintiff that O.A. where the appellant had sought to withdraw the counter-claim in the year 2013 while the O.A. was filed in 1997. This delay, as per the Court, was frowned upon by the Tribunal where the appellant had not paid any Court fee on the counter-claim. The High Court has accordingly notice that the relief which is being sought by the appellant from the Court was in fact an attempt to undo the order and the recovery certificate issued by the Tribunal and is an indirect method of impugning the judgment of the Tribunal. The interim order which was earlier passed was accordingly vacated.

The Counsel would then refer to the order passed by the High Court dismissing the writ petition where the challenge was made to vires of Sub-sections (6) and (8) of Section 19 of the RDDBFI Act. While negating the challenge as made by the appellant, the High Court has clearly held that the counter-claims set-offs have to be raised before the DRT. It is observed that in case any declarations have to be obtained, Civil Court could be approached. When the appellant made an attempt to challenge the order dated 11.3.2013 on merit, the High Court observed that the appeal would lie against this order before the Appellate Tribunal. Thus, this writ petition was dismissed as infructuous on 6.9.2013. The appellant still, instead of filing appeal, chose to file a civil suit.

This is a case where the appellant knowing well has invoked the jurisdiction of a wrong Forum. The appellant was apprised about the proper remedy to impugn the order, but, still, he chose to go and file a civil suit which, ultimately, has been dismissed. The civil suit prima facie was not maintainable once such counter-claim had been filed before the Tribunal and was dismissed, may be on account of appellant having not deposited the Court fee. In the factual background of this case where the appellant chose to invoke the jurisdiction of wrong Forum one after the other, his plea for excluding the period he had been before the High Court certainly is not justified. Long ago, in the year 2013 itself the appellant was made aware of the remedy of appeal. But, he failed to invoke the same and continued to pursue a remedy which was wrongly invoked. The appellant has succeeded in delaying recovery proceedings for a considerable period.

The delay of over two years in filing the present appeal thus has not been sufficiently explained on the ground as pleaded by the appellant. I am, therefore, not inclined to condone this inordinate delay in filing the appeal and would dismiss the same on the ground of delay alone. In view of appeal being dismissed on merit, no further orders are called for on the application seeking waiver of pre-deposit.